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Section 38 BSA 2023: Fraud or Collusion in Obtaining Judgment, or Incompetency of Court, May Be Proved

Section 38 of the Bharatiya Sakshya Adhiniyam, 2023 permits a party to challenge the evidentiary effect of certain judgments, orders or decrees by proving that the Court which delivered them was not competent, or that the decision was obtained by fraud or collusion.

Current law: The Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023) came into force on July 1, 2024. Section 38 forms part of the provisions dealing with judgments of Courts when relevant.

Text of Section 38 of the Bharatiya Sakshya Adhiniyam, 2023

38. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 34, section 35 or section 36, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Meaning and Scope of Section 38

Section 38 provides a statutory method for questioning the reliability or binding evidentiary effect of a judgment, order or decree relied on by the opposite party. The provision is attracted where the earlier decision is relevant under Sections 34, 35 or 36 of the BSA and is proved by the adverse party.

  • Incompetency of the Court: A party may show that the Court which delivered the earlier judgment, order or decree was not legally competent to do so.
  • Fraud: A party may prove that the earlier judgment, order or decree was procured by fraudulent means.
  • Collusion: A party may show that the earlier decision resulted from collusion between persons concerned in the prior proceeding.
  • Relevant prior decision: The provision specifically refers to judgments, orders or decrees relevant under Sections 34, 35 or 36.
  • Adverse party must rely on it: The statutory wording applies where the judgment, order or decree has been proved by the adverse party.

How Section 38 Works with Sections 34 to 36

Section 34 deals with previous judgments relevant to bar a second suit or trial. Section 35 concerns the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction. Section 36 addresses the relevancy and effect of other judgments, orders or decrees in specified circumstances. Section 38 acts as a safeguard by permitting proof that such a decision came from an incompetent Court or was obtained through fraud or collusion.

Practical Effect

When an opposing party relies on a prior judgment, order or decree covered by Sections 34, 35 or 36, the other party is not prevented from showing facts that bring the case within Section 38. Whether the required incompetency, fraud or collusion is established will depend on the evidence and the facts of the proceeding.

Equivalent Provision under the Indian Evidence Act, 1872

Section 38 of the Bharatiya Sakshya Adhiniyam, 2023 substantially carries forward the subject previously dealt with by Section 44 of the Indian Evidence Act, 1872. For proceedings governed by the current evidence law, the BSA should be cited and applied subject to its commencement and saving provisions.

Related BSA Sections

Section 31 - Statements as to facts of public nature Section 32 - Statements as to law in law books Section 33 - Evidence when statement forms part of a larger record Section 34 - Previous judgments barring second suit or trial Section 35 - Certain judgments in special jurisdictions Section 36 - Relevancy and effect of other judgments Section 37 - Other judgments when relevant Section 39 - Opinions of experts Section 40 - Facts bearing upon expert opinions

Last reviewed: September 12, 2026. This page is intended for general legal information and should be read with the official text of the Bharatiya Sakshya Adhiniyam, 2023 and applicable judicial decisions.