Customary is derived from the Custom (oldest source of law). Custom is a long practice that is commonly adopted and it has become an unvarying habit of people.
Custom is simply a traditional practice that guides most of the everyday behaviors. E.g. Personal etiquettes, Food habits, dressing sense, etc. likewise various dimensions of human behaviors which are prescribed by the respective society or community is the custom. Normally custom is considered as one of the mechanisms of social control and an appropriate direction for the people living in respective societies or communities.
Over a period of time, the custom is defined by many scholars.
According to Sir John Salmond – Custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.
According to John Austin- Custom is the rule of conduct that the governed observed spontaneously and not in pursuance of law set by a political superior.
According to Section 3 in the Hindu Marriage Act, 1955
The expressions custom and usage signify 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.
Customs are classified as:
-Customs with a binding obligation- The set of customs incorporated and codified by the law (of the state) is kept under the category of binding obligation. E.g. Transmission of ancestral property, Marriage ceremony, Nurturing of children, etc. it is a definite and strict, binding of every one of that community or society further such customs are obligatory and enforceable by the law.
-Customs without binding obligation- Some customs are practiced by people at large (in a particular society), but that is not binding and enforceable, such as – Wearing a particular sort of dress on an occasion (marriage ceremony), cooking particular food during festival time, etc.
Reason for the existence of customs- followed and adopted by people, expediency, and imitation.
Types of customs:
1] Legal Customs- which have the full force of law
General custom- where the custom is observed by all the members of the society, it exists everywhere and not limited to a particular locality
Local custom- which is prevailed among particular locality or community. E.g. Customs/practices observed in villages, districts, etc., without any discrimination.
2] Conventional Customs- the custom arose out of contract or is binding by parties. E.g. Agency, Contract, Partnership, Sale of goods, etc.
Conditions of valid Customs
Immemorial Antiquity- nobody should know from when such custom is been followed if you know the timeline then it becomes practice, not custom. Continuous in nature- there should not be any break in between. E.g. we followed something for 40 years then we give it a break of 2 years and then restart it that becomes an invalid custom.
Peaceful Environment- Valid customs become invalid when it is not peaceful or moral or ethical, or reasonable. For e.g. Practice of Sati Pratha.
Obligatory force- There should be a force/duty to follow such custom only then it will be a valid custom.
Certainty- People should know why such custom is being followed, how it is been followed, what to be done only then it is considered as valid customs.
Consistency- There should be consistency; everybody should follow the custom in the same way.
Reasonableness- In R v. Karson, [i] what happened was wife can leave husband without giving any reason and marry another person which was not reasonable so such custom became invalid.
Conformity- It should conform to the law of the land e.g. slavery was a custom which was Immemorial Antiquity, as well as it, was followed continuously, then it was removed and slavery is not legal anymore. So when it is conforming with local laws then only it will be considered as valid custom.
Opinion- There should be sufficient positive public opinion towards such customs, only then it will consider as valid custom.
Observation- If it is a local custom it should be followed by the entire locality and if it is a general custom it should be followed by the entire state or if it is a religious custom for particular like Hindu act it is applicable for all Hindu's, then only it becomes a valid custom.
The custom was the most important source of law in Ancient India. When the British came the situation was almost the same and the British adopt the policy of non-intervention in personal matters of Hindu’s and Muslim’s Customs. In Mohammad Ibrahim v. Shaik Ibrahim,[ii] the British courts, in particular, the Privy Council observed that underlined the importance of customs in molding the Law.
Indian constitution and Article 13(1) - all previous laws that were inconsistent with the constitution were considered void.
Example: Codification of Hindu Law in 1955-56
Hindu Marriage Act, 1955
Hindu Succession Act, 1956
Hindu Minority and Guardianship Act, 1956
Hindu Adoption and Maintenance Act, 1956
Customs are of great importance and we believe customs as a major source of law. If it is recognized by the state; then it becomes the part of “Civil Law”
Customary law in its simplest form is a body of rules, unofficial and generally unwritten, and is established through cultural or societal norms. When the society considers certain behavior or practices so common as to be required by law, whether officially recorded or not, those beliefs establish the basis for customary law. Such practices apply to small tribal societies, civilized nations, and even international law. Customary law applies in international law when the conduct of countries becomes so consistent that it is universally believed to codify as actual law.
[i] R vs. Karson (1864)2 Bom. H.C. 117 at page 124.