Wednesday, 31 August 2017

Sunday, 25 February 2018

Custom and Essential Of Valid Custom

Custom play a very important role in the formation of Hindu law. It is  regarded as the third Source of Hindu law.Custom is the parent of personal law in all countries and India. Custom is a rule, which a particular family,class,community or in particular district,has owning to prolonged use, obtained the force of law.To obtained validity custom must fulfill some essential valid condition.The essential of valid custom re discussed in below.

Custom in its legal sense means a rule which in a particular family,class or district has from long usage obtained the force of law. It must be ancient,certain,reasonable and continuously followed.
In section 3(a) of the Hindu Marriage Act,1955 the expression ''custom''and ''usage'' signify any rule which,having been continuously and uniformly observed for a long time,has obtained the force of law among.


Kinds Of  Customs-

There are three kinds of customs generally recognized by Hindu law.
They are:
(a) Local custom-Local custom belongs to some particular locality or district and they are binding on the people of that place.
(b) Class Custom-Such Custom related with caste.This Custom followed by a particular profession or occupation people. e.g-agriculture,trade,mechanical.
(c) Family Custom-Family custom relate to a particular family.

Essentials Of valid Custom

(i) Ancient 
Custom must be ancient.All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has,by common consent been submitted to as the established governing rule of a particular locality.

(ii) Invariable and continuous
Invariable and continuous are the another essentials for a valid Custom. Continuity is as essential to the validity of a Custom as Antiquity. Thus when a particular customs has been discontinued for a period,it would come to end. It means that there should be continuous  availability.

(iii) Reasonable 
Another element for a valid Custom is Reasonable.Custom may be ancient,certain and reasonable. It cannot be said that a custom is founded upon reason,though an unreasonable custom is void.

(iv) Clear and unambiguous
Custom must be proved by clear and unambiguous evidence. Custom may be proved either by actual instance or by general evidence of the members of the tribe or family who would naturally be cognizant of its existence. It cannot be extended by analogy or logical process.

(v) Not opposed to Morality or public policy
Another essential of valid Custom is it must not opposed to Morality or Public policy.Whether a Custom is immoral must be tested by the consensus of the community as a whole and not a section thereof.

(vi) Not opposed to any Law
It must not opposed to any law.Custom has the effect of modifying general personal law,but it does not override statutory law,unless the custom is expressly saved by it.

(vii) Custom  cannot be created by Agreement 
Custom cannot be created by agreement.A mere agreement among certain persons to adopt a particular rule cannot create a new custom binding on others.

(viii) Onus of proof 
The burden of proof as to the existence of a Custom rests on the person who set up a custom contrary to law.
It is well established principle of Hindu law that clear proof of usage will outweigh the written text of law.Thus where the members of a family set up a custom derogatory to that law,burden lies upon them to prove the custom.

(ix) Certainty 
Another essential element of valid Custom is Certainty. If the nature of the custom is not certain then it loses its validity.

(x) Matter of Right 
Custom must be matter of right.Otherwise it should not be enforceable

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