Customary
Law
Fifteen chapter notes covering the role of custom as a source of law in India — the requirements of a valid custom, the kinds of custom, the burden of proof, customary law of tribal communities, customary marriage and divorce, customary inheritance, and the interaction with codified personal laws and the Constitution. Custom first, requirements second, leading case third.
Custom — the law of communities the codified statute does not reach.
Custom occupies a distinct place in Indian legal sources. Unlike legislation (which is enacted) or precedent (which is judicial), custom is the law that communities work out for themselves over time. Indian courts recognise custom as a source of law where it satisfies the classical requirements — antiquity, continuity, certainty, reasonableness, and consistency with statute and morality. The Hindu Marriage Act 1955, the Hindu Succession Act 1956, and the Shariat Act 1937 all preserve specific customs that differ from the codified rules.
These notes anchor every chapter to the requirements of valid custom and the leading Privy Council and Supreme Court decisions. The most-tested topics are the burden of proof on a person alleging custom, the kinds of custom (general, local, family, tribe, caste), and the customary laws of specific communities including Scheduled Tribes under the Fifth and Sixth Schedules of the Constitution.
Each chapter is designed to be read in twelve to fifteen minutes and to leave the reader with the requirement of valid custom, the burden of proof, the kind of custom, the statutory savings provision, and the leading authority.
How to read these notes
Start with the five requirements.
Every custom-law question begins with the five classical requirements — antiquity, continuity, certainty, reasonableness, and consistency with statute and morality. A custom that fails any one is not enforceable. The antiquity requirement is the most tested — the custom must have existed beyond the memory of man (now read as a long-recognised practice).
Test the burden of proof.
Custom is not presumed; it must be specifically pleaded and strictly proved by the party alleging it. The standard of proof is preponderance of probabilities, but the evidence must be clear and unambiguous. Mere isolated instances do not establish a custom — the practice must be shown to be regular and uniform within the community.
Test on the leading case.
If you can restate the holding of Salekh Chand v. Satya Gupta, Mirza Raja Pushavathi Vijayaram Gajapathi v. Pushavathi Visweswar, or Hurpurshad v. Sheo Dyal in two sentences, you understand the chapter. If not, return to the statutory section and rebuild from there.
All 15 chapters, in 4 groups
Sequenced through the natural structure of the subject — every chapter sits in a doctrinal cluster.Foundations — What is Custom?
Definition, place in the sources of law
The definition of custom in Indian law, the place of custom alongside legislation, precedent, and equity in the hierarchy of sources, the historical role of custom in pre-codification Hindu and Muslim law, and the constitutional and statutory recognition of custom in Article 13(3)(a) and the Hindu Marriage Act 1955.
Requirements of Valid Custom
The five-fold test
The five classical requirements that a custom must satisfy to be enforceable in Indian courts — antiquity (long usage), continuity (uninterrupted practice), certainty (precise and definite content), reasonableness (not contrary to public policy or morality), and consistency with statute (not in conflict with codified law unless saved by express provision).
Kinds of Custom & Proof
General, local, family + burden of proof
The classification of customs — general customs binding throughout the territory, local customs binding within a defined area, family customs binding within a particular family, tribe or caste customs binding within a community. The burden of proof on the party alleging custom, the modes of proof including settlements, judgments, and oral evidence, and the strict standard of proof required.
Customary Law in Practice & Wrap-Up
Tribal law + statutory savings + reference
The customary law of Scheduled Tribes under the Fifth and Sixth Schedules of the Constitution, the role of custom in customary marriage and divorce within Hindu law, the statutory savings provisions in the Hindu Marriage Act and Hindu Succession Act, the interaction between custom and the personal laws, and the landmark Privy Council and Supreme Court decisions on custom as a source of law.