Custom and Usage

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Introduction

Custom and usage are perennial sources of private law in India. They shape property rights, succession, family relationships, tenancy arrangements, and commercial practice in ways that statutes often do not fully capture. For practitioners, the law of custom is a double‑edged sword: it can vindicate long‑standing community expectations where statute is silent or ambiguous, but it can also be fragile — subject to strict tests of proof, repugnancy to statute or fundamental rights, and local variation. Mastery of how courts treat custom and usage is essential for litigious strategies in family, succession, property, tribal, and commercial disputes.

Core Legal Framework

Primary legal anchors for custom and usage in India are constitutional norms, personal laws and secular statutes, and the rules of evidence:

  • Constitution of India
  • Article 13 — laws inconsistent with fundamental rights are void; customs cannot stand if they contravene the Constitution.
  • Articles 14, 15 and 21 — equality and non‑discrimination principles frequently operate to invalidate customs that are arbitrary or discriminatory.

  • Article 25 — freedom of religion; courts balance protection of religious practices with other constitutional guarantees.

  • Personal law statutes and general laws

  • Hindu Marriage Act, 1955; Hindu Succession Act, 1956 — both operate against the backdrop of customs and usages among Hindus; local or family customs are recognized where not expressly overridden by statute.
  • Indian Succession Act, 1925 — governs succession for non‑Hindus and interacts with local customary succession in some contexts.

  • Muslim personal law is largely uncodified; customs and schools of law (fiqh) have a larger role, but remain subject to statutory law and constitutional limits.

  • Law of evidence and burden of proof

  • The party who pleads a custom must prove it; the general law of burden of proof applies (see Sections on burden of proof in the Indian Evidence Act, read with practice on pleading and proof).

  • Customs are proved like other facts — by oral testimony, documentary evidence, admission, expert evidence and, where infamous/notorious, by judicial notice.

  • Overriding principle

  • A custom is valid only if it is reasonable, certain, continuous, and in existence from time immemorial (or long usage), and not repugnant to statute, morality or public policy.

Practical Application and Nuances

How courts characterise and apply custom is best understood through concrete procedural and evidentiary practice.

  1. What is a valid custom?
    Key attributes courts look for:
  2. Antiquity/long usage: Courts expect long and consistent observance; “time immemorial” is a flexible standard — continuous use for generations will suffice.
  3. Certainty/specificity: The custom must be clear in its scope and content; vague narratives fail.
  4. Reasonableness: An unreasonable or arbitrary practice is struck down.
  5. Obligatoriness: A custom that is merely permissive or occasional will not be treated as binding; courts prefer customs that are observed as of right, not merely adopted occasionally.

  6. Locality and community: A custom must be shown to belong to a defined locality, tribe, family, caste or class.

  7. Pleading and proof in civil practice

  8. Pleading: If a party relies on custom they must plead particulars — the community/locality, the content of the custom, the period for which it has existed, and its effect on the dispute. Bare assertions are insufficient.
  9. Evidence: Typical proof paths:
    • Oral evidence: Elderly or reputable members of the community, elders, members of local panchayats; this evidence requires corroboration and full cross‑examination.
    • Documentary evidence: Records, minutes, accounts, family records, grant deeds, community resolutions or locally maintained registers that show consistent practice.
    • Admissions: Admissions in pleadings or in contemporaneous documents (wills, contracts) can be powerful.
    • Expert evidence: Anthropologists, local historians or community leaders can be called to explain the practice and its context.
    • Judicial notice: For a custom notorious and notorious within a court’s knowledge, courts may take judicial notice, but this is rare and only for truly notorious customs.

  10. Commissions and site visits: In complex tribal or remote contexts, practitioners should seek commissions for local inquiry and cross‑examination at source.

  11. Interaction with statute and public policy

  12. Repugnancy: Custom must yield to inconsistent statutory provisions or to the Constitution. Where statute is exhaustive, customary claims are unlikely to succeed.
  13. Fundamental rights: Customs that discriminate on sex, caste or religion may be struck down under Articles 14, 15 and 21.

  14. Example: A community custom disinheriting daughters will be tested against statutory succession rules and equality norms. Similarly, a community ceremony being “essential” to marital status may be relevant for private disputes but cannot override statutory registration requirements or women’s rights.

  15. Illustrative examples

  16. Family law: A widow claims maintenance or inheritance under a local custom that entitles widows to life interest in ancestral land. Practitioner tasks: plead the custom with details; produce community elders and documents; show continuity and obligatory nature; anticipate counter‑evidence of change/abandonment.
  17. Marriage validity: In some Hindu communities, saptapadi (seven steps) is treated as essential. Where marriage validity is challenged, pleadings should set out the community custom and show that the particular performance (or omission) accords with that custom. If statute provides an alternative test (e.g., solemnisation under Hindu Marriage Act), argue both under custom and statutory criteria.

  18. Commercial usage: Trade usages and mercantile customs (e.g., customary credit period in a locality) can be implied into contracts; establish usage by trade letters, repeated transactions, and testimony of merchants.

  19. Burden and standard of proof

  20. The burden lies on the party asserting the custom to establish it on a preponderance of probabilities (civil cases). The standard is factually robust — consistency over time and corroboration increase probative value.
  21. In criminal matters, where custom is raised as a justification or excuse, the standard will be higher because of the nature of criminal proof.

Landmark Judgments

Selected Supreme Court decisions that illuminate the law on customs:

  • Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556

  • Principle applied: Secular statutes and general law (e.g., maintenance under CrPC) can operate notwithstanding personal law or customary practices. The decision underscored that where statute provides a remedy, customs or personal laws cannot be used to defeat statutory rights, particularly where maintenance and social justice are involved.

  • Shayara Bano v. Union of India, (2017) 9 SCC 1

  • Principle applied: The practice of instant triple talaq (talaq‑e‑biddat) was declared unconstitutional. The judgment demonstrates the court’s willingness to strike down entrenched religious/customary practices if they violate fundamental rights or public policy, even where the practice is religiously rooted and long–standing.

  • Sarla Mudgal v. Union of India, (1995) 3 SCC 635

  • Principle applied: The Court examined conversions and marriages and highlighted that personal law cannot be manipulated to evade statutory restrictions; custom or religious practice will not provide immunity from statutory obligations (e.g., monogamy rule under the Hindu Marriage Act).

These cases illustrate three recurrent themes: (1) customs have to give way to statutory law and constitutional guarantees; (2) courts will examine both the content of the custom and its social consequences; (3) proven, reasonable customs retain doctrinal force in disputes where statutes are silent.

Strategic Considerations for Practitioners

How to leverage and defend against claims based on custom:

  1. For the party relying on custom
  2. Plead with particulars: community definition, precise content, duration and examples of continuous observance.
  3. Assemble a bundle of proof: affidavits of elders, contemporaneous documents, registers, trade correspondence, minutes of community bodies.
  4. Use corroboration: documentary evidence + oral testimony is far stronger than either alone.
  5. Foresee and neutralise attack on antiquity: produce multi‑generational evidence, family trees, old deeds or revenue records.
  6. Choose best forum for proof: where custom is localized, consider local commissions or evidence by way of witnesses produced from the locality.

  7. Be ready to argue reasonableness and non‑repugnancy: prepare legal submissions showing custom does not violate statute or constitutional rights; where borderline, seek narrow construction to protect client rights.

  8. For the party attacking alleged custom

  9. Focus on deficiencies: vagueness, lack of continuity, inconsistent observance, or internal contradictions.
  10. Demonstrate abandonment or change: modern legislative or social developments showing the custom is no longer observed.
  11. Argue repugnancy: show inconsistency with statute or public policy (e.g., gender discrimination) and invoke constitutional provisions.
  12. Cross‑examine elders and experts effectively: test dates, sources, and scope; aim to show that the witness is testifying to belief rather than a verifiable practice.

  13. Seek documentary discovery: older deeds, revenue records, marriage registers may reveal departures from the alleged custom.

  14. Tactical litigation moves

  15. Early interlocutory applications: secure preservation of documentary evidence and call for production of community records.
  16. Use neutral experts: anthropologists or historians can provide a measured account; an overzealous partisan expert weakens credibility.
  17. Cosmetic drafting: draft the relief to rely alternatively on statute, equity and custom — do not make victory hinge solely on a disputed custom.
  18. Consider settlement options: where custom is deeply rooted but client rights can be accommodated by negotiated compensation or partition, settlement can avoid uncertain evidentiary battles.

Common pitfalls to avoid
– Vague pleadings: “As per local custom” without particulars is fatal.
– Overreliance on hearsay: courts discount uncorroborated hearsay about customs.
– Ignoring statutory context: failing to address whether a statute already governs the issue.
– Assuming uniformity: customs vary — do not assume a practice in one village applies countywide.
– Neglecting human rights angles: failing to anticipate constitutional challenges to a custom (especially on gender equality) can be strategically ruinous.

Conclusion

Custom and usage remain important, practical tools in Indian litigation — particularly in family, succession, property and commercial disputes. But their success depends on rigorous pleading, robust multi‑modal proof, and careful navigation of statutory and constitutional constraints. Practitioners should treat custom as a factual mosaic to be reconstructed with documentary and oral evidence, not as an a priori legal trump. When properly pleaded and proved, a valid custom can shape substantive outcomes; when ill‑proved or repugnant, it will be displaced by statute or constitutional principle. The wise advocate prepares for both possibilities: prove what you must, and be ready to show why the custom is reasonable and legally tenable.