Fraud or Collusion in Obtaining a Judgment: Section 38 BSA and Section 44 Evidence Act
A judgment is not automatically beyond challenge merely because it has been produced in evidence. Indian evidence law permits proof that certain judgments, orders or decrees were obtained by fraud or collusion, or delivered by a court lacking competence.
Section 38 of the Bharatiya Sakshya Adhiniyam, 2023
The heading of Section 38 is 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, 35 or 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.
Official text: Bharatiya Sakshya Adhiniyam, 2023 (India Code, PDF).
Meaning and scope of Section 38
Section 38 is an evidentiary rule. When an opposing party relies on a judgment, order or decree falling within Sections 34, 35 or 36, a party may produce evidence that the decision was delivered by a court without legal competence or was procured by fraud or collusion. The provision does not itself prescribe a criminal offence or automatically set aside a decree.
Fraud in obtaining a judgment
Fraud involves deliberate deception or material dishonest conduct used to procure a judicial decision. Allegations should be supported by specific facts and reliable evidence; an adverse or allegedly incorrect judgment alone does not establish fraud.
Collusion between parties
Collusion may arise where parties act together improperly to procure a judicial determination, for example to prejudice another person's rights. Genuine settlement or consent does not, by itself, establish collusion.
Incompetency of the court
Incompetency concerns a lack of legal authority or jurisdiction to deliver the judgment in question. It is distinct from an ordinary error made by a court that otherwise has jurisdiction.
Which judgments are covered?
- Section 34 BSA: Previous judgments relevant to bar a second suit or trial.
- Section 35 BSA: Certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction.
- Section 36 BSA: Other judgments, orders or decrees concerning matters of a public nature relevant to the inquiry.
Section 37 BSA deals separately with judgments outside those categories. Section 38 specifically refers to judgments relevant under Sections 34, 35 or 36 and proved by the adverse party.
Illustrative situations
- Concealed material facts: A party relies on an earlier decree allegedly secured through deliberate concealment. The opposing party may seek to prove fraud where Section 38 applies.
- Collusive decree: Two parties allegedly arrange a sham proceeding to obtain a decree affecting another person's rights. Evidence of the alleged collusion may be relevant.
- Lack of jurisdiction: A judgment relied on in subsequent litigation is shown to have been delivered by a court lacking the requisite jurisdiction.
These are explanatory examples, not statutory illustrations. Whether a challenge succeeds depends on the evidence, procedural law and circumstances of the case.
Former Section 44 of the Indian Evidence Act, 1872
The former Section 44 stated:
Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42, 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.
The substance of the rule continues under Section 38 BSA, with updated section references. The repeal and savings provisions in Section 170 BSA must be considered for proceedings pending when the new law commenced.
Practical points when raising an objection
- Identify the specific judgment, order or decree produced by the adverse party.
- Explain how the judgment falls within Section 34, 35 or 36 BSA.
- Specify whether the challenge concerns fraud, collusion or lack of competence.
- Produce admissible supporting documents and other relevant evidence.
- Consider the appropriate procedural remedy; Section 38 alone does not replace appeal, review or other available proceedings.
Frequently asked questions
Can a judgment obtained by fraud be challenged?
Yes. Section 38 permits proof of fraud in the specified circumstances. The remedy and legal effect depend on the nature of the proceedings and applicable procedural law.
Does Section 38 apply to every judgment?
No. Its express scope concerns judgments, orders or decrees relevant under Sections 34, 35 or 36 BSA and proved by the adverse party.
What replaced Section 44 of the Indian Evidence Act?
Section 38 of the Bharatiya Sakshya Adhiniyam, 2023 is the corresponding current provision.
Official legal reference
Read the complete Bharatiya Sakshya Adhiniyam, 2023 on India Code for the authoritative wording and connected provisions.
Legal information only. The outcome of any particular dispute depends on its facts and applicable law.