Custom as a source of law, and the three sources compared

1. Meaning

Custom is a rule of conduct which has been observed by a community for a long time, uniformly and as of right, so that it has acquired the force of law. Salmond: “custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.” Austin defined it as a rule of conduct which the governed observe spontaneously, not in pursuance of a law set by a political superior.

Custom is the oldest source of law. In early societies there was no legislature and no court in the modern sense; conduct was regulated by usage. Hindu law treated sadachara (the usage of the virtuous) as a source after sruti and smriti, and the Privy Council held in Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) that under Hindu law clear proof of usage will outweigh the written text of the law.

2. How custom becomes law

• Historical school (Savigny): custom is law of itself, because it expresses the popular consciousness. It needs no recognition by the State.
• Analytical school (Austin): custom is not law until it is recognised and enforced by the courts, that is, tacitly commanded by the sovereign. Before that it is only positive morality.
• Salmond takes a middle view: custom is a source of law because courts accept it as such, and when a custom satisfies the legal requirements it is law even before a court declares it; the court only recognises what was already law.

3. Kinds of custom

Salmond divides custom into two classes.

• Conventional custom (usage): a practice binding only because the parties to an agreement have expressly or impliedly adopted it as a term. A trade usage that goods are sold with a certain allowance, or a usage of a particular market. It binds because of the agreement, not of its own force. Requirements: it must be known to the parties (or so notorious that knowledge is presumed), reasonable, and not contrary to statute or to the express terms of the contract.
• Legal custom: a custom binding of its own force, whatever the parties intended. It is of two kinds:
  • general custom, prevailing throughout the country, which in England became the common law;
  • local custom, prevailing in a particular locality or among a particular family or community. In India the courts have recognised tribal, caste and family customs: for example customs permitting marriage within the prohibited degrees, or customary divorce, which the Hindu Marriage Act, 1955 expressly saves.

4. Requisites of a valid custom

• Antiquity. In England a local custom must have existed from “time immemorial”, fixed by law at 1189 (the accession of Richard I). Indian law requires no fixed date; the custom must be ancient, long enough to have become the established rule of the community.
• Continuity. It must have been observed without interruption. A break in its exercise (not merely in its use) destroys it.
• Peaceable enjoyment. It must have been observed peaceably and without dispute in a court.
• Exercised as of right (nec vi, nec clam, nec precario): not by force, not in secret, and not by permission.
• Certainty. Its content must be definite, and the persons and places it covers clear.
• Reasonableness. A custom that is unreasonable will not be enforced. The test is whether it was unreasonable at its origin, and the burden lies on the party who attacks it.
• Consistency with other customs of the same locality.
• Conformity with statute. A custom cannot override a statute.
• Not opposed to morality or public policy. Customs permitting the dedication of girls as devadasis, or temple prostitution, have been refused recognition and later prohibited by statute.
• Obligatory character: observed as a rule that binds, not as a matter of choice or courtesy.

The statutory definition in Indian personal law collects these requisites. Section 3(a) of the Hindu Marriage Act, 1955 (and section 3(a) of the Hindu Succession Act, 1956 in the same words) defines “custom” and “usage” as 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, provided that the rule is certain and not unreasonable or opposed to public policy, and, in the case of a family custom, has not been discontinued by the family. The party alleging a custom must prove it by clear evidence.

5. Custom under the Constitution

Article 13(3)(a) includes “custom or usage having in the territory of India the force of law” within “law”, so that a custom inconsistent with fundamental rights is void to the extent of the inconsistency under Article 13(1).

6. Merits and demerits

Custom reflects the actual practice and feeling of the people, and so is readily obeyed. But it grows slowly, is hard to prove, varies from place to place, and may preserve practices that are harmful. In a modern State legislation has displaced it in most fields.

7. Legislation, precedent and custom compared

• Origin. Legislation is made deliberately by a legislature; precedent is made by judges in deciding cases; custom grows spontaneously in the community.
• Form. Legislation is in an authoritative text (jus scriptum); precedent must be extracted from the reasoning of judgments; custom is unwritten and must be proved.
• Time of operation. Legislation is generally prospective; precedent declares the law for past events; custom exists before any court recognises it.
• Authority. Legislation can abrogate both precedent and custom. Precedent can declare a custom invalid but cannot override a statute. Custom cannot override either.
• Flexibility. Legislation can change the law at once; precedent changes it gradually; custom changes slowest of all.
• Antiquity. Custom is the oldest, precedent came next, legislation is the dominant source of modern law.
• Interdependence. Statutes need interpretation by courts; customs are recognised through precedent; and legislation often codifies both (the Hindu Code and the Indian Contract Act, 1872 restated earlier custom and case law).

How this is examined

As a 16-mark essay: “Explain the requisites of valid custom and its kinds” (January 2026, Q.5). As a short note: “Custom” (June 2025, Q.3(b)). Some papers ask for a comparison of the three sources or ask whether custom is law. Give definitions, the theories, the kinds, the requisites as a list, and section 3(a) of the Hindu Marriage Act. In a comparative question use section 7 as the skeleton.