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Custom



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A Custom is a rule in force by virtue of long usage and has obtained the force of law. It can be private, public or a general custom (local customs, caste or class customs and trade customs)

  • The Burden of proof of a custom lies on the party claiming it.
  • A right of custom can be proved by:
    • By direct evidence
    • By evidence of the acts of the kind, and acquiescence in those acts
    • By the decision of courts recognizing the custom which is relevant under Section 42
    • By declaration of deceased persons in cases of public right or custom under Section 32
    • By evidence of opinions of persons who are in a position to know of the existence of a custom or usage in their locality under Section 48
    • By judicial notice of custom or right forming part of Indian law such as Hindu Law or Mohammedan Law under Section 57

Local customs are no longer a direct source of law but their application by the courts brought them into the common law.

Related Cases / Recent Cases

  • Ramakrishna Mohapatra and others vs Gangadhar Mohapatra and others, AIR 1958 Ori 26. Divisional Bench of Orissa High Court laid down some rules for proving a custom.
  • New Windsor Corporation v Mellor [1975] Ch 380, [1975] 3 All ER 44: Rights to indulge in sports and pastimes on a village green
  • Mercer v Denne [1905] 2 Ch 538: Rights to dry shing nets on land within a parish.
  • Mills v Colchester Corporation (1867) LR 2 CP 476; Alfred F Beckett Ltd v Lyons [1967] Ch 449, [1967] 1 All ER 833: Where the right to fish depended upon the grant of a licence by the owners of an oyster fishery, it was held that there was no custom since enjoyment had never been as of right.

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