‘Custom is a question of fact and not of inferences.’ Comment and elucidate.

Question: ‘Custom is a question of fact and not of inferences.’ Comment and elucidate. [HJS 2007, 2008]

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Answer

Custom is believed to be based on long-established practices and unrecorded revelations. Custom in its legal connotation means a rule in a particular family, class or district that has obtained the force of law from long and continuous usage. It must be ancient, certain, reasonable, and continuous. Where it is found to be in derogation of general rules of law, it must be strictly construed.

It literally means a continuous course of conduct that may have the approval of a particular society and is used as a measure for the administration of it. A rule of conduct that is consistently used by a society in the form of usage, tradition, or habit can be regarded as a custom. But merely mentioning that a custom has been followed for a long time does not give it validity.

It was laid down by Privy Council in Mst. Subhani v. Nawab, I.R.L. 1941 p. 154, that it is undoubted that a custom observed in a particular district derives its force from the fact that it has long been a usage in that district and obtained the force of law. It must be ancient, but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man-still less than it is ancient in the English technical sense.

It is necessary to prove 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 submitted to the established governing rule of the particular district. Later on, this decision was followed by the Supreme Court in Gokal Chandra v. Praveen Kumar, AIR 1950, SC 231.

Essentials of custom

The Supreme Court in Shiromani v. I. Hemkumar & others, AIR 1968 SC 1299, observed that a custom must be proved to be ancient, certain, and reasonable if it is to be recognized and acted upon by courts of law. The following are the essentials of a valid custom –

Ancient

Customs must be ancient, immemorial, and of long-standing demonstrably to establish that by common consent, they have been accepted as the law governing a particular family, caste, or locality, as the case may be. In Mt. Subhani v. Nawab, (1941) Lah. 134 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.

Invariability and continuity

Continuity and invariability are among the other essential requirements of a valid custom. A custom, however old it may be, in the absence of clear proof of its continuous observance without any variation, it would not obtain legal existence.

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. Therefore, reasonableness is to be determined in the context of the society in which it exists. There may be certain customs which are to be held unreasonable at all times and in all societies.

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 assume its existence. Any recognition of 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.

Not opposed to morality or public policy

A custom should be neither immoral nor opposed to public policy. Immoral custom is void. It should not be immoral or opposed to public interests. The immorality of a custom is to be tested in the context of consensus of the whole community, not of a part of it.

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 law. The term ‘law’ in the present context is indicative of statutory law and the mandatory texts of Dharmashastra law.

Onus

The burden of proving the existence of a custom lies on the person who alleges it. Where the Hindu family members set up a custom derogatory to the law, the burden lies on them to prove the custom. A custom that has been judicially recognized needs no further proof. The Supreme Court, in Munna Lal v. Raj Kumar, AIR 1972 SC 1493, 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 case.

Judicial notice of a custom

A court takes judicial notice if a custom is so clearly established that no further evidence of its existence is necessary. Such custom will form a part of the law without any further proof. The Supreme Court upheld in Ass Kaur v. Kartar Singh, AIR 2007 SC 2368, that when a custom has repeatedly been recognized by the courts, the same need not be proved.

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