How does a custom originate? Write briefly about the role of the Supreme Court in preserving and developing the customs of the people.

Question: How does a custom originate? Write briefly about the role of the Supreme Court in preserving and developing the customs of the people. [HJS 2011]

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Answer

The repetitive manner of doing an act in a certain same way forms a custom. It is merely a process under which the same thing is done again and again in the same manner that first, it becomes a habit, and then when it is continued for a long time interval, it becomes a custom. Custom is how a member of any society is supposed to act on the basis of given a standard of rules and sets of regulations that were followed before them.

These are the practices that have been performed again and again over the course of time. The customs are created by people, by their unconscious usage of any particular practice for a long interval of time, that it gradually becomes the righteous way of doing so. These practices or traditions are followed for such a long interval of time that they implicitly get sanctioned by society and are converted into customary laws.

There are several theories about the origin of the word custom, some consider it to be originated from the French term ‘Coustume’ while some consider it to be from the Latin term ‘Consuetudo’. It is also regarded as a by-product of two words, ‘Con’, expressing intensive force, and ‘Suescere’, meaning becoming accustomed.

From wherever the word might have originated, it means a continuous use of practices, traditions, and usage that, with time, become binding on the society where they are being performed. It is a form of established practices considered as unwritten law subjected to a certain place.

Role of Supreme Court in preserving and developing customs

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 individual case.

In the case of Shakuntalabai v. Kulkarni, 1989 SC 1309, the Supreme Court held that an unbroken custom of divorce would be recognized under the law. Thus, a valid marriage could be dissolved on the basis of the customary mode of divorce, and no provision of any Hindu Law would apply to such customary forms of divorce.

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.

Further, in the case of Laxmibai v. Bhagwantbuva, AIR 2013 SC 1204, the Supreme Court observed that custom is a rule in a particular family and a particular class and community or in a particular district owing to prolonged use obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law unless the custom is expressly saved by it. Such custom must be ancient, uniform, certain, continuous, and compulsory. The court further observed that every custom cannot be extended by analogy or logical process and cannot be established by the prior method.

Most Hindu and other personal laws are based on customs and practices followed by the people all across the country. The Judicial support for the just and reasonable customary laws and their inclusion in modern laws have proved them to be much more than just a mere fear of religion.

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