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13. In Pushpavathi Vijayaram v. P. Visweswar [AIR 1964 SC 118], the Apex Court stated that the existence of a custom must be demonstrated through clear and unambiguous evidence so that the Court may be assured not only of its actual existence but also that it possesses the necessary conditions of antiquity and certainty. It was held that:

Mat.Appeal No.630/2018 & R.P.(FC)No.126/2020 2025:KER:72048 "The law in regard to the proof of customs is not in doubt. As observed by the Privy Council in the case of Ramalakshmi Ammal v. Sivanatha Perumal Sethurayar (14 Moo IA 585.), "it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.""

14. The Supreme Court in Salekh Chand v. Satya Gupta [(2008) 13 SCC 119], while dealing with the claim of adoption under the Hindu Adoptions and Maintenance Act, 1956, held as under: (SCC pp. 130-31, paras 21-24):

"Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them; but the decision would not in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the notice of the courts, the courts, may hold that the custom was introduced into law without the necessity of proof in each individual case."

Mat.Appeal No.630/2018 & R.P.(FC)No.126/2020 2025:KER:72048

15. This court in Kandathy and Ors. v. Kuttymammi [1970 KLT 799] held that:

"7. All systems of law, the Hindu law and English Common law included recognise the binding force of customary law. But what are the attributes of a custom before it can be exalted into a rule of law? Antiquity is essential for a custom to be obligatory. "But antiquity", as Allen, in an illuminating passage, observes, "is a relative term, and if it were applied as a test without qualification, every custom would necessitate indefinite archaeological research." The arbitrary rule about the age of a custom having to be immemorial, "time whereof the memory of man runneth not to the contrary" does not apply to India. The custom to be valid must be uniform and continuous, so that the conviction of the members of the community that they are acting in accordance with law, when they obey the custom, should be clearly shown. No hard and fast rule as to the period during which the custom has prevailed can be insisted upon. If it has existed for a long time long enough in the circumstances of the case there is a presumption of antiquity. Although the onus of proof of antiquity is upon the person who sets up the custom, the degree of proof depends on many factors. Take this case as an illustration. Evidence of acts proving the custom, decisions of Panchayats and of Courts, upholding such acts, statements of competent persons of their belief that such acts are legal and valid are the usual materials on which a Court acts, but if we are dealing with a rule of custom, relating to inheritance and succession to members of a community who, until recently, did not have Mat.Appeal No.630/2018 & R.P.(FC)No.126/2020 2025:KER:72048 properties to inherit or to succeed to, proof of custom may be hard to compile. In those cases "The rules of evidence are liberal in matters of such antiquity, but they remain rules of evidence and, with every willingness to admit all such inferences as can properly be drawn, we must distinguish clearly between reasonable inference and plausible conjecture. The party setting up the custom must have the benefit of all legal presumptions, but he can take nothing by any resort to mere surmise, however ingenious, and his proof, though scanty, must still be 'rational and solid'. Again, when the existence of a custom for some years has been proved by direst evidence, it can be shown to be immemorial by hearsay evidence and such evidence is allowable as an exception to the general rule (See AIR. 1925 P.C. 213). "

"ഇങ്ങനന വത്തിവഥാഹനും നടതഥാറുണണ, ബനനും കവർനപടുതഥാറുമുണണ. അങ്ങനന ബനനും കവർനപ്പെടുതത്തിയവരുനട കപരുകൾ ഓർമയത്തില."

In cross-examination he conceded that he had not witnessed any such ceremonies other than the one in respect of Balan and the 1st respondent.

24. As noted earlier, the respondent failed to produce evidence of even a single instance of divorce in her community following the alleged custom. PW1 was only 12 years old at the time of the alleged practice. PW9 has no claim that he is a community leader. Neither of them could cite any instance of customary divorce other than the one in question. Their testimony falls short of the requirements of Sections 32(4) and 48 of the Evidence Act, since they cannot be said to be persons likely to know of the existence of such a custom, nor did they state anything reflecting the opinions or statements of persons falling within the scope of Section Mat.Appeal No.630/2018 & R.P.(FC)No.126/2020 2025:KER:72048 32(4). In the absence of clear and reliable proof regarding antiquity, continuity, and reasonable certainty of the custom claimed, the alleged ceremony, if at all held, cannot be accepted as sufficient proof of custom within the meaning of Section 29(2) of the Act.