Sections 48, 49 and 50 of Indian Evidence Act, 1872: Opinion on Custom, Usage and Relationship

Sections 48, 49 and 50 formed part of the law relating to relevancy of opinions under the Indian Evidence Act, 1872. This article explains the provisions as they stood immediately before the Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024.

Temporal scope: The Indian Evidence Act, 1872 was the governing central evidence law before 1 July 2024. This page intentionally explains that pre-BSA legal position. For proceedings governed by the new law, refer to the Bharatiya Sakshya Adhiniyam, 2023.

Section 48 - Opinion as to existence of right or custom, 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 that 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 the section.

Meaning and scope of Section 48

Section 48 made a knowledgeable person's opinion relevant when the Court had to decide whether a general custom or right existed. The witness was required to be a person who would be likely to know of the custom or right if it existed. The provision concerned relevancy of the opinion; the Court still had to assess its evidentiary weight with the other evidence in the case.

Section 49 - Opinion as to usages, tenets, etc., when relevant

When the Court has to form an opinion as to the usages and tenets of any body of men or family; the constitution and government of any religious or charitable foundation; or the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge on the subject are relevant facts.

Meaning and scope of Section 49

The section covered specialised social, familial, religious, charitable and linguistic knowledge. Its essential requirement was that the person giving the opinion had "special means of knowledge" concerning the matter on which the Court required assistance.

Section 50 - Opinion on relationship, when relevant

When the Court has to form an opinion as to the relationship of one person to another, an opinion expressed by conduct as to the existence of that relationship, given by a person who as a member of the family or otherwise has special means of knowledge on the subject, is a relevant fact.

Statutory proviso: Such opinion was not by itself sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code, 1860.

What "opinion expressed by conduct" means

Section 50 did not make every assertion about a family relationship relevant. The opinion contemplated by the section was one manifested through conduct by a person having special means of knowledge. The statutory illustrations treated social recognition of two persons as husband and wife, and consistent treatment of a person as a legitimate son by family members, as relevant examples.

Illustration (a): Where the question is whether A and B were married, the fact that their friends usually received and treated them as husband and wife is relevant.

Illustration (b): Where the question is whether A was the legitimate son of B, the fact that members of the family always treated A as such is relevant.

Note on Section 497 IPC: Section 50's statutory proviso continued to contain a reference to Section 497 IPC in the text of the Evidence Act. However, the Supreme Court in Joseph Shine v. Union of India (2018) declared Section 497 IPC unconstitutional. The reference is therefore reproduced here only to explain the pre-repeal statutory text.

Difference between Sections 48, 49 and 50

Position before the Bharatiya Sakshya Adhiniyam, 2023

Up to 30 June 2024, Sections 48 to 50 of the Indian Evidence Act, 1872 formed part of the statutory framework governing relevant opinion evidence. The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024 and repealed the Indian Evidence Act, 1872, subject to its saving provision. This article is limited to the legal position immediately before that change.

This page is for general legal information and reproduces the substance of the pre-1 July 2024 statutory provisions. Readers should verify the law applicable to the date and nature of their proceeding.