Q. Why the custom has been accorded the source of law? Explain and illustrate. [10 marks - 2023]
Q. What is conventional custom? When does it become binding? [10 marks - 2019]
Q. What are essentials of valid local custom? [10 marks - 2018]
Custom
Custom can simply be explained as those long-established practices or unwritten rules which have acquired binding or obligatory character.
There are multiple views on whether custom can be considered as a source of law. Austin opposed custom as a law because it did not originate from the will of the sovereign. However, Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign.
In India many customs have been incorporated as law. For example, the customary practice of Saptapadi or sat phera has been incorporated in Section 7 of the Hindu Marriage Act, 1955.
Customs can be of two types:
Customs without sanction: These are non-obligatory in nature.
Customs with sanction: These are binding in nature and are enforced by the
State. These customs may further be divided into the following categories:
(1) Legal Custom: Legal custom is a custom whose authority is absolute; it
possesses the force of law. It is recognized and enforced by the courts. Legal
custom may be further classified into General custom and Local custom.
(a) General Customs: Customs that prevail throughout the territory of the State.
(b) Local Customs: Local customs are applicable to a part of the State, or a
particular region of the country.
(2) Conventional Customs: Conventional customs are binding on the parties to an agreement. When two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established convention or usage of that trade. For instance, an agreement between landlord and the tenant.
Essentials of a valid custom:
The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows:
1. Antiquity: In order to be legally valid customs should have been in existence for a long time, even beyond human memory.
2. Continuous: A custom to be valid should have been in continuous practice without any kind of interruption.
3. Exercised as a matter of right: Custom must be enjoyed openly and with the
knowledge of the community. It should not have been practised secretly.
4. Reasonableness: A custom must conform to the norms of justice and public utility.
5. Morality: A custom which is immoral or opposed to public policy cannot be a valid custom.
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