When does custom become a law?
Salmond observes that law originating in custom passes through three successive historical stages:
Proof in a Court of Law:
First the existence of custom has to be proved in a court of law as a question of fact. Section 13 of the Indian Evidence Act contains a provision to this effect. When the existence of a custom is thus proved, the court accepts it and declares it to have been established.
When once the existence of custom is judicially established, subsequently courts of law take judicial notice of the custom and no more proof of it is necessary. Then, the law derived from custom has accordingly passed out of its first stage of being customary law, pure and simple, and has now become part of case-law originating in judicial decisions.
After passing through the stages of proof and judicial recognition, custom may reach third and last stage of legislative incorporation when it is embodied in an enactment passed by the legislature. The law of negotiable instruments is an illustration to the point.
Essentials of custom
Now, we shall consider the legal requirements which must be fulfilled by a custom before it can become a source of law.
Custom, to have the force of law, must be immemorial. It must have existed for so long a time that, in the language of law, “the memory of man runneth not to the contrary”(Blackstone), which means that no one at a given time remembers its origin. The custom must be so very old that it is beyond human memory. Recent or modern custom is of no use. The phrase “beyond human memory” being vague and uncertain, it was thought necessary and convenient in England to fix the limit of immemoriality at 1189 AD which is the year of corporation of Richard I. Thus, a valid custom must be so very old that it should have originated some time before 1189. If it has its origin after 1189, the custom is not immemorial and so not valid.
This idea of immemorial custom was derived by the law of England from the Cannon Law, and by the Cannon law from the Civil law. ‘Time immemorial’ means in the civil and cannon law and the systems derived therefrom, and originally meant in England also, time so remote that no living man can remember it or give evidence concerning it. Custom was immemorial when its origin was so ancient that the beginning of it was beyond human memory so that no testimony was available as to a time when it did not exist.
In the course of the development of English Law, however, a singular change took place in the meaning of this expression. The limit of human memory ceased to be a question of fact and was determined by a curious rule of law which still remains in force. Time of legal memory became distinguished from time of human memory.
Statute of Westminster which was passed in the year 1275, imposed a limitation upon actions for the recovery of land. It provided that no such action should lie, unless the claimant or his predecessor in title had possession of the land claimed at some time subsequent to the accession of Richard I. The original common law rule of limitation for such actions was the rule as to time immemorial. The enactment in question was accordingly construed as laying down a statutory definition of the term ‘time of memory’, and this definition was accepted by the courts as valid.
This English rule of Legal memory (1189 AD) is not applicable in India, but it must be proved that a custom is an ancient one.
A custom cannot come into existence by agreement. Similarly, no new custom can be recognized. In Deivain Achi v. Chidambara Chettiar (1954) the question was whether a group or organisation was free to lay down new ceremonies of marriage.
A Hindu marriage can be solemnized only with ceremonies prescribed by Sastras or by custom. If the parties do not observe any ceremonies whatever, there is no valid marriage.
The ‘Self Respectors cult’ in the State of Tamil Nadu organised a movement under which traditional ceremonies were substituted by simple ceremonies. The basic idea was to abandon the Brahminical ceremonies of marriage. The marriage ceremony consisted of an exchange of garlands between the bride and bridegroom. In this case the parties belonged to Anti-Purohit Association. The Association was opposed to having priests officiating at marriages. Accordingly the parties exchanged garlands in the presence of their friends and invitees. It was contended that this was sufficient for a valid marriage. The contention was rejected and held that the marriage was void. The main question before the court was, could this ceremony be considered as established by custom? Marriage took place in 1925. The court said that 25 years is not a sufficiently long period to elevate a practice to the rank of custom. Court was of the view that, in modern times, no one is free to create a law or custom. Customs cannot be created by associations or organizations or even by the State.
In Baby v. Jayanth, the ‘Mahr’ community of Maharashtra embraced Neo-Bhuddism being the followers of Dr.B.R.Ambedkar. They introduced a marriage ceremony of exchanging garlands before the statute or a photograph of Ambedkar, in the presence of invitees. The Bombay High Court held the marriage as valid considering that ceremony as customary ceremony. The Court held that there is social acceptance behind custom, and the community itself has adopted it, and hence such a custom is valid one.
Custom to be valid must be reasonable. It should, at any rate, be in conformity with the notions of justice and public utility. That does not mean that a judge can ignore a custom if he is not satisfied as to its absolute rectitude and wisdom. With human beings, nothing is absolutely perfect and to expect such perfection in custom is to deny it all validity. As we have seen above, custom creates rational expectations and judges must be slow in upsetting them. Thus, custom to be denied legal efficacy must be so patently unjust and unreasonable that its recognition and enforcement is more detrimental to the society, that is, the upsetting of rational expectations of the people.
In Raj Varma v. Ravi Varma, the question arose whether a custom recognizing the sale of trusteeship of a temple was a valid custom. The Privy Council held that the sale of trusteeship for the pecuniary advantage of the trustee was not a valid custom.
The period for ascertaining whether a custom is reasonable is the period of its inception. A custom then should not be repugnant to reason. The reason is not to be understood of every unlearned man’s reason but of artificial and legal reason warranted by authority of law. The reasonableness of a custom should be judged with reference to the general principles which are at the root of the legal system. A custom is contrary to reason if it is opposed to the principles of justice, equity and good conscience.
If a tenant was two years in arrears with his rent, the lord might enter and dispossess him until agreement was made for the arrears. It was held as bad.
Trespass for digging in the plaintiffs land, which was four acres adjoining the sea: It had been used from the time immemorial, when fishing in the sea, to dig in order to pitch stacks to hand out and dry their nets. This custom is against reason, if one digs in one place, another may dig in another place. By this custom they could destroy the whole meadow.
Conformity with Statute Law:
It is now very well established that custom must not be contrary to a legislative enactment and, in case of conflict, legislation invariably supercedes custom. This is a fundamental principle of the legal systems of the common law countries which is not recognized by continental legal systems based on Roman law. According to them, the maxim is, “lex posterior derogat priori” (the latter law supercedes the earlier law) and even if the latter law is custom it would supercede earlier legislation.
But even in common law countries legislation may, and does often, explicitly permit a contrary custom to follow. Thus Section 5 (iv) of Hindu Marriage Act, 1955 while invalidating marriages within the degrees of prohibited relationship, specifically provide that a contrary custom wherever prevalent is unaffected. Thus, the custom permitting marriage between children of brother and sister which is prevalent in some parts of the country, though falling within the ‘degrees of prohibited relationship’ as defined in Section 3(g)(iv) is saved under Section 5 (iv) of the Hindu Marriage Act.
Ramnad Case: (1868)
In Collector of Madura v. Mootoo Ramalinga Sethupathy, the Zamindar of Ramnad died without sons. No authority was given to the widow Rani Parvathavardhini, to make an adoption. Still the widow made the adoption with the consent of some of the sapindas of her husband. If such an adoption was not valid, the zamindari would have escheated to the Government. The Collector notified that on the death of Rani Parvathavardhini the zamindari would escheat to the State. The suit was brought by the adopted son for a declaration of the valdity of the adoption. The question was whether under the Dravida School of Hindu law an adoption made by a widow without the husband’s authority was valid when there was consent of sapindas. The Privy Council held that in the Dravida Country in the absence of authority from the husband, a widow may adopt a son with the assent of his kindred. The Privy Council observed: “For under the Hindu system of Law, the clear proof of usage will outweigh the written text of the law.”
Observance as of right
As has been observed at the outset, custom is something more than uniformity of conduct or usage. It must be coupled with the conviction that what is done uniformly is also done as a matter of obligation or right. This requisite is expressed by the maxim that custom must be followed “nec vi, nec clam, nec precario” – peacefully, openly and without interruption. What the rule means is that custom must have been followed openly, without the necessity for recourse to force, and without the permission of those adversely affected by the custom being regarded as necessary. These requisites are expressed in the form of the rule that the user must be nec vi, nec clam, nec precario – not by force, nor by stealth, nor at will.
A custom to operate as source of law must be supported by opinio necessitatis. It must be regarded by those affected by it not merely as a facultative or optional rule, but as an obligatory or binding rule of conduct. If a practice is left to individual choice it can have no claim to recognition as customary law.
The custom must have been peacefully observed. Its validity must have been voluntarily recognised by the generality of people in the locality.
Certainty and continuity
What is sought to be proved as valid custom must be a continuous and certain course of conduct. It should not be sporadic or ambiguous. The incidents of custom must not be vague or indefinite. They shall be certain and known.
One custom will not be allowed to be set up in opposition to another. Evidence of the existence of two inconsistent customs would only show that neither of them had an imperative authority on the people. Neither of them can then claim to have been observed as of right.