CUSTOM EN ROUTE TO IDEAL THAT IS LAW
“As an anarch, who acknowledges neither law nor custom, I owe it to myself to get at the very heart of things. I then probe them in terms of their contradictions, like image and mirror image. Either is imperfect – by seeking to unite them, which I practice every morning, I manage to catch a corner of reality.” ― Ernst Jünger, Eumeswil
We always chase the ideal for a better tomorrow. Before embarking on that journey, one must first know what the ideal is. Customs enlighten us as to what our ideal should be and that ideal when having sanctions of state or having legal force becomes law. Law seeks to bring order in society so for e.g. the ideal is that there shall be no murder, from the custom about the belief in sanctity of human life. Sec.300, Sec.302 in the Indian Penal Code seeks to attain this ideal. It`s the widely or from ancient times practiced habits that take over our future actions and eventually form of law.
There are mainly 3 sources of law: – custom, legislation, and precedent. Customs are the oldest sources of law. Terminology of customs varies with somewhere it being referred to as usages. Sometimes it is also used in different senses such as conventional custom or local custom or general custom. What remains same is the connotation that they are generally practised habits that have etched the lives of people related to it so much that only when something is done according to their custom, that they believe it to have been properly done. For e.g. India has diversity of religions and the wedding rituals vary with different religion owing to that diversity. Before being reduced into Acts, they were merely customs like the requirement of Saptapadi in Hindu Marriages or witnesses in Sunni Muslims.
Their importance though is believed to have scaled down due to the growth of legislations and judicial precedents as the legal source; this article will prove how much custom still plays a major role. It will be analysing different provisions of law that were affected by the customs or some customs that though are considered law have not been reduced into one. It will also analyse Triple Talaq that though prevalent is no boon to society and should be abolished. In nutshell, how custom plus law (ideal) results into the reality (for some) will be covered here.
To ensure justice in the beginning when there was no law, local customs came to the rescue. The only requirement was that the custom in question must have sufficient local pressure to be effective i.e. if not followed it would cause injustice in the eyes of locality related to the case. It is believed with coming of statutes they lost their relevance. Let`s find out if they really did.
What is Custom?
There is no perfect definition for the word ‘Custom’ but the most apt one can be considered to be the one by Dr.Allen who defines custom as: – “the uniformity of habits or conduct of people under like circumstances. When people find any act to be good and beneficial, apt and agreeable to their nature and disposition, they use and practice it from time to time, and it is by frequent use and multiplication of this act that the custom is made.”
For a custom to be acceptable and thereby valid there are certain requirements and these are as follows: –
- Reasonableness:- A custom must be reasonable and by analogy it requires it to be in accordance with the public policy of the State. According to Sir Edward Coke, a custom will be reasonable if it is in accordance with justice, equity and good conscience. In the case of Mercer v Denne and Asarbulla v Kiamatullah, it was observed that a custom shall be presumed reasonable unless proven unreasonable and the period to ascertain its reasonability shall be the period of its inception.
- Consistency: – A custom has to conform to the statutory law of the land.
- Compulsory Observance: – A custom should be observed as of right i.e. without any force or the requirement of permission. Opinio necessitas i.e. obligatory and not optional.
- Continuity and Immemorial Antiquity:- Custom should exist from time immemorial, continuously. Immemorial in England basically means close to the period of 1189 AD i.e. the year of accession of King Richard I. In India it just needs to be from ancient time and can be existing in the memory of humans like in the case of Baba Narayan v Saboosa, it was observed that though the custom need not be immemorial but it has to be continuous to be valid.
- Certainty: – Ambiguity is never appreciated in legal field and hence custom should have been observed continuously and uninterruptedly with certainty and this needs to be proven beyond reasonable doubt.
Broadly, there are two kinds of custom: legal and conventional. The following are different kind of Customs.
- Conventional Custom: – also known as usages, it is an established practice whose authority is conditional on its incorporation and acceptance in the agreement between the parties bound by it.
- Legal Custom:- these are operative per se as binding rules of law independent of any agreement between the parties. These are of two kinds: –
- Local Custom: – Custom that prevails in defined locality.
- General Custom: – Custom that is operative throughout the realm. Hence form one of the sources of common law of the country.
Areas where custom still plays an important role: –
Hindu Legal System
Manu says that one should follow the path which has been followed by one`s own forefathers and that by following such path one does not deviate from the right path. He also said that the King must/should have regard to the customs of the country. Now, the Hindu laws that came during 1955 and 1956 have completely abolished the customary rules but still in some cases Hindu customs prevail like for e.g. sec.10 of Hindu Adoption and Maintenance Act, 1956 which is as follows: – “10. Persons who may be adopted.—No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:—
…. (iii) He or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv)He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. “
E.g. for Sec.10`s application can be the Bombay School of Hindu Law in which a person above 15 years or married can be adopted.
Another e.g. of it i.e. provision where custom prevails is the Sec. 5 of Hindu Marriage Act, 1955 which is as follows: –
“5. Conditions for a Hindu marriage: – a marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: –
…. (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”
E.g. for Sec.5 can be that among Jats, marriage with the brother`s widow is valid. Also, in South India, particularly in State of Madras marriage with maternal uncle`s daughter is allowed.
This topic is being discussed mainly because the tradition of Triple Talaq owes its origin to a custom that was formulated to please the Omayyad Monarchs. In Muslim Law, modes of dissolution by husband is of 3 kinds:- Talaq, Ila and Zihar. We are concerned here with Talaq and that is of two types:- Talak-ul-sunnat and Talaq-ul –biddat. Talak un sunnat is further divided into Ahsan and Hasan and Talaq ul Biddat in triple divorce and one irrevocable divorce. Ahsan, Hasan are considered the most acceptable mode of talaq and the infamous Triple Talaq under Talak Ul Biddat which though can and should be qualified as unjust is still very much used by Muslim Husbands to arbitrarily divorce their wives.
Triple talaq is talaq i.e. dissolution of marriage by triple declarations in which 3 pronouncements are made in a single tuhr(period of purity i.e. no menstruation) One can either say “I divorce you, I divorce you, I divorce you” or “I divorce you thrice” or “I divorce you in the form of talaq ul biddat”.
Though Shariat permits it, according to Quran, which is believed to be the words of Prophet Mohammad himself, Triple Talaq is a sin. Prophet condemned this practice since according to him, first, attempts at reconciliation should be made by calling two members from each side of the spouses and if it comes to no avail then one can divorce the spouse.
Recently, All India Muslim Personal Law Board in an Article by The Hindu Newspaper gave a statement that Triple Talaq is a sin i.e. they accept it but they also say that Shariat permits it. (Shariat is the Muslim Personal Law.) How are you saying that though it is a sin, our personal law does not condemn it, so we will continue following it? It is not the rule that just because it`s the law, we should forget whether the law is in accordance with the purpose law seeks to achieve which is the social order and justice. An unjust law requires to be removed. Unjust can be said because of the recent case of a husband divorcing his wife during Skype chat by way of Triple talaq which was allowed by the All India Muslim Personal Law Board and hence according to the author this practice should be abolished.
Law of torts is not a codified law. “Tort” is derived from a latin word ‘tortum’ which means to ‘twist’. Tort was defined by Salmond as: –“a civil wrong for which the remedy is a common law action for unliquidated damages, and which is NOT exclusively the breach of a contract, or, the breach of a trust, or, other merely equitable obligation.”
Remedies available for a tort are: – Damages, Injunction, Specific restitution of Property along with some extra-judicial remedies. (According to Bruce Benson`s, the Enterprise of Law, under customary law, offences are treated as torts.)
Custom is used to determine the tort of Negligence. Negligence can be defined as: – “ The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) ___ “Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.”
“….which ordinarily regulate the conduct of human affairs” denote the use of custom in determining whether a person was negligent with respect to his performance of duty or not.
There are two more torts where custom is used: – Product liability and Business or Professional Misconduct like for e.g. in suits for professional misconduct or incompetence attention may have to be given to the accustomed ways of proper professional behaviour or business usages prevailing in a certain branch of business may have to be ascertained in order to determine rights, duties and responsibilities in the field of commercial law.
The laws relating to entering into contract were reduced into the Indian Contract Act, 1872 but these were influenced by the customs as well. It wasn`t the case that before the Act, people did not at all enter into contracts, but the principle that governed their entering into contracts were merely given the form of a statute. Moreover in the Contract for Agency, there are still many provisions that provide custom to be the deciding factor to determine if the provision was followed or not like for e.g. Sec 190 of Indian Contract Act, 1872 or Sec. 211. The saving clause also says that unless inconsistent with the Act, customs relating to trade shall prevail. The clause is as follows: – “Sec.1.Short title.—This Act may be called the Indian Contract Act, 1872. —This Act may be called the Indian Contract Act, 1872.” Extent, Commencement.—It extends to the whole of India 1 [except the State of Jammu and Kashmir]; and it shall come into force on the first day of September, 1872.
Saving:- Nothing herein contained shall affect the provisions of any Statute, Act or Regulation not hereby expressly repealed, nor any usage or custom of trade, nor any incident of any contract, not inconsistent with the provisions of this Act.”
Firstly, this article is only analysing different provisions and expressing author`s views and opinions and in no way is meant to hurt or demean somebody`s religious feelings. Now, the Custom`s importance as a source of law though is believed to have been diminishing, it is still very much in vogue since many of the major Acts, Codes derive their material, content from these customs only like inheritance, property, contract or torts as discussed earlier etc. It still exerts great influence on personal law, mercantile law, even the International Law like for e.g. Prohibition against torture is an international customary law and it has to be followed irrespective of a country being party to Convention against Torture.
Though not directly, customs do enter the arena of law in an indirect way. like for e.g. in determining which acts are negligent, a court can take into consideration the customary standards of care observed by men of average reasonableness.
Customs are sometimes our religious faith and sometimes our manner or habits but whatever the case maybe, they have to be adopted in the maintenance of law and order mechanism to secure social order and hence are still very much relevant.
Author – Rangoli Tiwari, Campus Amicus @ Legal Bites
 Dr.N.V.Pranjape, Studies in Jurisprudence and Legal Theory, 8th Edition, 2016, Central Law Agency.
 Allen, CK: Law in the Making p.87
 (1905) 2 Ch 534
 (1937) Cal 245
 (1943) 2 MLJ 186 (189)
 Guruswamy Raja v Perumal
 Pranjape ibid 308
 Pranjape ibid 309
 Buhler, G, Manusmriti, The Laws of Manu 1500 BC VI 45 verse 4.178 “He shall tread the path of the righteous by the same way in which his fathers and grandfathers have trodden; going by that way, he shall not suffer.—(178)”
 Asaf A.A.Fyzee, Outlines of Muhammadan Law, edited and revised by Tahir Mahmood, 5th Edition, 2008, Oxford University Press.
 Fyzee ibid pg. 122
 Dr.R.K.Bangia, Law of Torts, Revised by Dr. Narender Kumar , 23rd Edition, 2013, Allahabad Law Agency.
 As observed in the case of Jacob Mathew v State of Punjab AIR 2005 SC 3180
  Edgar Bodenheimer, Jurisprudence: the Philosophy and Method of Law,5th Indian Reprint, 2006, Universal Law Publishing. Pg. 376
 Pranjape ibid Pg.320
 Edgar Bodenheimer, Jurisprudence: the Philosophy and Method of Law,5th Indian Reprint, 2006, Universal Law Publishing. Pg. 376