The following are the essentials of a valid custom:—
(1) Ancient,
(2) Invariability and continuity,
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(3) Reasonableness,
(4) Clarity and unambiguity,
(5) Not opposed to morality or public policy,
(6) Not opposed to express provisions of law,
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(7) Onus.
(8) Judicial notice of a custom.
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The Supreme Court in a recent decision observed that a custom must be proved to be ancient, certain and reasonable if it is to be recognised and acted upon by courts of law.
(1) Ancient:
The custom must be ancient, immemorial and of long standing demonstrably to establish that by common consent they have been accepted as law governing a particular family, caste or locality as the case may be.
In point of time it is difficult to prescribe any time limit for the establishment of a custom as a valid source of law. It must be ‘immemorial’ which shows that it must be beyond the living human memory. The Courts have generally held hundred years observance as a requirement to hold a custom ancient. The Privy Council was of the opinion that it is not essential in every case that its antiquity is carried back to a period beyond the memory of man.
It will depend upon the circumstances of each case what antiquity must be established before the customs can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been accepted as the governing rule.
(2) Invariability and Continuity:
Continuity and invariability are among the other essential requirements of a valid custom. A custom, however, old it may be, in absence of a clear proof of its continuous observance without any variation it would not obtain legal existence. The Privy Council observed: “Their Lordships cannot find any principle, or authority, for holding that in point of law a manner of descent of an ordinary estate, depending solely on family usage, may be discontinued so as to let in ordinary laws of succession.
It is of the essence of family usage that they should be certain, invariable and continuous and well established. Discontinuance must be held to destroy them. Discontinuity is fatal to the legal existence of custom. Discontinuance sometimes may be accidental, in which case also the legal effect of custom may be negatived, where it is discontinued otherwise it would come to an end.
A custom loses force also by abandonment. Mayne has said that in the case of widely spread local custom, want of continuity would be the evidence that it had never had legal existence, but it is difficult to imagine that such a custom once thoroughly established, would come to a sudden end.
(3) Reasonableness:
A custom must be reasonable, although it is not necessarily founded on reason. But an unreasonable custom is void and no amount of reasoning would make it valid. Customs differ from place to place. The reasonableness is, therefore, to be determined in context of society in which it exists. There may be certain customs, which are to be held unreasonable in all times and in all societies.
(4) Clarity and Unambiguity:
Customs must be certain and unambiguous. It must also be established by clear evidence, because it is only by the force of such evidence that the courts can be assumed of its existence. Any recognition to its legal effect can be extended only when its unambiguity is proved. Where the existence of the custom itself becomes doubtful and uncertain the courts will not extend recognition to it.
(5) Not Opposed to Morality and Public Policy:
A custom should be neither immoral nor opposed to public policy. Immoral custom is void. It was clearly delineated by the writers of Dharmashastra that a custom should be the usage of the virtuous and should not be opposed to Dharmashastra. It should not be immoral or opposed to public interests. The immorality of a custom is to be tested in context of consensus of the whole community not of a part of it.
Thus custom whereby a temple dancing girl is allowed to adopt a girl with the intention of training her up in an immoral profession is invalid. Similarly, a custom permitting the trustees of a religious endowment to sell the trust has been held to be contrary to public policy.
(6) Not Opposed to Express Provisions of Law:
It is a necessary condition for a valid custom that it is not opposed to the mandatory provisions of a law. The term ‘law’ in the present context is indicative not only of statutory law but also of the mandatory texts of Dharmshastra law.
(7) Onus:
The burden of proving the existence of a custom lies on the person who alleges it. Where the members of a Hindu family set up a custom derogatory to the law, the burden lies on them to prove the custom. A custom which has been judicially recognised needs no further proof. The Supreme Court in Munna Lai v. Raj Kumar observed that when a custom was repeatedly brought to the notice of the court of a country, the court might hold that the custom had been introduced into the law without the necessity of its proof in each individual case.
In the case of a tribe or family which were not originally Hindus and have adopted Hindu usage in part, if it is alleged by any member that a particular Hindu usage has been adopted by the tribe or family, the burden lies upon him to prove that usage. Where a tribe or family is admittedly governed by Hindu law, but asserts the existence of a special custom in derogation of that law, the onus of course rests upon those who assert the custom to make it out.
A mere agreement among certain persons to adopt a particular rule cannot create a new custom binding on others, whatever its effect may be upon themselves.
(8) Judicial Notice of a Custom:
If a custom is so clearly established that no further evidence of its existence is necessary, a court takes judicial notice thereof. Such custom will form a part of law without any further proof. The Supreme Court upheld in Ass Kaur v. Kartar Singh, that when a custom has repeatedly recognized by the courts, the same need not be proved.