Section 42 BSA: Opinion as to Existence of General Custom or Right

Section 42 BSA explains when opinions of persons likely to know about a general custom or right are relevant in court.

Introduction

Section 42 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the relevance of opinions concerning the existence of a general custom or right. When a court must determine whether a customary practice or a general right exists, it may consider the opinions of persons who would naturally be likely to know about it if it existed.

The provision is important in disputes involving customary rights, village resources, community practices, traditional access routes and other rights shared by a considerable class of persons.

For example, if villagers claim that they have a customary right to draw water from a particular well, the opinions of long-term residents who are familiar with the practice may be relevant to the court’s inquiry.

Section 42 BSA corresponds to Section 48 of the Indian Evidence Act, 1872.

Bare Act: Section 42 of the Bharatiya Sakshya Adhiniyam, 2023

42. Opinion as to existence of general custom or right, when relevant.—

When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.

Explanation.— The expression “general custom or right” includes customs or rights common to any considerable class of persons.

Illustration. The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.

Meaning and Explanation of Section 42 BSA

Section 42 recognises that persons familiar with a community’s established practices or shared rights may provide relevant opinions about whether a particular custom or right exists.

The provision has three essential components:

1. A question concerning a general custom or right: The court must determine whether a particular customary practice or right exists.
2. A person likely to know about it: The person’s position, experience or connection with the relevant community or locality should make them likely to know about the custom or right.
3. An opinion about its existence: The person’s opinion becomes relevant to the court’s inquiry.

The section does not automatically establish the existence of a custom merely because a witness claims that it exists. The court must evaluate the witness’s knowledge, the grounds for the opinion and the other evidence presented.

Essential Elements of Section 42 BSA

1. The issue must concern a general custom or right

Section 42 applies when the court must form an opinion about the existence of a general custom or right.

A custom is an established practice followed by a community or group. A right may include a recognised entitlement shared by a group, such as a customary right to use a common water source or pathway.

The provision is not limited to village resources. Its application depends on the nature of the custom or right and the class of persons to whom it relates.

2. The custom or right must be general in character

The Explanation clarifies that a general custom or right includes customs or rights common to any considerable class of persons.

This means the provision is not confined to practices followed by every member of an entire population. It can cover a substantial community, group or class that shares the relevant custom or right.

For example, a customary right enjoyed by the residents of a particular village may qualify even though people living elsewhere do not enjoy the same right.

3. The person giving the opinion must be likely to know about the custom or right

The person’s opinion is relevant because they would be likely to know about the custom or right if it existed.

Relevant circumstances may include long residence in the locality, participation in community affairs, familiarity with traditional practices or experience dealing with the right in question.

However, a person does not qualify merely because they belong to the community. The court must consider whether the person’s circumstances provide a reasonable basis for the claimed knowledge.

4. The opinion must relate to the existence of the custom or right

The opinion should concern whether the particular custom or right exists. General statements about a community’s traditions, without a meaningful connection to the disputed custom, may have limited evidentiary value.

5. The court must assess the grounds supporting the opinion

Section 42 makes the opinion relevant, but the court must still evaluate its reliability.

The court may examine whether the witness has personally observed the practice, knows of its historical exercise, can identify the people who traditionally enjoyed the right and can explain the basis for the opinion.

The court may also consider documentary records, earlier instances of the custom being exercised and other admissible evidence.

Also Read: Section 11 of Bharatiya Sakshya Adhiniyam, 2023: Facts Relevant When Right or Custom Is in Question

What Is a General Custom?

A general custom is an established practice followed by a community or a considerable class of persons. Where the law recognises such a practice as having legal force, it may affect the rights and obligations of the persons concerned.

Examples may include:

• A customary right of villagers to use a particular well.
• A community’s established practice concerning access to a shared pathway.
• A customary right enjoyed by a group to use a common resource.
• A local customary practice relevant to a dispute concerning community rights.

Not every repeated practice becomes a legally enforceable custom. The party relying on a custom must establish its existence and satisfy the applicable legal requirements.

Courts generally examine whether the alleged custom is sufficiently established, certain and consistent, and whether it is legally recognised. A practice cannot override a mandatory statutory rule merely because it has been followed for a long time.

What Is a General Right?

A general right is an entitlement shared by a considerable class of persons rather than one confined to a purely individual claim.

The statutory illustration concerns the right of villagers to use the water of a particular well.

For example, if residents of a village claim that they have traditionally used a particular well for domestic purposes, the court may need to determine whether a shared customary right exists. Opinions of persons likely to know about the practice may be relevant under Section 42.

The precise nature and legal enforceability of the claimed right depend on the evidence and applicable law.

Explanation of the Statutory Illustration

Facts

The villagers of a particular village claim the right to use water from a particular well.

The existence of that right becomes a matter that the court must determine.

Application

Persons who are likely to know about the right may provide opinions concerning its existence. These may include long-term residents who are familiar with the traditional use of the well and the circumstances in which villagers have exercised the claimed right.

Their opinions may be relevant because they are likely to know whether the right exists.

Legal principle

A right shared by the villagers of a particular village may qualify as a general right under Section 42.

The illustration does not mean that every claimed right to use a well is automatically established. The court must still assess the available evidence and determine whether the claimed right exists in law.

How Is a Custom or Right Proved in Court?

Section 42 concerns the relevance of opinions. It should not be confused with the broader question of how a custom or right must ultimately be proved.

A party relying on a customary right may need to establish the following, depending on the nature of the claim and the applicable law:

1. Evidence from persons familiar with the custom

Witnesses who have longstanding knowledge of the locality or community may explain the practice and the circumstances in which it has been followed.

Section 42 makes relevant the opinions of persons likely to know about the existence of the custom or right.

2. Evidence of actual exercise

Evidence that the claimed right has been exercised over time may support the assertion that it exists.

For example, records or testimony showing that villagers have regularly used a particular pathway or well may be relevant, subject to the applicable rules of evidence.

3. Documentary and public records

Revenue records, historical documents, settlement records or other relevant materials may support or contradict the claimed custom.

The evidentiary value of such records depends on their nature, purpose, authenticity and the applicable law.

4. Consistency and legal recognition

A party relying on a custom must establish that it satisfies the applicable legal requirements. Depending on the context, courts may examine its duration, certainty, consistency, reasonableness and compatibility with law.

The exact requirements can differ according to the type of custom and the legal framework governing the dispute.

Important Judgments Relating to Section 42 BSA

The following decisions interpreted Section 48 of the former Indian Evidence Act, 1872, or explain the legal requirements for proving customary rights. They are relevant to understanding Section 42 BSA but are not direct interpretations of the new provision.

1. Thakur Gokalchand v. Parvin Kumari (1952)

Citation: AIR 1952 SC 231; 1952 SCR 825

Also Read: Section 14 of Bharatiya Sakshya Adhiniyam, 2023: Existence of Course of Business When Relevant

Court: Supreme Court of India

The Supreme Court explained the principles governing the proof of customary law. It held that a party relying on a custom must establish that the custom applies to the persons concerned and that the alleged custom actually exists.

The Court explained that a custom must derive legal force from established usage and must be demonstrated through sufficiently consistent practice. It also recognised that general evidence from members of a tribe or family who would naturally know about the custom may be used to prove it.

Public records of custom, such as a Riwaj-i-am or a Manual of Customary Law, may support such evidence, although their contents are not automatically conclusive.

Legal principle: A customary right must be established through appropriate evidence. Opinions and general evidence from persons naturally familiar with the custom may be important, but the court must assess the reliability and legal sufficiency of the material.

This judgment is particularly relevant to understanding why Section 42 makes the opinions of persons likely to know about a custom relevant.

2. Daniraiji Vrajlalji v. Vahuji Maharaj Chandraprabha (1970)

Court: Gujarat High Court

This decision considered Section 48 of the former Indian Evidence Act and the relevance of opinions concerning the existence of a custom.

The court explained that the person giving the opinion must be someone likely to know about the custom if it exists. It also emphasised the importance of examining the grounds on which the opinion is based, with reference to the rule concerning grounds of opinion under the former Section 51 of the Evidence Act.

Legal principle: A witness’s opinion about a custom is not accepted merely because the witness expresses it. The court must examine whether the person is likely to know about the custom and assess the grounds supporting the opinion.

This decision illustrates the importance of evaluating the witness’s actual familiarity with the custom rather than treating the opinion as conclusive.

3. Mst. Jeo v. Ujagar Singh (1952)

Court: Supreme Court of India

The decision discussed the principles governing customary law and referred to the principles explained in Thakur Gokalchand v. Parvin Kumari.

The case is relevant to the evidentiary requirements for establishing a custom, including the use of general evidence from members of a community who are naturally familiar with the custom.

Legal principle: A claimed custom must be established through evidence that demonstrates its existence and application to the persons concerned. General evidence from persons familiar with the practice may assist the court in determining whether the custom exists.

These cases interpret the former Evidence Act or related principles. Their relevance to Section 42 BSA lies in the substantially corresponding statutory rule.

Difference Between Sections 42 and 43 BSA

Basis	Section 42 BSA	Section 43 BSA
Main subject	Opinion as to existence of a general custom or right	Opinion concerning usages, tenets, institutions and meanings of terms
Persons whose opinions are relevant	Persons likely to know about the existence of the custom or right	Persons having special means of knowledge about the relevant subject
Typical example	Villagers’ customary right to use a particular well	Knowledge of the practices or tenets of a religious or social institution
Purpose	Helps determine whether a general custom or right exists	Helps determine specialised usages, tenets, institutional arrangements or local meanings

Section 42 concerns opinions about the existence of a general custom or right. Section 43 deals with different categories of opinions, including usages and tenets of a body of persons or family, the constitution and government of religious or charitable foundations, and the meaning of words or terms used in particular districts or by particular classes of people.

Section 42 BSA and Section 48 of the Indian Evidence Act, 1872

Basis	Section 42 BSA	Section 48, Indian Evidence Act
Subject	Opinion as to existence of general custom or right	Opinion as to existence of right or custom
Relevant opinions	Opinions of persons likely to know about the custom or right	Same principle
General custom or right	Includes customs or rights common to any considerable class of persons	Same explanation
Illustration	Villagers’ right to use water from a particular well	Same illustration
Current status	In force from 1 July 2024	Repealed, subject to applicable savings provisions

Section 42 BSA substantially carries forward Section 48 of the Indian Evidence Act, 1872, with the updated statutory heading and wording.

Related Legal Provisions

• Section 11 BSA: Facts relevant when a right or custom is in question.
• Section 43 BSA: Opinions as to usages, tenets and related matters.
• Section 44 BSA: Opinion on relationship, when relevant.
• Section 45 BSA: Grounds of opinion, when relevant.
• Section 48 of the former Indian Evidence Act, 1872: The corresponding earlier provision.

Section 11 BSA is particularly relevant because it addresses facts that are relevant when the existence of a right or custom is in question, while Section 42 focuses on opinions of persons likely to know about the custom or right.

Important Points for Law Students and Judiciary Exams

• Section 42 BSA corresponds to Section 48 of the Indian Evidence Act, 1872.
• It deals with opinions concerning the existence of a general custom or right.
• The opinion of a person likely to know about the custom or right is relevant.
• The Explanation includes customs or rights common to any considerable class of persons.
• The statutory illustration concerns villagers’ right to use water from a particular well.
• The section concerns relevance of opinion; it does not automatically establish the custom.
• The court must evaluate the witness’s familiarity with the custom and the grounds for the opinion.
• Thakur Gokalchand v. Parvin Kumari is an important authority on proving customs under Indian law.
• Section 42 should be distinguished from Section 43, which concerns usages, tenets and other specialised matters.

Frequently Asked Questions (FAQs)

1. What is Section 42 of the BSA?

Section 42 of the Bharatiya Sakshya Adhiniyam, 2023 makes relevant the opinions of persons likely to know about the existence of a general custom or right when the court must determine whether that custom or right exists.

2. Which section of the Indian Evidence Act corresponds to Section 42 BSA?

Section 42 BSA corresponds to Section 48 of the Indian Evidence Act, 1872.

3. What is a general custom or right?

It includes a custom or right common to a considerable class of persons. The statutory illustration is the right of villagers of a particular village to use water from a particular well.

4. Who can give an opinion under Section 42 BSA?

A person who would be likely to know about the custom or right if it existed may provide a relevant opinion. The court must examine the person’s connection with the community, experience and grounds for the opinion.

5. Does Section 42 automatically prove a customary right?

No. The provision makes qualifying opinions relevant, but the court must still determine whether the custom or right has been established through sufficient evidence and is legally recognised.

6. What is the difference between Sections 42 and 43 BSA?

Section 42 concerns opinions about the existence of a general custom or right. Section 43 concerns opinions about usages and tenets of a body of persons or family, the constitution and government of religious or charitable foundations, and meanings of words or terms used in particular districts or by particular classes of people.

Conclusion

Section 42 of the Bharatiya Sakshya Adhiniyam, 2023 allows courts to consider opinions from persons likely to know about a general custom or right. It is particularly useful in disputes involving customary practices and shared community entitlements. However, the opinion itself does not automatically establish the claimed right. The court must evaluate the witness’s familiarity with the custom, the grounds supporting the opinion and the other evidence available. For examinations, remember the core principle: opinions of persons likely to know about a general custom or right are relevant when the court must determine whether it exists.