Facts of the Case
A legal dispute arises where a pre-existing custom practiced by a community comes into direct conflict with a statutory provision enacted by the legislature. One party relies upon the long-standing custom, arguing that it governs their rights and obligations, while the other party contends that the statute overrides all customs, irrespective of antiquity or acceptance.
The court is required to decide whether the custom or the statute should prevail, and under what circumstances, if any, a custom can override statutory law. The issue is examined in the light of Austin’s Theory of Law, which emphasizes law as the command of the sovereign backed by sanction.
Issues in the Case
The following jurisprudential issues arise:
- Whether a statute prevails over a pre-existing custom under Indian law.
- Whether and when a custom can override or survive a statutory provision.
- What is the legal status of custom under Austin’s Imperative Theory of Law.
- How Indian courts balance customary law and legislative supremacy.
Legal Principles Covered Supporting the Proceedings and Judgements
(a) Statute versus Custom under Indian Law
The general rule is that statutory law prevails over custom. Once the legislature enacts a law on a subject, any inconsistent custom becomes invalid unless the statute expressly saves it.
This principle is recognized under:
- Article 13 of the Constitution of India, which invalidates customs inconsistent with fundamental rights
- Hindu Marriage Act, 1955 and Hindu Succession Act, 1956, which override contrary customs unless expressly preserved
(b) When Does Custom Prevail Over Statute?
A custom may prevail only when:
- The statute expressly recognizes or saves the custom, or
- The statute is silent, and the custom is ancient, certain, reasonable, and not opposed to public policy
(c) Austin’s Theory of Law
According to John Austin, law is the command of the sovereign backed by sanction. Customs are not law unless adopted by courts or sanctioned by the sovereign. Therefore:
- Custom has no independent legal authority
- It becomes law only when recognized by judicial authority
Under Austin’s view, once a statute is enacted, it represents the supreme command, and conflicting customs must give way.
(d) Case Law
Collector of Madura v. Moottoo Ramalinga Sethupathi (1868)
The Privy Council held that custom must yield to statute unless expressly saved.
State of Bombay v. Narasu Appa Mali (1952)
Reaffirmed that statutory law prevails over inconsistent customs.
Possible Judgement (With Reason)
The court would hold that statutory law prevails over pre-existing custom, as legislation represents the sovereign will. Applying Austin’s Imperative Theory, customs lack legal force unless recognized by the sovereign authority.
However, if the statute expressly preserves the custom or leaves scope for its application, such custom may continue to operate. In the absence of such saving, the conflicting custom must be declared invalid and unenforceable.
Thus, custom prevails over statute only when the statute permits it, otherwise the statute dominates.
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