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Custom

  • We must always bow our head if a temple passes by
  • We should always use our ring finger for tilak during worship
  • We are told that girls should not enter in dragah
We usually see that our elders guide us and little one’s using the above mentioned sentences saying this is our custom and mostly all of us follow it but some do not and it is neither a crime nor can the non follower get punished as it is not law which is meant to be followed by everyone because when law is made it is presumed to be known by all and have same consequences for all but customs differs from community to community for example – In Hindu marriage wearing white colour during wedding is considered to be inauspicious where as In christian marriage wearing white color during the wedding is considered auspicious so we can say customs do not have same consequences for all.

Therefore customs are the believes of our elders which are adopted unconsciously and voluntarily by people through generations or we can say customs are habitual adaptation of some practices which are blindly followed and also which have gained legal binding (not by law but by people) because they have been practiced in society from time immemorial for example – the practice of dowery system none of us know about its origin although it is practiced by a larger section of society voluntarily.

Different views on custom

Custom varies from state to state even sometimes in a particular society different customs are followed by the people. For example- consider living in a society where people from Bengal ,Bihar and Assam live together follows same tradition but at time of their own specific festival like bihu or durga puja its completely upto the community to follow as custom is not obligatory rather it is a voluntary practice.

According to Austin custom is a rule of conduct which the governed observe spontaneously and not in the pursuance of law set by a political superior through this following definition Austin wants to say that custom is a practice which is continously observed by the superiors of the society and is also implemented by them not for the enforcement of law made by authority rather for the enforcement of rules made by them.

According to Halsbury laws:
A custom is a particular rule which has existed either actually or presumptively from time immemorial and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm considering the following definition we can say that custom is rule which has existed in the society over decades and due to its continuous and uninterrupted practice now it is applied either with voluntarily participation or with force by the people not by law.

For example:
Inter caste marriage mostly in rural areas is considered violation of their custom and the guilty person is punished by them not by law, but in case of Lata singh v. State of UP[1] the judgment made it clear that women has a right to choose her own life partner and marrying outside caste is not a crime.

How customs become law

The word custom is derived from consuescere which is based on two words con” means intense force and suescere” means become accustomed” where as in Hindi custom means:

Riti, Riwaj, Rasam etc and in English custom is known as Practice, Habbit, Way, etc.
Custom is the ancient and original source of law which are developed by the habitual practices for the welfare of the society but only few customs find their way and are backed with legal sanctioning, known as customary law and which do not get pass are based on the principle of unjust enrichment ( means benefit of one at loss of another) and get confined within a part of the society and is followed only by those people who feel obligation towards it as customs are time immemorial.

For example: only in few rural areas child marriage is still practiced although it is forbidden by law because the people of that area feels obligated towards it.

Therefore, customs in order to get legal sanctioning must have the following features and the following points are:

  1. Customs must be immemorial which means the people who are following it do not know about its origin and it should be an unconscious adaptation which they follow blindly without any questioning.
  2. A custom to gain legal sanction must be followed continuously without any interruption. If a custom is interrupted in between its application for a period of time and then again resumed in practice then also it will not be considered valid. In case of
    Muhammad Hussain Faorki v Syed mian saheb[2], it was held that unless there is continuity there is no custom.
  3. A custom must be moral. The custom which discriminates and follows the principle of unjust enrichment is not valid and are not backed by law.
    For example- in earlier days a custom named sati pratha was practiced but with the development of law it was considered immoral for the women’s of the society.
  4. The custom in order to be used as a source of law must not be unreasonable it must not harm the society. Prof. Allen says that the true rule seems to be that the unreasonableness of the custom must be proved not the reasonableness” means that the burden of proof for the unreasonable custom lies upon the challenging party.

Case: Navtej Singh Johar v Union of India [3]

In the following case the burden to prove that homosexuality is not a violation of social norm (custom) rather it is an unfair practice against ones personal choices lied upon the challenging party.

Conclusion
Customs are practiced in the society with the practice of civilization because customs are the norms of do's and don’t decided and implemented by the people themselves although there is no original proof of its origin but still it has an abundant impact on the society because of its unconscious, habitual and blind adaptation over the years.

End-Notes:
  1. (2006) 5 SCC 475
  2. (1942) 1 MLJ 564
  3. AIR 2018 SC 4321
Written By Mohini Tripathi

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