Following are the essential elements of a custom:
A custom must be in existence from time immemorial. English law fixed the year 1189 to test the antiquity of a custom. A custom must be in existence prior to 1189, only then it can prove the consideration of antiquary. Under Hindu law also immemorial customs are transcendental law. However India law does not fix any particular year to test the antiquity of custom.
A custom must be practiced without interruption; continuity is an essential feature of the custom. Continuity does not mean that it should be in operation all the time. It means that there should be a continuous availability of the terms of the customs to deal with particular rule of conduct with which it deals. Presence 6f custom if fact and its enforceability both are essential to prove antiquity. If a custom becomes legally unenforceable even for a short time it would not the recognized as a valid’ custom.
3. Peaceable enjoyment:
It is essential that custom must have been enjoyed peacefully by the concerned people.
4. Matter of right:
Custom must have been enjoyed as a matter of right. This right should be enforceable. Thus custom must result in creating obligatory force at the one hand and related claim on the other hand. If a practice is observed as a courtesy and not as a matter of right then it can be termed a “custom” in legal sense.
Custom must be certain. If the nature of the custom is not certain then it loses its validity. Custom originate from general consent, it is hard to determine existence of consent, on something which is not certain.
A custom must not be in conflict with other prevailing customs. The customs must be in consistency with other custom. Difference or inconsistency in custom will amount to different rule of conduct for a given situation; it will negotiate the general consent.
7. Conformity with statute law:
Custom should be conformity with statute law. A legislative enactment can abrogate a custom. In case of inconsistency between custom and statutory provision, former must give way to the latter. Thus, custom yield legislative enactment.