AIR 1946 BOMBAY 377

Bombay High Court

Hon'ble Judge(s): Kania, Gajendragadkar , JJ

(A)Hindu Law - Sources - Custom - Custom overrides text - Custom must be ancient, certain and reasonable - Onus to prove custom is on person setting it up - Permissive custom - Test of invariability cannot be applied - Nature of evidence to prove custom, indicated - Custom as to sagotra marriage among Deccani Brahmins held established. Under Hindu law custom is one of the three sources of law. Where there is a conflict between the custom and the text of the Smriti, custom overrides the text. A custom must be proved to be ancient, certain and reasonable, and being in derogation of the general rules of law, it must be established by clear and unambiguous evidence. When a party sets up a custom it is obvious that the onus to prove that custom is on him. The test of invariability can be legitimately applied in the case of customs like primogeniture. But, in the case of permissive customs the test of invariability cannot be rigidly applied.(Para 379C1 381C2 385C2 386C1 388C1) If in a particular case the party pleading a custom has produced general evidence of a respectable and reliable character showing that the particular custom prevails amongst the community to which the witnesses belong, and that the observance of the custom is well known for a fa....