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It would be desirable to refer to certain provisions of the Act and the Hindu Code which governed the field prior to the enactment of the Act, Section 3(a) of the Act defines 'custom' as follows:

"3. Definitions - In this Act, unless the context otherwise requires. -
(a) the expressions, 'custom' and 'usage' signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:
"Article 3-(1) A male Hindu, who has attained the age of discretion and is of sound mind, may adopt a son to himself provided he has no male issue in existence at the date of adoption.
(2) A Hindu who is competent to adopt may authorise either his (i) wife or (ii) widow (except in Mithila) to adopt a son to himself."

Therefore, prior to the enactment of the Act also adoption of a son during the lifetime of a male issue was prohibited and the position continues to be so after the enactment of the Act. Where a son became an outcast or renounced Hindu religion, his father became entitled to adopt another. The position has not changed after enactment of Caste Disabilities Removal Act (XXI of 1850), as the outcast son does not retain the religious capacity to perform the obsequies rites. In case parties are governed by Mitakshara Law, additionally adoption can be made if the natural son is a congenital lunatic or an idiot. The question, therefore, is whether by custom, the prohibition could be overcome. Relevant provisions, therefore, is whether by custom as defined in the Hindu Code are as follows:

'"Custom defined : - Custom is an established practice at variance with the general law.
Nature of custom - A custom varying the general law may be a general, local, tribal or family custom.
Explanation 1. - A general custom includes a custom common to any considerable class of persons.
Explanation 2. - A custom which is applicable to a locality, tribe, sect or a family called a special custom.
Custom cannot override express law. (1) Custom has the effect of modifying the general personal law, but it does not override the statute law, unless it is expressly saved by it.