Discuss the importance of custom as a source of Hindu law. Point out the essentials of a valid custom. Can a custom in derogation of a general rule be construed liberally by the court?

Question: Discuss the importance of custom as a source of Hindu law. Point out the essentials of a valid custom. Can a custom in derogation of a general rule be construed liberally by the court?

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Answer

One of the most important questions that arise in the mind of the common man concerning the law is how it came to be or to be more precise what are the sources of law. There are various sources of law but custom is regarded as one of the oldest sources. In primitive societies when there was no legislation or precedents to decide a case, basically customs were used to regulate people’s lives. Customs used to develop spontaneously as per the situation and circumstances. When certain acts get practiced for a long period of time, it comes into the habit of people and thus take the shape of custom.

Custom has been defined under the Hindu Marriage Act, 1955, and Hindu Adoptions and Maintenance Act, 1956 as follows:

The expression “custom” signifies any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group of the family;

Provided that the rule is certain and not unreasonable or opposed to public policy, and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.

Section 5 of Hindu Marriage Act Clauses (iv) and (v) talk about prohibited relationships and Sapindas. Marriages of such kind are allowed if the custom of both parties permits.

Essentials of a valid Custom

a) Custom should be ancient – It is important that custom should be in practice for a long period of time with an invariability. As held in the case of Thankamma v. N Kunjamma AIR 1986 Ker 134, the custom is said to be immemorial, when its origin was ancient, that the origin or beginning of it was beyond human memory, so no evidence was available as to a time when it did not exist.

b) Custom should be Continuous – Custom should have consistency and Continuity. This means thereby if a custom gets abandoned after 200 years of its practice, that situation custom cannot be revived.

c) Custom should be certain – Universality in Observance is the utmost requirement for the custom being a valid custom. If there exists any ambiguity or any kind of confusion then it cannot be put under the criteria of a valid custom.

d) Customs need to be reasonable – Reasonableness of a valid custom is dependent on the time and social values. The principles of justice, equity, and good conscience must adhere while deciding a custom is valid. Whether a custom is reasonable or not is determined by the contemporary values of every society, though there are certain rules or practices which are considered unreasonable at all times and in all societies. Custom must be in conformity with justice and public utility as observed in the case of Thankamma v. N Kunjamma.

e) Custom should not be immoral – Like the standard of reasonability, the standard of morality may vary from time to time and from society to society. A custom that is immoral is void.

In the case of Raja Vurmaha v. Ravi Vurmaha (1964), it was held that an alleged custom permitting a woman to leave her husband and to remarry without his consent, or a custom permitting a husband to pronounce divorce on payment of a sum of money to the wife without her consent, or custom under which adoptive parents pay a sum of money to the natural parents at the time of adoption, or a custom under which the trustees of a religious institution are allowed to sell their trust is void being against morality.

f) Custom must not be opposed to public policy – Any custom which is against the general good of the society is always considered to be invalid. In one of the famous cases of Mathura v. Esa (1883) 4 Bom 545, a custom among dancing girls permitting them to adopt one or more daughters has been held to be void being opposed to morality and public policy.

g) Custom should not be against law – Here, the law is specifically about statutory law and custom should not be against it. The codified Hindu Law has abrogated custom expressed in a few matters where it has been expressly saved.

Custom must be ancient, reasonable, certain and being in derogation of the general rules of law, must be construed strictly. Whenever it happens that a custom, derogatory to law, is practiced by a family governed by Hindu Law, under such a situation the burden is on that family to prove it as custom.

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