custom
To be valid, a custom must be ancient, continuous, certain, reasonable, and not opposed to public policy or law. The person relying on it must prove it by clear evidence of instances. Section 3(a) of the Hindu Marriage Act sets these requirements, adding that a family custom must not have been discontinued.
Custom can override the uncodified rules of personal law; for example, a marriage within prohibited degrees is valid if custom permits it. Custom having the force of law is “law” under Article 13(3)(a), so it is void if it violates fundamental rights. In jurisprudence, custom is a source of law, central to the historical school's view that law grows from the life of the people.
Example
A marriage between cross-cousins is valid among the community because a long, certain and continuous custom permits it, as allowed by section 5(iv) HMA.
In Indian law
- Section 3(a), Hindu Marriage Act, 1955 (custom and usage defined)
- Article 13(3)(a), Constitution of India (law includes custom or usage)
- Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (Privy Council, 1872): custom must be ancient, certain and reasonable
See also
sources of law · historical school · achara · customary international law
Read more in the study notes
- Reasoned decisions, exceptions to natural justice, effect of breach and Article 136 (Administrative Law)
- Promissory estoppel, legitimate expectation and proportionality (Administrative Law)
- Principal steps in arbitration and interim measures (Alternative Dispute Resolution Systems)
- Conciliation: meaning, kinds and the role of the conciliator (Alternative Dispute Resolution Systems)
- Mediation: meaning, the mediator and essential characteristics (Alternative Dispute Resolution Systems)
- History and evolution of banking in India (Banking Law)