The term custom refers to a set of rules that people follow consistently and willingly. In almost all societies, custom plays a significant role in the regulation of human behaviour. Customs is the most important source for the development of law. Although custom and usage appear to be synonymous, they are fundamentally different in certain aspects. Usage is the act of continuing something, but custom, on the other hand, is the act of repeating things since the beginning of time. Since ancient times, Achara or custom has been regarded as the highest of all Dharma. Customs differ from area to area and even from family to family. Customs are not permanent; rather, they change and evolve. According to Manusmriti, if a custom is established, it will take precedence over written texts or regulations.
Section 3 of the Hindu Marriage Act defines custom as a set of rules which are followed for a long period and it has obtained the force of law among the people. Customs should always be ancient and reasonable and they should not contradict the laws of the nation.
Types of Custom
● Local Custom– These are the customs or practices that must be followed by members of a particular community in a specific geographical area. It is usually followed by the major part of that particular location’s culture. Local customs apply to a specific region of the country or a portion of the state.
● General Custom– These customs or practices prevail throughout the country and are a major source of attraction for tourists.
● Family Custom– Family custom can be defined as a family tradition or culture that they have followed for a long time and that was passed down from their forefathers. It is also known as the atmosphere in which a person is born and raised by their parents and forefathers.
● Class or Caste Custom– These are the customs of a specific caste, industry, or group of people, such as traders, farmers, or business owners. Every caste or class has its own set of traditions that it has observed for a long time and can be referred to as class or caste customs.
● Legal Custom– Legal custom is effective and independent of any agreement between the parties. In their function, they are unconditional and absolute, and they adopt the shape of law. A legal custom’s sanction is certain and unequivocal. It operates negatively in the sense that if the custom is not followed, certain desired outcomes will not occur.
● Conventional Custom– A conventional custom is a practice that develops through time and arises from a contract between the parties and has no legal status of itself. It is legally enforceable because it has been expressly or impliedly incorporated in a contract between the parties concerned.
Essentials of a Valid Custom
● Antiquity– The custom must be ancient and must have been established earlier and should be followed consistently for a long time. The age of a custom is the most important factor in determining whether it is valid or not. The custom must have been followed since the beginning of time. It appears that the practice is so ingrained in society that legislating it is the only logical next step. Recent or modern practices cannot be considered customary unless they have gained widespread acceptance in society.
● Invariable or Continuous– For a custom to be valid, it must have been practised for a specific period and be still in use. It could be used as proof of the law’s force and the acceptance of custom in the eyes of the law. A custom shall be followed without any interruption. When a tradition or practice is not continued for a while or is discontinued, it comes to an end, and it is no longer considered a custom.
● Reasonable– To be considered a valid custom; it must have arisen from several factors. It must be founded on the right to enforceability. It should not be based on unacceptably incorrect assumptions. A custom must be consistent with morality and ethics, popular perceptions of justice, health, and government policy. It cannot be deemed a lawful custom if its origin or practice is not reasonable.
● Unambiguous evidence– When presenting evidence of a custom, there should be no ambiguity. The group of people who follow it must demonstrate the existence of the custom through their actions or acts, or through general examples.
● Not opposed to morality or public policy– Customs should not be contrary to public policy, which means that it should aim for the people’s well-being and good. Customs should not violate social norms and should not conflict with society’s moral values or ethical standards.
● Not opposed to any law– Customs should not be in violation of the country’s laws to be valid and they must be widely accepted in the eyes of the law. It must not be prohibited by any laws or legislative enactments. To be acknowledged as a valid custom, customs must be linked to laws.
Customs and Usages under Codified law Hindu Law
The terms “custom” and “usage” are defined in Hindu law which means any rule that has gained the force of law among Hindus in any local area, tribe, community, group, or family after being consistently and universally maintained for a long period. Such a custom or usage, on the other hand, should be (i) certain, (ii) reasonable, and (iii) not contrary to public policy. Furthermore, a law that applies just to one family should not have been abandoned by that family.
The customs and usages have been given a prominent place in codified Hindu law and are regarded as a parent of Hindu law, but this is limited to a certain extent because customs must be specifically demonstrated or brought to the attention of the court to be recognized as law. In three instances, the ‘Hindu Marriage Act 1955’ has been invoked. First, marriages might be commenced following the party’s traditional customs. Second, parties can get a divorce based on prevailing customs and usages. Third, adoption can be done according to established customs.
Many customs, such as the Sati system, were abolished when Hindu law was codified. The Hindus used to practice the Sati system, in which a widow makes a sacrifice by sitting on top of her deceased husband’s funeral. Initially, women were not given preference for succession but the codification of Hindu law brought it into the picture by The Hindu Succession Act, 1956 which gives equal treatment to sons and daughters in matters of succession. Narad smriti considered customs to be very powerful.
Customs is a cultural concept that emerges with the birth of a community and provides a standard code of conduct that is a characteristic of life. The impact of custom may be traced in any legal system because customs regulate society and constitute the basis of a vast number of laws, whether directly or indirectly, deliberately or unknowingly. With the passage of time and the rise of modern civilization, the role of custom as a source of law has waned, while other sources have grown in prominence. Customs is a very significant source of law, with historical origins in the earliest and most rudimentary of civilizations. Newer habits are continuously being established in society, which may eventually become usages or traditions.