Custom — A Living Modern Source — KSLU Family Law 1 Notes
Custom — A Living Modern Source
Section 3(a), Hindu Marriage Act, 1955: “‘Custom’ and ‘usage’ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law… provided that the rule is certain and not unreasonable or opposed to public policy.”
| Requirement | Meaning |
|---|---|
| Antiquity | Observed from time immemorial |
| Continuity | Practised without interruption |
| Uniformity | Followed consistently, not capriciously |
| Certainty | Definite — vague customs fail |
| Reasonableness | Not grossly unreasonable |
| Not against law / public policy | Cannot override a statutory provision |
Burden of proof: The party relying on a custom must prove it — Ujagar Singh v. Mst. Jeo (1959). And critically: a custom that conflicts with a statute simply fails — Mirasa v. Mirasa (1974). This is the examiner’s favourite trap, illustrated in the solved problem below.
Kinds of custom recognised by courts: (1) Local custom — confined to a particular region; (2) Family custom — followed by members of a particular family (e.g., rules of succession peculiar to a royal family); (3) Class/Caste custom — followed by members of a community, caste, or sect (e.g., customary divorce among certain agricultural castes, recognised in Subramani v. Chandralekha). Each must independently satisfy the six requirements above — antiquity alone never suffices.