Home > Bharatiya Sakshya Adhiniyam, 2023 > Section 42

Section 42 BSA 2023: Opinion as to Existence of General Custom or Right, When Relevant

Section 42 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the relevance of opinions when a Court has to decide whether a general custom or right exists. It forms part of the law governing opinion evidence and identifies the persons whose opinions may become relevant because they are likely to know whether the claimed custom or right exists.

Text of Section 42 of the Bharatiya Sakshya Adhiniyam, 2023

What Section 42 Means

Section 42 is an exception to the ordinary rule that a witness generally gives evidence about facts rather than personal conclusions. Where the existence of a general custom or right itself is in issue, the Court may consider the opinion of a person who, because of the person's position, experience, residence, occupation, association or other circumstances, would naturally be expected to know whether that custom or right exists.

The section does not make every opinion admissible. The connection between the person giving the opinion and the alleged custom or right must be such that the person would be likely to know about it if it existed. The Court will then assess the weight of that opinion along with the other evidence in the case.

Essential Requirements of Section 42

• The Court must be required to form an opinion about the existence of a general custom or right.
• The opinion must relate to the existence or non-existence of that custom or right.
• The person giving the opinion must be someone who would be likely to know of the custom or right if it existed.
• The expression "general custom or right" includes a custom or right shared by a considerable class of persons; it need not necessarily extend to the whole public.
• Relevance under Section 42 does not by itself make the opinion conclusive. Its evidentiary value remains for the Court to determine in the circumstances of the case.

Meaning of "General Custom or Right"

The statutory Explanation makes clear that a general custom or right may be common to a considerable class of persons. The provision therefore covers rights or customs associated with an identifiable community or substantial group. The statutory illustration gives the example of villagers claiming a common right to use the water of a particular well.

In practice, questions of this kind may arise in disputes concerning customary community rights, local usages, traditional access, common use of land or water, or other long-recognised practices. Whether the alleged custom or right is legally established will depend on the full evidence and the applicable substantive law.

Section 42 BSA and the Indian Evidence Act, 1872

The core rule and the familiar village-well illustration have been carried forward into Section 42 of the BSA. When researching older judgments decided under Section 48 of the Indian Evidence Act, the reasoning may therefore remain useful where the legal principle is materially the same, subject to the facts and any later law.

Related Provisions

Section 42 appears among the BSA provisions dealing with opinion evidence. It should be read in context with Section 41 on handwriting and signature, Section 43 on usages, tenets and related matters, Section 44 on relationship, and Section 45 on grounds of opinion.

Official Sources

For the authoritative statutory text and Act details, refer to the India Code page for the Bharatiya Sakshya Adhiniyam, 2023. The commencement notification appointing 1 July 2024 as the date on which the BSA came into force is available from the Ministry of Home Affairs.

Updated for the Bharatiya Sakshya Adhiniyam, 2023 and its commencement from 1 July 2024.