History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.990

v4.c63.t2.990

The burden of proving a custom opposed to the general law or in derogation of the ordinary rights of another lies heavily on the person alleging it.¹⁸⁸⁹ The decided cases lay down several essentials of a valid custom. In order to make a particular custom valid it must be proved to be immemorial or ancient, uniform, certain, reasonable, obligatory and it must not be immoral or opposed to public policy or to any express enactment of the Legislature. What antiquity must be proved before a custom can be accepted as valid depends upon the circumstances of each case.¹⁸⁹⁰ When it is said that a custom must be ancient it is not meant that the antiquity must be carried back to a period beyond the memory of man. According to the Mit. on Yāj. II. 27 *smārta-kāla* (time within living memory) in relation to possession means a period of one hundred years, while according to Kātyāyana and Vyāsa it is only a period of sixty years.¹⁸⁹¹ On evidence of the prevalence of a custom even for 20, 30, 80 or 90 years the Courts have held that a presumption may arise that the custom is ancient and that if the presumption is not rebutted the Court may accept it as a valid and ancient custom.¹⁸⁹² Many instances have generally to be adduced for proof of a custom. No hard and fast rule can be laid down about the number of instances required to prove a custom.¹⁸⁹³ In certain cases it has been held that specific instances are not absolutely necessary, but the opinions of persons likely to know the existence of the custom is entitled to great weight, even though they may not be able to cite specific instances.1893a Customs once prevalant, particularly family customs, may come to be discontinued on account of accident, *change* in popular sentiment or by the concurrent will of all the members concerned.¹⁸⁹⁴ Customs must be strictly construed and cannot be extended by analogy or parity of reasoning. Because in a particular caste marriage with a maternal uncle's daughter is allowed by custom it does not follow that marriage with a maternal aunt's or paternal aunt's daughter will necessarily be valid. Vide H. of Dh. vol. II. p. 467 notes 1095-6. The evidence about a custom should be such as to prove the uniformity and continuity of the usage, the conviction of those following it that they were acting in accordance with law and the consciousness of obligatorines and the custom should not spring from mere habit, imitation and ignorance or mutual arrangement.¹⁸⁹⁵ A custom must not be unreasonable. A custom of excluding daughters from inheritance was held to be not unreasonable according to the ideas of the Hindu community.¹⁸⁹⁶ A custom that only members of certain castes (and not of others) were entitled to make use of a temple and to worship therein was held not unreasonable in India, though it may appear obnoxious to cultured people at the present day.¹⁸⁹⁷