Section 42 Bharatiya Sakshya Adhiniyam, 2023: Opinion as to existence of general custom or right, when relevant

Section 42 of Bharatiya Sakshya Adhiniyam, 2023: Opinion as to existence of general custom or right, when relevant

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Illustrations

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Fact Sec 2(1)(d)

Legal Commentary & Landmark Judgments: Section 42

Section 42 admits the opinion of persons having special knowledge or acquaintance regarding the existence of any general custom or right, facilitating the proof of unwritten communal or mercantile usages.

General Custom or Right: Defined as a custom or right common to any considerable class of persons (e.g. village rights of way, riparian customs, indigenous trade usages).
Special Means of Knowledge: Witness must possess unique familiarity derived from community leadership, historical association, or mercantile trade practice.
Exemption from Documentary Proof: Enables oral proof of living customs where ancient written deeds do not exist.

Key Landmark Precedents:

T. Saraswathi Ammal v. Jagadambal (AIR 1953 SC 201): The Supreme Court held that custom modifying general personal law must be ancient, certain, reasonable, and proved by clear and unambiguous opinion and instances under Section 48 IEA (Section 42 BSA).
Gokal Chand v. Parvin Kumari (AIR 1952 SC 231): Reiterated that a custom must not be contrary to justice, equity, or statutory enactments, and witness opinions must cite living instances.

Courtroom Practice & Strategic Litigation Guidance:

To establish a customary easement or religious succession custom, examine village elders or trade association office-bearers, questioning them on specific dispute settlements and historical observances across decades.