Custom

  1. Custom — Presumption of – Custom not pleaded by the parties nor there is an issue — Presumption is that parties in Dogra Regime were governed by Shariat law and not by custom. Beero v. Mst. Said Bi 1992 SCR 286 (A)
  2. Contention that the parties were governed by custom and by Shariah law — The point was resolved by the trial Court by holding that the parties were Muslim and were governed by Shariah law — The defendants failed to prove that custom was prevailing in their family — The finding of the trial Court was upheld by the District Judge and High Court in appeal — No appeal was filed in the Supreme Court — Thus the question that parties were governed by Shariah law has attained finality. Muhammad Aziz v. Abdul Razzaq & 9 others 2008 SCR 385 (A)
  3. Proof of — If a party pleads the Custom then it is enjoined upon it party to first plead the Custom and then prove the same. Mst. Abdul Bi (deceased) through L.H. v. Collector Land Acquisition & 3 others 2016 SCR 1338 (A) 1998 SCR 333 rel.
  4. —Custom—to gain status of law—requirements—Held: it is essential for such habit, traditional activity, practice or custom to gain status of law before the local authorities or Courts of law, being immemorial, reasonable, remained continued without interruption since its immemorial origin, and be certain in respect of its nature generally, and the persons whom it is alleged to affect. Muhammad Zareed & others v. Muhammad Haroon & others 2022 SCR 1685 (L)
  5. —Proof of existence of established custom at relevant time—requirements— Article 117 and Article 118, Qanun-e-Shahadat Order 1984—Held: Article 117 and Article 118 deal with burden of proof and on whom burden of proof lies—Held: By a juxtaposed bare reading of provisions of Qanun-e-Shahadat Order, 1984, i.e., Articles 117 and 118, it transpires that any person who asserts and seeks judgment of Court upon plea and existence of certain fact, raised in a suit or proceedings before a Court is required and has to prove such fact and burden lies on such person asserting the existence of a certain fact. In other words, if a person asserts the existence of a certain fact but fails before Court to prove the existence of as such certain fact, then his assertion or claim about that certain fact must fail. Muhammad Zareed & others v. Muhammad Haroon & others 2022 SCR 1685 (O) 2019 SCR 1541 rel.
  6. —Proof of established custom—custom is required not to be proved in an ordinary manner as of proving of some fact—requisites provided—as under: (a)          Under the Sri Partap Personal Law Act, it is the Personal Law of the parties which governs succession unless a custom to the contrary is proved. If no custom is proved the ordinary law will govern the case. (b)          Primary presumption about applicable law would be personal law of parties, i.e, Muslim Personal Law, in case of parties are Muslims, and ordinary law regulates everything beyond custom in the matters relating to succession, inheritance, marriage, guardianship, etc. and the administration of law in such matters, is enjoined by Section 4 of Sri Partap Jammu and Kashmir Laws Consolidation Act (IV of 1977) (c)           There is no presumption in favour of existence of custom, (d)        The custom cannot be extended by analogy. (e)        If a controversy arises regarding inheritance to the fact that parties are governed by custom it cannot be implied that customary law is a complete code of the rules of inheritance to the total exclusion of the Personal Law. (f)        if a person relies upon a family, tribal or local custom in derogation of general law in support of his case, he must give full particulars of the custom in his pleadings, (g)        Existence of custom is a question of fact and the burden of proof is always on the party who relies on it and such party has to prove it by positive evidence. (h)        the very best possible evidence and that of a high pedestal is needed to establish the existence of a custom as apposed to the Personal Law of the parties to a litigation. (i)         The more abnormal the custom pleaded by a party the heavier is the burden on the party alleging existence of such custom and inference as to the existence of a custom cannot be drawn simply on the basis of the existence of some other analogous custom which is not in conformity with the Personal Law of the parties. and if official record, judgments and decrees and other documents exist in proof of a custom, these are best proof of the custom and the person relying on the custom should produce and exhibit them, Mere oral evidence cannot be proper substitute of documents, unless party asserting as such and its witnesses produce undeniable and un-rebuttable incidents of existence of ‘custom’ in the community as a customary law, If the parties alleging the custom fails to prove the custom the Personal Law of the party will apply.” Muhammad Zareed & others v. Muhammad Haroon & others 2022 SCR 1685 (P) 1984 SCMR 1081; 1989 CLC 407; 1992 SCR 286; 2001 MLD 212 (SC AJK); 2008 SCR 385; 2016 SCR 1338; 1998 SCR 333; AIR 1957 J&K 3; AIR 1959 J&K 52; AIR. 1961 K&K 31; AIR1973 J&K 28; AIR 1967 J&K 81; 12 J&K LR 108; AIR 1972 J&K 105; 1959 AIR 1041 rel. PLD 1956 Lah. 528; PLD 1961 Dac.79; AIR 1973 J&K; 1980 CLC 30; 1984 SCMR 1081; 1989 CLC 407; 2001 MLD 212 (SC AJK); AIR (SC) 418=(2008) 13 SCC 119= http://indiankanoon.org/doc/197107/, ref & rel.
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