SABARIMALA – MYTH BACKED SOCIETY AND WHY LAW SHOULD BE SUBJECTIVE TO CUSTOM

Abstract

Custom is a habitual course of conduct observed all over the world voluntarily by the people. Custom has an important role in regulation of human conduct in almost all the societies. In fact, it is one of the ancient sources of law-making. But with development of the society custom gradually vanished and legislation and judicial precedents became the main source. Custom is manmade, by their unconscious adoption of a certain code of conduct. Whenever some issue arises for solution regarding a custom its authority is based on nothing but its prolonged use and recognition by the world. Custom is some kind of a magical rule which is followed from the ancient period. Customary source is one of the major sources of law. Custom, as a source of law, involves the study of a number of its branches: its origin and nature, its importance, reasons for its recognition, its classification, its various theories, its distinction with prescription and usage, and the essentials of a valid custom. The chief nature of the custom is that, it is a generally observed code of conduct. The best illustration of the formation of such followed course of action is the way in which a path is formed. One man is different from the common, in the direction which is suggested either by the purpose he has in his mind, or by mere accident. If others follow the same path, a path is made. Custom may be considered as a fact and a law. As a fact, it is simply the frequent acts concerning the same subject; as a law, it is the result and consequence of that fact. Custom is a code of conduct observed uniformly and voluntarily by the people concerned. In Sanskrit there are three terms; Achara, meaning ‘rules relating religious observances’;then  Vyarahara, meaning ‘the rules of civil law’; and finally  Sadachara, meaning ‘the usage of virtuous men’. The word Sadachara, therefore, has been used for custom which means, ‘the handed down in regular succession from times immemorial among the four chief castes (Varna) and mixed races of the country’. Custom is a long standing practice. It is a usage that has by long continuance acquired a legal binding force. Custom is a sort of special rule which is in actual existence or possibly followed from time unknown and which has acquired the force of law in specific territory, although it may be contrary to the general law of the land.