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21. The wife can therefore be taken to have shown at best the marriage of 2 couples in their community within sapinda relationship.

22. The years of their marriage are not shown hence, the span of time to show the existence of the custom is not known. The custom propounded by her therefore, cannot be taken to have the attribute of either continuity or longevity, since the lapse of time of years between the marriages of these parties is not shown. The factum of uninterruptedness of the custom is also not made out. Aside from showing the factum of the marriages between 2 parties in sapinda relationship, the fact that it was accepted by the community as a whole is also not made out by a positive assertion. It may at best be taken that since these parties have admittedly married and continued within the community, no rejection of their marriage having been shown by the community on the part of the husband by his positive evidence, the implied acceptance may be made out. To see whether such evidence is sufficient to prove the custom by the party who propounds it, it would be useful to consider the series of judgments on the aspect of proof of custom as a source of Hindu law. The earliest of such judgments is in the case of Mirza Raja Pushpavathi Vijayaram Gajapathi Raj Marine Sultan Bahadur and Ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram and Ors. reported in AIR 1964 SC 118 (Raja) in which the family custom of impartibility of estate relating to movable properties viz. Jewelry, in case of Rajas was considered. Following the decision of Privy Council in the case of Shiba Prasad v. Rani Prayag Kumari . It was held that only one of the 4 rights of a joint Hindu family namely the right of survivorship was available in case of an impartible estate. Whether by custom in the family such a right to an impartible estate extended to the family jewelry was considered in that case. It was held in para 26 at page 130 that:--

But apart from this technical aspect of the matter, we must have regard to the attitude adopted by the parties and their course of conduct at the relevant time when we are dealing with the question of family custom." It was further observed that:--
In the matter of the proof of family custom, it is not the technicalities of the law that would prevail but the evidence of conduct which unambiguously proves that the parties wanted to continue the old custom.

23. The case of Siromani and Anr. v. Hemkumar and Ors. was the case in which the custom of Jethansi was propounded. That custom was that the eldest son received a larger share of his father's property at the time of partition. An unequal partition of ancestral or joint properties was from earlier times condemned. Hence, it was held that custom in a particular community of giving the eldest son greater share in the property of his father on partition had to be proved. In para 7 of that judgment whilst rejecting that the custom pleaded had been established, it is observed that:

28. The onus as well as the standard of proof of a custom of the kind is not different from the proof of other customs. The question of pleading and proof of a custom has been considered in the case of Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors. (relying upon the earlier decision relating to the proof of custom in the case of Ramalakshmi Ammal v. Sivanatha Perumal, (1872) 14 Moo India App, 570, at page 585 (Privy Council) thus :--

the plaintiffs to prove the existence of the custom and if they fail to do so they cannot succeed on the basis that the defendants did not succeed in proving that the custom did not exist.

29. It was observed that instances to prove the family custom, may not be as many or as frequent as in the case of customs pertaining to a territory or to the community or to the character of any estate. Consequently it can be seen that for proving the custom in the community more instances are required to be shown.

30. However, the general law with regard to the proof of custom following the Privy Council decision in the case of Ramalakshmi Ammal v. Sivanatha Perumal (supra) held in the case of Harihar Prasad v. Balmiki Prasad is thus :