Customs and requirements of a valid custom

In simplest words, customs can be defined as rules or practices that are habitual in nature and are performed by certain castes or communities. For every caste, community, etc customs are different according to their beliefs and cultural histories. As per section 3 of Hindu Marriage Act, 1955, “custom” and “usage” signify any rule which having been continuously and observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community group or family. And since eligibility of any rule or practice is determined only when they have been continuously observed for a long, customs have been included into the Hindu law as a significant ancient source of law. But customs gain a status of legality or gets codified as law only when they possess no harm for the society and are prudent in nature. Customs are also dynamic in nature rather than static because they are in existence since ages and need to be amended eventually according to the required current times. Thus, for a custom to de declared as legitimate rule or law, there are some basis that gives validity to a custom and they are as follows –

  • Antiquity – a habitual practice can only be considered as a custom if it has been a habit since ages, ages whereof the reminiscence of a man is not contrary.  Immemorial custom is a transcendental regulation. There are many customs especially in Hindus especially related to marriages that have no traces of origin but are necessary and perform and without which marriages aren’t valid under Hindu law like that of Saat Pheras in around fire, Kanyadan, prohibition of Sapinda relationships( marriage among common parentage). Since they are immemorial and possess legal status they are accepted as valid customs that surely needs to be performed during Hindu marriage.
  • Reasonability – There are thousands of customs differing from caste to caste, family to family but among these numbers many are not reasonable and are just bizarre. For example Child marriage is kind of practice that has been in practice from a long time especially in state of Rajasthan but since it ruins the future of innocents and holds no reasonable mindset, it has been prohibited by law and is a penal offence now. However, common parentage marriage being illegal in Hindu law, a marriage with sister’s daughter(niece) is valid in south India with a reason getting daughter in exchange of daughter, even if in next generation. Thus, customs should hold some prudent reasons to be followed further.
  • Certainty – custom needs to have proof or evidence to show that it has been existent for a matter of truth otherwise any random practice would be labelled as custom to violate any law. In Madura Vs. Mootoo Ramalinga, court held that if there is clear proof of custom, it will supersede the written text or law. Therefore, people who follow the custom must prove its validity.
  • Continuance – the chain of custom that is being practiced since long ages should be unbreakable because if it breaks then the custom looses its validity. It applies to families too. If a custom is just a traditional practice of a family than it should be continuous in nature.
  • Not against the public policy – public policies are drafted for the well being of masses but customary practices have relation to only few people of society. Therefore, if a custom of small group of people goes beyond the framework of public policy and disturbs the lifestyle of masses then it couldn’t gains the valid legal status. Thus, any custom against the sacred law can prevail but it cannot prevail against the statutory law.

Thus these were some basis upon which validity of customs is decided and they are given legal recognition.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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