Essential elements of a Custom—According to Blackstone a custom to be recognised as law must satisfy the following essentials
I. Antiquity —A custom to be recognised as law must be proved to be in existence from time immemorial, time whereof the memory of man runneth not to the contrary. This is the rule of the English law. There, this legal memory presumed to be going back to a fixed time. An arbitrary time limit, that is, the year 1189, the first year of the reign of Richard I, has been fixed at which the custom must be proved to be in existence. lify a fiction of law, human memory is made to extend for about 800 years. But the presumption of law is that the customs which are old and whose time of origin cannot be ascertained must have started before the year 1189. However, if it could be shown that a custom came into existence at any time later than 1189 the presumption to antiquity shall be defeated. Indian Rule —According to Manu, the great Hindu law-giver, “Immemorial custom is transcendental law.” The law in India, at present is that antiquity is essential for the recognition of a custom, but there is no such fixed period for which it must have been in existence as it is in the English Law.
2. Continuity—A custom must have been practised continuously. In England, the custom during the period from 1189 must have been enjoyed continuously without any interruption. If a custom has been disturbed for a considerable time, a presumption arises against it. However, Blackstone has drawn a distinction between the interruption of the ‘right’ and the interruption of the mere ‘possession’. It is the discontinuance of the ‘right’, for howsoever small a time, that ends the custom. It means that if possession for some time is disturbed, but the claim to enjoy the custom is not abandoned, the custom continues.
3. Peaceable Enjoyment — The third essential of a valid custom is that it must have been enjoyed peaceably. If a custom is in dispute for a long time in a law court, or otherwise it negatives the presumption that it originated by consent as most of the customs naturally might have originated.
4. Obligatory Force—A custom, to be valid, must have an obligatory force. It must have been supported by the general public opinion and enjoyed as a matter of right . If practice was maintained by stealth or by something of that sort, it cannot become a custom.
5. Certainty—A custom, to be valid, must be certain. A custom Nktrich is vague or indefinite cannot be recognised. It is more a rule of evidence than anything else. The court must be satisfied by a clear proof that custom exists as a matter of fact, or as a legal presumption of fact.
6. Consistency— Custom, to be valid, must not come into conflict with the other established customs. There must be consistency among the customs. It is, therefore, necessary that one custom cannot be set in opposition to the other custom.
7. Reasonableness — A custom, to be valid, must be reasonable. Prof. Allen says that the rule regarding reasonableness is ‘not that a custom will be admitted, if reasonable, but that it will be admitted unless it is unreasonable.’ The courts are not ‘at liberty to disregard a custom whenever they are not satisfied as to its absolute rectitude and wisdom, or whenever they think that a better rule could be formulated in the exercise of their own judgment otherwise a custom will lose much of its force and sanctity”. For declaring a custom inapplicable on the ground of unreasonablness it will have to be shown that it is obviously opposed to reason and right.
8. Conformity with the Statute Law—A custom, to be valid, must be in conformity with statute law. It is a positive rule in most of the legal systems that a statute can abrogate a custom. Although according to the Historical School, a custom is superior to statute and it can supersede a statute, this view has nowhere been recognised in practice. The English rule is that a custom will not be recognised if it is in conflict with some fundamental principle of the common law. In case all the above mentioned essentials of a custom are proved, it 1. is law, but the courts have power on sufficient grounds to change the law it embodies.
Clear Proof of Usage will Outweigh the Written Text of Law—As Manu says, “Immemorial custom is transcendent law” Narad is also of the opinion, “custom is powerful and overrides sacred law.” This to be noted that custom is the parent of personal law in each country. Even in India custom is the most important source of Hindu Law under which “clear proof of usage will outweigh the written texts of law” as held by Privy Council in Collector of Madura Vs. Moottoo R olinga, 1868. According to Judicial Committee of Privy Council custom in its legal sense means, a rule exceptional to the general law, a rule which in a particular class, district or family has, from long usage obtained the force of law According to Supreme Court where a custom is repeatedly brought to the notice of the court, the court may hold that custom is introduced in the law of the land without necessity of proof in any individual case. Thus, custom pays a very important role in Hindu law. It is one of the most important sources of Hindu Law. Hindu sages have recognised good customs binding on Hindus. Where there is a conflict between a custom and the text of the Smrities such custom will overide the text.
Position of Custom in Modern Society — Custom occupies an important place as a source of law even to this day because most of the material contents of developed systems of law have been drawn from ancient customs. The laws relating to succession, inheritance, property, contract etc. are evolved from early customary rules. In India, the personal law of Hindus e.g, the Hindu Marriage Act, 1955, the Hindu Adoption & Maintenance Act 1956, the Hindu Dowry Abolition Act, 1961 etc., which have been codified after the Indian Independence, is nothing but customary law which has been recognised by courts and embodied in judicial decisions from time to time.
Importance of Custom as a Source of Law —Although custom has lost its place as a source of law in modern age but it still exerts great influence in certain areas such as personal laws, mercantile law and the International law. Particularly, in the area of personal law, the need for a Uniform Civil Code as directed by Art. 44 of Indian Consiuution has been emphasised time and again so that a rational law applicable to all alike may be evolved. The Supreme Court of India in Mohammed Ahmad Khan V.s. Shahbano has reiterated the need for a uniform civil code which could be uniformly applicable to all the castes and communities living in India so that differences as to caste and religion may be mitigated. It would be a progressive step towards the attainment of the goal of welfare state. In this process, the ancient customs of different communities shall have to be taken into consideration so that the uniform law so evolved conforms to Indian traditions. As Siilmond remarked, “Custom is to society what law is to the State. Each is the expression and realization, to the measure of men ‘s insight and ability; of the principles of right and justice.” When the State takes up its function of administering justice. It accepts as true and valid the rules of right already accepted by the society of which it is itself a product, and it finds these principles already realised in the customs of the realm. Even today much of statute law itself is subject to well recognized customs to the contrary. Thus, the law relating to Hundies (negotiable instruments in an Indian language) is not governed by the Indian Negotiable Instruments Act, but by local custom, unless such custom is expressly excluded by any provision of this Act.