NCERT Textbook: Sources of Law | NCERT Books & Solutions for Humanities - Humanities/Arts PDF Download

 Page 1


106
I. WHERE DOES LAW COME FROM?
II. CLASSIFICATION OF SOURCES
C
C
III. CUSTOM AS A SOURCE OF LAW
To have a clear and complete understanding of law, it is essential to understand the sources of 
law. Sources of law mean the sources from where law or the binding rules of human conduct 
originate. In other words, law is derived from sources. Jurists have different views on the origin 
and sources of law, as they have regarding the definition of law. As the term 'law'has several 
meanings, legal experts approach the sources of law from various angles. 
For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine 
consider custom as the most important source of law. Natural law school considers nature and 
human reason as the source of law, while theologians consider the religious scripts as sources of 
law. Although there are various claims and counter claims regarding the sources of law, it is true 
that in almost all societies, law has been derived from similar sources.
Salmond, an English Jurist, has classified sources of law into the following categories: 
Formal Sources of Law: These are the sources from which law derives its force and 
validity. A law enacted by the State or Sovereign falls into this category. 
Material Sources of Law: It refers to the material of law. In simple words, it is all about the 
matter from where the laws are derived. Customs fall in this category of law. 
However, if we look around and examine the contemporary legal systems, it may be seen that 
most legal systems are based on legislations. At the same time, it is equally true that sometimes 
customs play a significant role in the legal system of a country. In some of the legal systems, 
court decisions are binding as law. 
On the basis of the above discussion, three major sources of law can be identified in any modern 
society are as follows: 
i. Custom 
ii. Judicial precedent 
iii. Legislation
A custom, to be valid, must be observed continuously for a very long time without any 
interruption. Further, a practice must be supported not only for a very long time, but it must 
UNIT 02: CHAPTER 3 
Sources of Law
Page 2


106
I. WHERE DOES LAW COME FROM?
II. CLASSIFICATION OF SOURCES
C
C
III. CUSTOM AS A SOURCE OF LAW
To have a clear and complete understanding of law, it is essential to understand the sources of 
law. Sources of law mean the sources from where law or the binding rules of human conduct 
originate. In other words, law is derived from sources. Jurists have different views on the origin 
and sources of law, as they have regarding the definition of law. As the term 'law'has several 
meanings, legal experts approach the sources of law from various angles. 
For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine 
consider custom as the most important source of law. Natural law school considers nature and 
human reason as the source of law, while theologians consider the religious scripts as sources of 
law. Although there are various claims and counter claims regarding the sources of law, it is true 
that in almost all societies, law has been derived from similar sources.
Salmond, an English Jurist, has classified sources of law into the following categories: 
Formal Sources of Law: These are the sources from which law derives its force and 
validity. A law enacted by the State or Sovereign falls into this category. 
Material Sources of Law: It refers to the material of law. In simple words, it is all about the 
matter from where the laws are derived. Customs fall in this category of law. 
However, if we look around and examine the contemporary legal systems, it may be seen that 
most legal systems are based on legislations. At the same time, it is equally true that sometimes 
customs play a significant role in the legal system of a country. In some of the legal systems, 
court decisions are binding as law. 
On the basis of the above discussion, three major sources of law can be identified in any modern 
society are as follows: 
i. Custom 
ii. Judicial precedent 
iii. Legislation
A custom, to be valid, must be observed continuously for a very long time without any 
interruption. Further, a practice must be supported not only for a very long time, but it must 
UNIT 02: CHAPTER 3 
Sources of Law
107
also be supported by the opinion of the general public and morality. However, every custom 
need not become law. For example, the Hindu Marriages Act, 1955 prohibits marriages which 
are within the prohibited degrees of relationship. However, the Act still permits marriages 
within the prohibited degree of relationship if there is a proven custom within a certain 
community.
Custom can simply be explained as those long established practices or unwritten rules which 
have acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; In fact 
it was considered as the real source of law. With the passage of time and the advent of modern 
civilization, the importance of custom as a source of law diminished and other sources such as 
judicial precedents and legislation gained importance. 
Can Custom be law?
There is no doubt about the fact that custom is an important source of law. Broadly, there are two 
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed 
custom as law because it did not originate from the will of the sovereign. Jurists like Savigny 
consider custom as the main source of law. According to him the real source of law is the will of 
the people and not the will of the sovereign. The will of the people has always been reflected in 
the custom and traditions of the society. Custom is hence a main source of law. 
Saptapadi is an example of customs as a source of law. It is the most importantrite of a Hindu 
marriage ceremony. The word, Saptapadi means "Seven steps". After tying the Mangalsutra, 
the newly-wed couple take seven steps around the holy fire, which is called Saptapadi.
The customary practice of Saptapadi has been incorporated in Section 7 of the Hindu 
Marriage Act, 1955.
 
Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are 
followed because of public opinion. 
ii. Customs with sanction: These customs are binding in nature and are enforced by the 
State. These customs may further be divided into the following categories: 
(a) Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the 
force of law. It is recognized and enforced by the courts. Legal custom may be further 
classified into the following two types: 
Kinds of Customs
Page 3


106
I. WHERE DOES LAW COME FROM?
II. CLASSIFICATION OF SOURCES
C
C
III. CUSTOM AS A SOURCE OF LAW
To have a clear and complete understanding of law, it is essential to understand the sources of 
law. Sources of law mean the sources from where law or the binding rules of human conduct 
originate. In other words, law is derived from sources. Jurists have different views on the origin 
and sources of law, as they have regarding the definition of law. As the term 'law'has several 
meanings, legal experts approach the sources of law from various angles. 
For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine 
consider custom as the most important source of law. Natural law school considers nature and 
human reason as the source of law, while theologians consider the religious scripts as sources of 
law. Although there are various claims and counter claims regarding the sources of law, it is true 
that in almost all societies, law has been derived from similar sources.
Salmond, an English Jurist, has classified sources of law into the following categories: 
Formal Sources of Law: These are the sources from which law derives its force and 
validity. A law enacted by the State or Sovereign falls into this category. 
Material Sources of Law: It refers to the material of law. In simple words, it is all about the 
matter from where the laws are derived. Customs fall in this category of law. 
However, if we look around and examine the contemporary legal systems, it may be seen that 
most legal systems are based on legislations. At the same time, it is equally true that sometimes 
customs play a significant role in the legal system of a country. In some of the legal systems, 
court decisions are binding as law. 
On the basis of the above discussion, three major sources of law can be identified in any modern 
society are as follows: 
i. Custom 
ii. Judicial precedent 
iii. Legislation
A custom, to be valid, must be observed continuously for a very long time without any 
interruption. Further, a practice must be supported not only for a very long time, but it must 
UNIT 02: CHAPTER 3 
Sources of Law
107
also be supported by the opinion of the general public and morality. However, every custom 
need not become law. For example, the Hindu Marriages Act, 1955 prohibits marriages which 
are within the prohibited degrees of relationship. However, the Act still permits marriages 
within the prohibited degree of relationship if there is a proven custom within a certain 
community.
Custom can simply be explained as those long established practices or unwritten rules which 
have acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; In fact 
it was considered as the real source of law. With the passage of time and the advent of modern 
civilization, the importance of custom as a source of law diminished and other sources such as 
judicial precedents and legislation gained importance. 
Can Custom be law?
There is no doubt about the fact that custom is an important source of law. Broadly, there are two 
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed 
custom as law because it did not originate from the will of the sovereign. Jurists like Savigny 
consider custom as the main source of law. According to him the real source of law is the will of 
the people and not the will of the sovereign. The will of the people has always been reflected in 
the custom and traditions of the society. Custom is hence a main source of law. 
Saptapadi is an example of customs as a source of law. It is the most importantrite of a Hindu 
marriage ceremony. The word, Saptapadi means "Seven steps". After tying the Mangalsutra, 
the newly-wed couple take seven steps around the holy fire, which is called Saptapadi.
The customary practice of Saptapadi has been incorporated in Section 7 of the Hindu 
Marriage Act, 1955.
 
Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are 
followed because of public opinion. 
ii. Customs with sanction: These customs are binding in nature and are enforced by the 
State. These customs may further be divided into the following categories: 
(a) Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the 
force of law. It is recognized and enforced by the courts. Legal custom may be further 
classified into the following two types: 
Kinds of Customs
108
C
C
C
C
C
C
C
General Customs: These types of customs prevail throughout the territory of the 
State.
Local Customs: Local customs are applicable to a part of the State, or a 
particular region of the country.
(b) Conventional Customs: Conventional customs are binding on the parties to an 
agreement. When two or more persons enter into an agreement related to a trade, it 
is presumed in law that they make the contract in accordance with established 
convention or usage of that trade. For instance an agreement between landlord and 
tenant regarding the payment of the rent will be governed by convention prevailing 
in this regard. 
All customs cannot be accepted as sources of law, nor can all customs be recognized and 
enforced by the courts. The jurists and courts have laid down some essential tests for customs to 
be recognized as valid sources of law. These tests are summarized as follows:
Antiquity: In order to be legally valid customs should have been in existence for a long 
time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I 
King of England has been fixed for the determination of validity of customs. However, in 
India there is no such time limit for deciding the antiquity of the customs. The only 
condition is that those should have been in practice since time immemorial. 
Continuous: A custom to be valid should have been in continuous practice. It must have 
been enjoyed without any kind of interruption. Long intervals and disrupted practice of a 
custom raise doubts about the validity of the same.
Exercised as a matter of right: Custom must be enjoyed openly and with the knowledge of 
the community. It should not have been practised secretly. A custom must be proved to be a 
matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid 
custom. 
Reasonableness: A custom must conform to the norms of justice and public utility. A 
custom, to be valid, should be based on rationality and reason. If a custom is likely to cause 
more inconvenience and mischief than convenience, such a custom will not be valid. 
Morality: A custom which is immoral or opposed to public policy cannot be a valid custom. 
Courts have declared many customs as invalid as they were practised for immoral purpose 
Essentials of a valid custom 
ACTIVITY:
Think of a popular custom which is not translated into law. What are its merits and demerits?
Page 4


106
I. WHERE DOES LAW COME FROM?
II. CLASSIFICATION OF SOURCES
C
C
III. CUSTOM AS A SOURCE OF LAW
To have a clear and complete understanding of law, it is essential to understand the sources of 
law. Sources of law mean the sources from where law or the binding rules of human conduct 
originate. In other words, law is derived from sources. Jurists have different views on the origin 
and sources of law, as they have regarding the definition of law. As the term 'law'has several 
meanings, legal experts approach the sources of law from various angles. 
For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine 
consider custom as the most important source of law. Natural law school considers nature and 
human reason as the source of law, while theologians consider the religious scripts as sources of 
law. Although there are various claims and counter claims regarding the sources of law, it is true 
that in almost all societies, law has been derived from similar sources.
Salmond, an English Jurist, has classified sources of law into the following categories: 
Formal Sources of Law: These are the sources from which law derives its force and 
validity. A law enacted by the State or Sovereign falls into this category. 
Material Sources of Law: It refers to the material of law. In simple words, it is all about the 
matter from where the laws are derived. Customs fall in this category of law. 
However, if we look around and examine the contemporary legal systems, it may be seen that 
most legal systems are based on legislations. At the same time, it is equally true that sometimes 
customs play a significant role in the legal system of a country. In some of the legal systems, 
court decisions are binding as law. 
On the basis of the above discussion, three major sources of law can be identified in any modern 
society are as follows: 
i. Custom 
ii. Judicial precedent 
iii. Legislation
A custom, to be valid, must be observed continuously for a very long time without any 
interruption. Further, a practice must be supported not only for a very long time, but it must 
UNIT 02: CHAPTER 3 
Sources of Law
107
also be supported by the opinion of the general public and morality. However, every custom 
need not become law. For example, the Hindu Marriages Act, 1955 prohibits marriages which 
are within the prohibited degrees of relationship. However, the Act still permits marriages 
within the prohibited degree of relationship if there is a proven custom within a certain 
community.
Custom can simply be explained as those long established practices or unwritten rules which 
have acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; In fact 
it was considered as the real source of law. With the passage of time and the advent of modern 
civilization, the importance of custom as a source of law diminished and other sources such as 
judicial precedents and legislation gained importance. 
Can Custom be law?
There is no doubt about the fact that custom is an important source of law. Broadly, there are two 
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed 
custom as law because it did not originate from the will of the sovereign. Jurists like Savigny 
consider custom as the main source of law. According to him the real source of law is the will of 
the people and not the will of the sovereign. The will of the people has always been reflected in 
the custom and traditions of the society. Custom is hence a main source of law. 
Saptapadi is an example of customs as a source of law. It is the most importantrite of a Hindu 
marriage ceremony. The word, Saptapadi means "Seven steps". After tying the Mangalsutra, 
the newly-wed couple take seven steps around the holy fire, which is called Saptapadi.
The customary practice of Saptapadi has been incorporated in Section 7 of the Hindu 
Marriage Act, 1955.
 
Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are 
followed because of public opinion. 
ii. Customs with sanction: These customs are binding in nature and are enforced by the 
State. These customs may further be divided into the following categories: 
(a) Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the 
force of law. It is recognized and enforced by the courts. Legal custom may be further 
classified into the following two types: 
Kinds of Customs
108
C
C
C
C
C
C
C
General Customs: These types of customs prevail throughout the territory of the 
State.
Local Customs: Local customs are applicable to a part of the State, or a 
particular region of the country.
(b) Conventional Customs: Conventional customs are binding on the parties to an 
agreement. When two or more persons enter into an agreement related to a trade, it 
is presumed in law that they make the contract in accordance with established 
convention or usage of that trade. For instance an agreement between landlord and 
tenant regarding the payment of the rent will be governed by convention prevailing 
in this regard. 
All customs cannot be accepted as sources of law, nor can all customs be recognized and 
enforced by the courts. The jurists and courts have laid down some essential tests for customs to 
be recognized as valid sources of law. These tests are summarized as follows:
Antiquity: In order to be legally valid customs should have been in existence for a long 
time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I 
King of England has been fixed for the determination of validity of customs. However, in 
India there is no such time limit for deciding the antiquity of the customs. The only 
condition is that those should have been in practice since time immemorial. 
Continuous: A custom to be valid should have been in continuous practice. It must have 
been enjoyed without any kind of interruption. Long intervals and disrupted practice of a 
custom raise doubts about the validity of the same.
Exercised as a matter of right: Custom must be enjoyed openly and with the knowledge of 
the community. It should not have been practised secretly. A custom must be proved to be a 
matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid 
custom. 
Reasonableness: A custom must conform to the norms of justice and public utility. A 
custom, to be valid, should be based on rationality and reason. If a custom is likely to cause 
more inconvenience and mischief than convenience, such a custom will not be valid. 
Morality: A custom which is immoral or opposed to public policy cannot be a valid custom. 
Courts have declared many customs as invalid as they were practised for immoral purpose 
Essentials of a valid custom 
ACTIVITY:
Think of a popular custom which is not translated into law. What are its merits and demerits?
109
or were opposed to public policy. Bombay High Court in the case of Mathura Naikon v. Esu 
Naekin, ((1880) ILR 4 Bom 545) held that, the custom of adopting a girl for immoral 
purposes is illegal. 
Status with regard to: In any modern State, when a new legislation is enacted, it is 
generally preferred to the custom. Therefore, it is imperative that a custom must not be 
opposed or contrary to legislation. Many customs have been abrogated by laws enacted by 
the legislative bodies in India. For instance, the customary practice of child marriage has 
been declared as an offence. Similarly, adoption laws have been changed by legislation in 
India. 
Custom was the most important source of law in ancient India. Even the British initially adopted 
the policy of non-intervention in personal matters of Hindus and Muslims. The British courts, in 
particular, the Privy Council, in cases such as Mohammad Ibrahim v. Shaik Ibrahim, (AIR 1922 PC 
59) observed and underlined the importance of custom in moulding the law. At the same time, it 
is important to note that customs were not uniform or universal throughout the country. Some 
regions of the country had their own customs and usages. 
These variances in customs were also considered a hindrance in the integration of various 
communities of the country. During our freedom struggle, there were parallel movements for 
social reform in the country. Social reformers raised many issues related to women and children 
such as widow re-marriage and child marriage.
After independence and the enactment of the Constitution, the Indian Parliament took many 
steps and abrogated many old customary practices by some progressive legislation. Hindu 
personal laws were codified and the Hindu Marriage Act, 1955 and the Hindu Adoption Act, 1955, 
were adopted. The Constitution of India provided a positive environment for these social 
changes. After independence, the importance of custom has definitely diminished as a source of 
law and judicial precedent, and legislation has gained a more significant place. A large part of 
Indian law, especially personal laws, however, are still governed by the customs. Hindu Personal 
Laws that have been codified are as follows:
C
Importance of custom as a source of law in India 
ACTIVITY:
Trace the developments relating to the Property Rights of Women with special reference to the 
Hindu Women's Right to Property Act, 1937; Hindu Succession Act, 1956 and Hindu Succession 
(Amendment) Act, 2005.
Page 5


106
I. WHERE DOES LAW COME FROM?
II. CLASSIFICATION OF SOURCES
C
C
III. CUSTOM AS A SOURCE OF LAW
To have a clear and complete understanding of law, it is essential to understand the sources of 
law. Sources of law mean the sources from where law or the binding rules of human conduct 
originate. In other words, law is derived from sources. Jurists have different views on the origin 
and sources of law, as they have regarding the definition of law. As the term 'law'has several 
meanings, legal experts approach the sources of law from various angles. 
For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine 
consider custom as the most important source of law. Natural law school considers nature and 
human reason as the source of law, while theologians consider the religious scripts as sources of 
law. Although there are various claims and counter claims regarding the sources of law, it is true 
that in almost all societies, law has been derived from similar sources.
Salmond, an English Jurist, has classified sources of law into the following categories: 
Formal Sources of Law: These are the sources from which law derives its force and 
validity. A law enacted by the State or Sovereign falls into this category. 
Material Sources of Law: It refers to the material of law. In simple words, it is all about the 
matter from where the laws are derived. Customs fall in this category of law. 
However, if we look around and examine the contemporary legal systems, it may be seen that 
most legal systems are based on legislations. At the same time, it is equally true that sometimes 
customs play a significant role in the legal system of a country. In some of the legal systems, 
court decisions are binding as law. 
On the basis of the above discussion, three major sources of law can be identified in any modern 
society are as follows: 
i. Custom 
ii. Judicial precedent 
iii. Legislation
A custom, to be valid, must be observed continuously for a very long time without any 
interruption. Further, a practice must be supported not only for a very long time, but it must 
UNIT 02: CHAPTER 3 
Sources of Law
107
also be supported by the opinion of the general public and morality. However, every custom 
need not become law. For example, the Hindu Marriages Act, 1955 prohibits marriages which 
are within the prohibited degrees of relationship. However, the Act still permits marriages 
within the prohibited degree of relationship if there is a proven custom within a certain 
community.
Custom can simply be explained as those long established practices or unwritten rules which 
have acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; In fact 
it was considered as the real source of law. With the passage of time and the advent of modern 
civilization, the importance of custom as a source of law diminished and other sources such as 
judicial precedents and legislation gained importance. 
Can Custom be law?
There is no doubt about the fact that custom is an important source of law. Broadly, there are two 
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed 
custom as law because it did not originate from the will of the sovereign. Jurists like Savigny 
consider custom as the main source of law. According to him the real source of law is the will of 
the people and not the will of the sovereign. The will of the people has always been reflected in 
the custom and traditions of the society. Custom is hence a main source of law. 
Saptapadi is an example of customs as a source of law. It is the most importantrite of a Hindu 
marriage ceremony. The word, Saptapadi means "Seven steps". After tying the Mangalsutra, 
the newly-wed couple take seven steps around the holy fire, which is called Saptapadi.
The customary practice of Saptapadi has been incorporated in Section 7 of the Hindu 
Marriage Act, 1955.
 
Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are 
followed because of public opinion. 
ii. Customs with sanction: These customs are binding in nature and are enforced by the 
State. These customs may further be divided into the following categories: 
(a) Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the 
force of law. It is recognized and enforced by the courts. Legal custom may be further 
classified into the following two types: 
Kinds of Customs
108
C
C
C
C
C
C
C
General Customs: These types of customs prevail throughout the territory of the 
State.
Local Customs: Local customs are applicable to a part of the State, or a 
particular region of the country.
(b) Conventional Customs: Conventional customs are binding on the parties to an 
agreement. When two or more persons enter into an agreement related to a trade, it 
is presumed in law that they make the contract in accordance with established 
convention or usage of that trade. For instance an agreement between landlord and 
tenant regarding the payment of the rent will be governed by convention prevailing 
in this regard. 
All customs cannot be accepted as sources of law, nor can all customs be recognized and 
enforced by the courts. The jurists and courts have laid down some essential tests for customs to 
be recognized as valid sources of law. These tests are summarized as follows:
Antiquity: In order to be legally valid customs should have been in existence for a long 
time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I 
King of England has been fixed for the determination of validity of customs. However, in 
India there is no such time limit for deciding the antiquity of the customs. The only 
condition is that those should have been in practice since time immemorial. 
Continuous: A custom to be valid should have been in continuous practice. It must have 
been enjoyed without any kind of interruption. Long intervals and disrupted practice of a 
custom raise doubts about the validity of the same.
Exercised as a matter of right: Custom must be enjoyed openly and with the knowledge of 
the community. It should not have been practised secretly. A custom must be proved to be a 
matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid 
custom. 
Reasonableness: A custom must conform to the norms of justice and public utility. A 
custom, to be valid, should be based on rationality and reason. If a custom is likely to cause 
more inconvenience and mischief than convenience, such a custom will not be valid. 
Morality: A custom which is immoral or opposed to public policy cannot be a valid custom. 
Courts have declared many customs as invalid as they were practised for immoral purpose 
Essentials of a valid custom 
ACTIVITY:
Think of a popular custom which is not translated into law. What are its merits and demerits?
109
or were opposed to public policy. Bombay High Court in the case of Mathura Naikon v. Esu 
Naekin, ((1880) ILR 4 Bom 545) held that, the custom of adopting a girl for immoral 
purposes is illegal. 
Status with regard to: In any modern State, when a new legislation is enacted, it is 
generally preferred to the custom. Therefore, it is imperative that a custom must not be 
opposed or contrary to legislation. Many customs have been abrogated by laws enacted by 
the legislative bodies in India. For instance, the customary practice of child marriage has 
been declared as an offence. Similarly, adoption laws have been changed by legislation in 
India. 
Custom was the most important source of law in ancient India. Even the British initially adopted 
the policy of non-intervention in personal matters of Hindus and Muslims. The British courts, in 
particular, the Privy Council, in cases such as Mohammad Ibrahim v. Shaik Ibrahim, (AIR 1922 PC 
59) observed and underlined the importance of custom in moulding the law. At the same time, it 
is important to note that customs were not uniform or universal throughout the country. Some 
regions of the country had their own customs and usages. 
These variances in customs were also considered a hindrance in the integration of various 
communities of the country. During our freedom struggle, there were parallel movements for 
social reform in the country. Social reformers raised many issues related to women and children 
such as widow re-marriage and child marriage.
After independence and the enactment of the Constitution, the Indian Parliament took many 
steps and abrogated many old customary practices by some progressive legislation. Hindu 
personal laws were codified and the Hindu Marriage Act, 1955 and the Hindu Adoption Act, 1955, 
were adopted. The Constitution of India provided a positive environment for these social 
changes. After independence, the importance of custom has definitely diminished as a source of 
law and judicial precedent, and legislation has gained a more significant place. A large part of 
Indian law, especially personal laws, however, are still governed by the customs. Hindu Personal 
Laws that have been codified are as follows:
C
Importance of custom as a source of law in India 
ACTIVITY:
Trace the developments relating to the Property Rights of Women with special reference to the 
Hindu Women's Right to Property Act, 1937; Hindu Succession Act, 1956 and Hindu Succession 
(Amendment) Act, 2005.
110
Hindu Personal Laws
a) Hindu Marriage Act, 1955
b) Hindu Succession Act, 1956, 
c) Hindu Minority and Guardianship Act. 1956 and
d) Hindu Adoptions and Maintenance Act, 1956
ACTIVITY:
Find out the name of countries which follow the English Common Law system?
IV. JUDICIAL PRECEDENT AS A SOURCE OF LAW
DOCTRINE OF PRECEDENT IN INDIA - A BRITISH LEGACY
In simple words, judicial precedent refers to previously decided judgments of the superior 
courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This 
binding character of the previously decided cases is important, considering the hierarchy of the 
courts established by the legal systems of a particular country. In the case of India, this hierarchy 
has been established by the Constitution of India.
Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it 
as old as custom. It is an important feature of the English legal system as well as of other common 
law countries which follow the English legal system.
In most of the developed legal systems, judiciary is considered to be an important organ of the 
State. In modern societies, rights are generally conferred on the citizens by legislation and the 
main function of the judiciary is to adjudicate upon these rights. The judges decide those 
matters on the basis of the legislations and prevailing custom but while doing so, they also play a 
creative role by interpreting the law. By this exercise, they lay down new principles and rules 
which are generally binding on lower courts within a legal system. 
Given this background, it is important to understand the extent to which the courts are guided by 
precedents. It is equally important to understand what really constitutes the judicial decision in 
a case and which part of the decision is actually binding on the lower courts. 
According to Section 212 of the Government of India Act, 1919, the law laid down by Federal 
Court and any judgment of the Privy Council was binding on all courts of British India. Hence, 
Privy Council was supreme judicial authority - AIR 1925 PC 272.
Pre-Independence: