Custom as a source of law

Custom refers to the code of conduct that has the express approval of the community that observes it. In primitive societies, there were no institutions that acted as authority over the people. This led to people organizing themselves to form cohesive groups in order to maintain fairness, equality, and liberty. They started developing rules with coordinated efforts to make decisions. They eventually started recognising the traditions and rituals practiced by the community routinely and formed a systematized form of social regulation. In India, laws relating to marriage and divorce are mostly developed from customs followed by different religious communities. Additionally, several communities belonging to the Scheduled Tribes category have their own customs related to marriage. As a result of that Section 2(2) of the Hindu Marriage Act, 1955 has exempted Scheduled Tribes from the application of this Act. 

Requisites of a valid custom

1. Reasonability: The custom must be reasonable or practical and must conform with the basic morality prevailing in the modern-day society. 
2. Antiquity: It must have been practiced for time immemorial. 
3. Certainty: The custom must be clear and unambiguous on how it should be practiced.  
4. Conformity with statutes: No custom must go against the law of the land. 
5. Continuity in practice: Not only the custom must be practiced for time immemorial, but it should also be practiced without interruption. 
6. Must not be in opposition to public policy: The custom must adhere to the public policy of the state. 
7. Must be general or universal: There must be unanimity in the opinion of the community or place in which it is practiced. Hence, it should be universal or general in its application. 

Types of customs 

1. Customs without a binding obligation 

There are customs that are followed in society that do not have a legal binding force. Such customs are related to clothing, marriage, etc. Not abiding by such customs can only result in a social boycott and not legal consequences. 

2. Customs with a binding obligation

Customs that are meant to be followed by law are called customs with a binding obligation. They are not related to social conventions or traditions. There are mainly two types of customs with binding obligations- Legal customs and Conventional customs. 

1. Legal customs: Legal customs are absolute in sanction. They are obligatory in nature and attract legal consequences if not followed. Two types of legal customs are general customs and local customs. General customs are enforced throughout the territory of a state. Local customs on the other hand operate only in particular localities.

      2 ..Conventional customs: Conventional customs are those customs   that are enforceable only on their acceptance through an agreement. Such a custom is only enforceable on the people who are parties to the agreement incorporating it. Two types of conventional customs are general conventional customs and local conventional customs. General Conventional Customs are practiced throughout a territory. Local Conventional Customs on the other hand is restricted to a particular place or to a particular trade or transaction. 

Difference between custom and prescription 

The main difference between the two is that custom gives rise to law and prescription gives rise to a right. Custom is generally observed as a course of conduct and is legally enforceable. Prescription refers to the acquisition of a right or title. When local custom applies to society, the prescription is applicable only to a particular person. For example, when a person X’s forefathers have been grazing their cattle on a particular land for years without restriction, X acquires the same right to graze his cattle on the land. The right acquired by X is called a prescription. For a prescription to be valid, it must be practised from time immemorial. In India, uninterrupted enjoyment for 20 years is essential to acquire a right to light and air as per the Indian Easements Act, 1882.