Customary Practice as a source of law

Custom is also known as "Sadachara". The Smrutis and Digest were largely based upon
customary law. However, the Sadachara should not be contrary to Dharma. Custom is a rule
followed by the bulk of the people for a long time. Custom may be defined as a habitual
course of conduct generally observed in a community. According Manu, when there was no
prescription in the Smrutis, custom was a source of Dharma. It is explained in the maxim "via
trita via tuta" which means the beaten path is the safe path. Customs are of various kinds.
Customs may be of castes, tribes, classes and families. The courts and legislation have given
fullest effect to custom. The Privy Council in Collector of Mathura v. Mootoo Ramalinga
[1868 12 M.I.A 327] held that “Under the Hindu system of law, clear proof of usage will
outweigh the written text of the law". In Palaniappan Chetti v. Alagan Chetti the Supreme
Court also regarded custom as a source of hindu law. Section 39(a) of HMA also recognizes
custom as a source of law.
A custom is a rule, which in a particular family or a particular class or community, or in a
particular district, has from long usage, obtained the force of law. It must be ancient, certain,
and reasonable. In Vannia Kone v. Vannichi Ammal it was held that the custom must not be
opposed to morality or public policy, and it must not be expressly forbidden by the
legislature. A custom derives its force from the fact that it has, from long usage, obtained the
force of law. In Gokal Chand v. Parvin Kumari it was decided that the custom must be
ancient; but it is not of the essence of this rule that its antiquity must in every case be carried
back to a period beyond the memory of man. 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. It is incumbent on a party setting up a custom to allege and prove the
custom on which he relies.
Venkata Challamma v. Cheekati  It is a well-established law that custom cannot be
enlarged by parity of reasoning, since it is the usage that makes the law and not the reason of
the thing.