Opinion as to Existence of a Right or Custom: Section 48 Evidence Act and BSA Section 43
When a court must determine whether a general custom or right exists, the opinion of a person likely to know about it may be relevant evidence. The present provision is Section 43 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA); its predecessor was Section 48 of the Indian Evidence Act, 1872.
What does Section 43 of the BSA provide?
Section 43 provides that, when the court must form an opinion about the existence of a general custom or right, the opinions of persons who would be likely to know of its existence, if it existed, are relevant. Its explanation includes within a general custom or right a custom or right common to any considerable class of persons.
The provision is concerned with relevance: it permits the court to consider informed opinion. It does not automatically establish that the claimed right exists or is legally enforceable.
Former Section 48 of the Indian Evidence Act, 1872
Statutory rule: 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 such 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.
This historical wording is retained for readers consulting older judgments and pleadings. For the current statutory framework, refer to BSA Section 43.
Statutory illustration: village well
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 this section.
For example, villagers who have long used a communal well, local residents familiar with the practice, or persons responsible for maintaining the well may be able to speak to whether the asserted right has existed. The court must still evaluate their knowledge, reliability and any contrary evidence.
Whose opinion is relevant?
- Knowledge of the custom: The person must be someone who would likely know of the right or custom if it existed, such as a long-standing community member familiar with its exercise.
- General or collective character: The right or custom should concern a considerable class of persons, rather than merely an isolated private arrangement.
- Connection to the disputed issue: The opinion must help determine whether the claimed custom or right exists.
- Judicial assessment: The court may consider the person's opportunity to observe, consistency, possible interest in the dispute and supporting records.
How is a customary right proved in practice?
Evidence may include testimony from knowledgeable community members, historical records, village or local-authority records, maps, past conduct and documents showing longstanding exercise of the claimed right. The weight of each item depends on the facts and applicable substantive law.
Courts may also examine whether a claimed custom is certain, consistently observed, reasonable and compatible with governing law. An opinion admissible under Section 43 is only one part of that assessment; it does not displace requirements under property law, personal law or other applicable legislation.
General custom versus individual private claim
| General custom or right | Individual claim |
|---|---|
| A village community claims customary use of a shared well. | One individual claims permission to draw water under a personal agreement. |
| Opinions of persons likely to know the community practice may be relevant under Section 43. | The court may need evidence of the particular agreement or other legal basis. |
Related evidence provisions
Section 47 of the former Evidence Act concerns opinions about handwriting, while Section 49 addresses opinions about usages, tenets and related matters. These rules deal with different types of opinion evidence and should not be treated as interchangeable.
Official legislation and further reading
- Bharatiya Sakshya Adhiniyam, 2023 - official India Code text (PDF), especially Sections 43 and 170.
- India Code - official central legislation database for the Indian Evidence Act, 1872 and other statutes.
- Evidence Act overview and related provisions.
Frequently asked questions
Is an elder's opinion enough to prove a customary right?
Not necessarily. The opinion may be relevant if the person is likely to know about the custom, but the court evaluates its credibility alongside other available evidence and the legal requirements for establishing the right.
Does Section 43 apply only to village customs?
No. The village-well example is illustrative. The provision extends to a general custom or right shared by a considerable class of persons where the statutory conditions are met.
Does the Indian Evidence Act still govern every case?
No. The BSA is the current central evidence statute from 1 July 2024, subject to its statutory savings for specified pending proceedings.