Sections 12 and 13 of the Indian Evidence Act 1872: Damages, Rights and Customs

Sections 12 and 13 form part of Chapter II of the Indian Evidence Act, 1872 dealing with relevancy of facts. Section 12 concerns facts that assist a court in determining the amount of damages. Section 13 identifies transactions and particular instances that become relevant when the existence of a right or custom is in question.

Legal position covered by this article: This page explains the Indian Evidence Act, 1872 as applicable before the Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024. It is intended for understanding the pre-BSA evidence law and matters governed by that legal regime.

Section 12 - Facts Relevant for Determining Damages

Statutory rule In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded is relevant.

Section 12 is a rule of relevancy directed to the assessment of damages. Once damages are claimed in a suit, facts capable of assisting the court in fixing the proper amount may be proved, provided they genuinely bear on that assessment.

Meaning and scope of Section 12

The provision does not itself create a right to damages or prescribe a particular measure of compensation. Its function is evidentiary: it makes relevant those facts that help the court quantify damages in a case where damages are otherwise in issue.

The proceeding must be a suit in which damages are claimed.
The fact relied upon must help the court determine the amount that ought to be awarded.
The nature of useful evidence will depend on the cause of action and the legally applicable measure of damages.

Section 13 - Facts Relevant When a Right or Custom Is in Question

Section 13 applies where the existence of a right or custom itself is in question. It makes two broad classes of facts relevant: transactions concerning the right or custom, and particular instances showing how the claimed right or custom was treated or exercised.

Section 13(a) - Transactions concerning the right or custom A transaction is relevant when the right or custom in question was created, claimed, modified, recognized, asserted or denied by it, or when the transaction was inconsistent with the existence of that right or custom.

Section 13(b) - Particular instances Particular instances are relevant where the right or custom was claimed, recognized or exercised, or where its exercise was disputed, asserted or departed from.

What is a "right or custom" for Section 13?

For the purpose of this provision, the central issue is whether a claimed right or custom exists. Evidence of dealings, assertions, recognition, exercise, denial or departure may become relevant because such conduct or transactions can illuminate the existence and history of the alleged right or custom.

Illustration under Section 13

The statutory illustration concerns a disputed right to a fishery. Documents relating to the fishery, including an ancestral deed, a mortgage and a later inconsistent grant, as well as instances in which the right was exercised or stopped, are relevant because they bear upon the existence of the claimed right.

Difference Between Sections 12 and 13

Section 12 addresses the amount of damages and makes relevant facts that assist the court in quantifying them. Section 13 addresses the existence of a right or custom and makes relevant transactions and particular instances connected with that right or custom. Both provisions concern relevancy, but they operate on different questions before the court.

Practical Evidentiary Significance

These provisions should be read with the broader scheme of relevancy under the Indian Evidence Act, 1872. A party relying on Section 12 should connect the proposed fact with the assessment of damages. A party relying on Section 13 should show how the transaction or particular instance bears on the existence, recognition, assertion, denial, exercise or departure from the right or custom in dispute.

Pre-BSA Legal Context

The Indian Evidence Act, 1872 governed the law of evidence before the commencement of the Bharatiya Sakshya Adhiniyam, 2023. The Central Government appointed 1 July 2024 as the commencement date of the Bharatiya Sakshya Adhiniyam. This article deliberately states the law under Sections 12 and 13 of the 1872 Act for the pre-BSA legal position.