Legal Learning: Custom as a Source of the Hindu Law

Customs are an Important Source of Hindu Law

Customs may be broadly divided into

Local customs
Class customs
Family customs

local customs: Local customs are those which are confined to a particular locality like a district, town or village, and are binding on all the inhabitants of that locality.
class customs: Class customs are the customs of a caste or a sect of the community or the followers of a particular profession or occupation, such as agriculture, trade and the like.
family customs: Family customs are confined to a particular family only and do not apply to persons who are not members of such family.

Essentials of Valid Custom:

In Hurpurshad v. Sheo Dayal (1876, 3 I.A. 259), the Privy Council observed that “a custom is a rule which, in a particular family, or a particular caste or community, or in a particular district, has from long usage obtained the force of law.
It must be ancient, certain and reasonable”. Moreover, such a custom must not be immoral, or opposed to public policy, or expressly forbidden by law.
On this point, the Privy Council has observed: “Their Lordships are fully sensible of the importance and justice of giving effect to long established usages existing in particular districts and families in India, but it is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable, and it is further essential that they should be established to be so by clear and unambiguous evidence.”

Essentials of a Valid ‘Custom’ under Hindu Law:

The following are the 8 essentials of a valid custom:

Ancient,
Invariability and continuity,
Reasonableness,
Clarity and unambiguity,
Not opposed to morality or public policy,
Not opposed to express provisions of law,
Onus.
Judicial notice of a custom.

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.

Proof of custom:

A custom should be established before the Court by means of clear and unambiguous evidence.
If a party to the suit, who pleads a custom has produced general evidence of a reliable nature, showing that such custom prevails in that community, such evidence can be accepted.
Thus, if instances are cited to show the existence of a custom for a span of more than thirty years, it may rightly be inferred that the custom has been in existence even before such instances took place.
A judgment relating to the existence of a custom can be produced to corroborate the evidence adduced to prove a particular custom in another case. (Mst. Kesarbai v. Indarsingh, (1945) Nag. 1)

Burden of proof:

It is to be remembered that the burden of proof of a custom of Hindu Law which is derogatory to that law, is upon the person who asserts it.
Conversely, when a custom has been proved, the burden of proving its discontinuance lies on the party who alleges such discontinuance.

Judicial notice of a custom:

A Court takes judicial note of a custom if such custom is so clearly established that no further evidence of its existence is necessary.
When a custom or usage is repeatedly brought to the notice of the Court, such a custom will form a part of the law without any need of proof of such custom in every case in the future.
In these circumstances, the Courts are said to take “judicial notice” of that custom.

“Custom” and “usage” under Codified Hindu Law:

Under the codified Hindu Law, the expressions “custom” and “usage” are defined to signify 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 or family. However, such a custom or usage should be (i) certain, (ii) not unreasonable, and (iii) not opposed to public policy. Moreover, in the case of a rule applicable only to a family, it should not have been discontinued by that family.
Moreover, it is expressly provided by all the four major enactments of Hindu law (namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956) that, unless otherwise so provided expressly in any of these enactments, any custom or usage in force immediately before the commencement of the respective enactments is to cease to have effect with respect to any matter for which a provision has been made in the said Acts.
Attention may also be invited to S. 29(2) of the Hindu Marriage Act, 1955, which lays down that nothing in that Act is to be deemed to affect any right recognised by custom to obtain the dissolution of a Hindu marriage, solemnised either before or after the commencement of the Hindu Marriage Act.