Nobody Proved the Custom. That Decided the Case.

What happened

The dispute was over succession to land, and it turned on a single question of customary law: whether an uncle-in-law can adopt his niece’s husband as his ghardamad within the prevalent customary law.

The High Court framed that as a substantial question of law. It then did not answer it, on the footing that there were concurrent findings below. It went on to observe that since it was not established that there is a bar against adoption by an uncle-in-law, no adverse inference could be drawn.

That reasoning is what the Supreme Court took apart.

The burden runs the other way

The High Court had effectively required the party denying the custom to establish a prohibition. The Court held the burden sits on the party asserting it.

Those who allege a custom must be the one to prove it.

And the burden is a double one. Whoever alleges a custom must prove the custom, and must also prove that he is in fact governed by that custom. Establishing that a practice exists somewhere does not establish that it applies to these parties and this land.

So merely observing that the opposite of what was alleged had not been clearly stated could not do the work. That, the Court said, is not the appropriate answer to a substantial question of law within the meaning of Section 100 CPC.

A framed question has to be answered

There is a procedural holding here worth separating out. Ordinarily, once a substantial question is framed, the parties have to be heard and the issue decided accordingly.

The existence of concurrent findings below is a reason to be slow to interfere with facts. It is not a reason to leave a framed question of law undecided. Framing and then declining to answer left the appeal in an unsatisfactory position, which is part of why the matter travelled further.

What the law of this community actually provides

On the facts, the customs as alleged — apart from the ghardamad’s eligibility to take the property of his father-in-law — could not be proved.

The Court’s conclusion rested on well-established and acknowledged sources of the law as it prevails in this community. Those sources postulate that in the absence of a ghardamad, or of any other male heir directly related to the landowner — that is, the male members of the family — the nearest male agnate has the right in the property.

Since the adoption said to create a ghardamad was never proved, that default rule governed, and the judgments of the courts below were set aside.

Who argued it

Frequently asked

Who has to prove a custom in an Indian court?

The party alleging it. The Supreme Court held that those who allege a custom must be the ones to prove it, and must also prove that they are in fact governed by that custom.

Is it enough that nobody proved the custom was prohibited?

No. The High Court had observed that since no bar against adoption by an uncle-in-law was established, no adverse inference could be drawn. The Supreme Court held that merely observing that the opposite of what was alleged is not clearly stated cannot be sufficient.

Can an uncle-in-law adopt his niece's husband as a ghardamad?

It was not established that he can. The Court held it is nowhere established that an uncle-in-law can adopt his niece's husband as his ghardamad within the prevalent customary law, and the customs as alleged could not be proved.

Must a High Court answer a substantial question of law once it frames one?

Ordinarily yes. The Court held that once a substantial question is framed the parties have to be heard and the issue decided accordingly, and that concurrent findings below were not a reason to leave it unanswered.

Who succeeds if there is no ghardamad?

On the sources the Court relied on, in the absence of a ghardamad or any other male heir directly related to the landowner, the nearest male agnate has the right in the property.

If your case rests on a custom

1. Plead the custom with precision — what it is, how long it has been observed, and among whom. A general assertion will not survive the burden the Court describes.
2. Prove separately that your client is governed by it. Establishing that the custom exists somewhere in the community is only half of what is required.
3. Lead evidence from acknowledged sources of the customary law, which is what the Court relied on here, rather than resting on oral assertion alone.
4. Never argue that the custom stands because no bar against it was shown. That reasoning was expressly rejected.
5. In second appeal, if a substantial question is framed, press for it to be answered — concurrent findings do not excuse leaving it open.

Source. Supreme Court of India, 2026 INSC 672, [2026] 8 S.C.R. 48, Civil Appeal No. 8780 of 2026, decided 9 July 2026 by Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh. This explainer is written from the judgment text as reported.

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