Class custom must not be immoral, or opposed

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 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.

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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.”

Thus, in order to be valid, a custom must satisfy the following six requirements:

(a) It must be ancient. A custom must be of long standing, which would indicate that, by common consent, it has been accepted as the law governing a particular locality, class or family. If need not be of immemorial antiquity, but a long usage is absolutely necessary.

(b) It must be certain. In order to make a custom definite and certain, universality in observance is absolutely necessary. If the custom is varied from time to time, there will be no universality, and consequently, it will not be a valid custom.

(c) It must also be reasonable. This means that it should be in accordance with the rules of justice, equity and good conscience.

(d) It must be continuous. Continuity is pre-requisite for the validity of a custom. If a custom is well-established, it is continuous. It does not start and end by fits and starts. However, if there is a breach of a custom in a particular instance, it cannot be said that the custom is destroyed, because it may continue to be applicable thereafter.

In the case of class customs and local customs, once a Court takes judicial note of such customs, i.e., once such customs are recognised by the Courts, there is no need to give positive proof of their continuity in future cases. Rather, the party who alleges their discontinuance would have to prove such discontinuance. In the case of family customs, however, positive proof of their continuance is always required. The several enactments relating to Hindu Law also provide that if a custom consists of a rule applicable only to a family, it should not have been discontinued by such family.

(e) It must not be opposed to morality or public policy. Although the standards of morality vary from time to time, from place to place, and from community to community, the Courts take upon themselves and responsibility of determining what is moral in the facts and circumstances of the particular case. If a custom is immoral or opposed to public policy, it will naturally not be enforced.

(f) It must not be opposed to any law. In order that the custom be a valid one, it is also essential that it must not be forbidden by any act of the legislature. If it is so forbidden, the Courts will not recognise such a custom, although it may satisfy all the other requirements of a valid custom. Thus, the following are examples of customs, which the Courts have refused to recognise:

(i) A caste custom, authorising a wife to abandon her husband, and marry again without his consent.

(ii) A custom permitting a husband to dissolve his marriage without the consent of the wife by paying a fixed sum of money.

(iii) The custom among dancing girls of adopting one or more daughters.

(iv) A custom in South India, according to which a man could marry his daughter’s daughter.

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.