Thibaut's rule about proof of custom
Shantanu Wavhal
(Querist) 02 February 2012
This query is : Resolved
Is Thibaut's rule about proof of custom applicable to Hindu marriage act ?
(i.e. - while proving a custom of marriage / divorce)
http://indiankanoon.org/doc/109236/
Madras High Court
Kunhambi And 6 Ors. vs Kalanthar And Ors. on 24 March, 1914
The mode of proving the existence of custom in any particular case is thus alluded to by Thibaut System des Pandakten Rechts, I. P. 15 in a passage cited by Sir Erskine Perry (Perry's O.C. 118) " A custom therefore, to hold good in law, requires, besides the above negative conditions (viz, that the custom is not unreasonable and applies to matters which the written law has left undetermined) the following positive condition, namely, that the majority at least of any given class of persons look upon the rule as binding, and it must be established by a series of well-known, concordant, and, on the whole, continuous instances. How many examples are necessary to prove a custom cannot be laid down beforehand, neither is the number to be left to the arbitrary discretion of the Judge; but the point in each case is whether the common consent of the class in question is clearly demonstrated by the number of instances proved. These considerations are not exclusive of each other. One attention must be given to each of them and to any others that may be relevant under the Evidence Act to the questions of fact involved.
Nadeem Qureshi
(Expert) 02 February 2012
Dear Amit wait for some time to another experts, I will search and give you the deatail in this regard
Shantanu Wavhal
(Querist) 02 February 2012
thanx sir.
I got some references :
Madras High Court
http://indiankanoon.org/doc/109236/
Kunhambi And 6 Ors. vs Kalanthar And Ors. on 24 March, 1914
Bombay High Court
http://indiankanoon.org/doc/174664/
Akbarally A. Adamji Peerbhoy vs Mahomedally Adamji Peerbhoy on 16 June, 1931
Bombay High Court
http://indiankanoon.org/doc/822362/
Cassumbhoy Ahmedbhoy vs Ahmedbhoy Hubibhoy And Rahimbhoy ... on 16 November, 1887
Shantanu Wavhal
(Querist) 02 February 2012
@ raj kumar makkad sir,
I didnt get u sir !!
Shantanu Wavhal
(Querist) 02 February 2012
all these cases were decided well before HMA, 1955.
further, i hardly found any reference of the said rule in any case decided after 1955.
so, is the rule still applicable after HMA, 1955 came into effect ?
Shonee Kapoor
(Expert) 03 February 2012
But the rule is self-explanatory, which part you have not understood.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
