Bharatiya Sakshya Adhiniyam, 2023
Section 11
Facts relevant when right or custom is in question
Where the question is as to the existence of any right or custom, the following facts are relevant—
(a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from. Illustration. The question is, whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father, irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by A's neighbours, are relevant facts.
Why this exists
Rights and customs (like fishing rights, grazing rights, or family customs) are often not written down in one clear document. They build up over time through how people actually behaved and what transactions they entered into. This provision, carried forward from Section 13 of the Indian Evidence Act, 1872, lets courts piece together the history of a right or custom from documents and real conduct, since direct proof of an abstract 'right' is often impossible without looking at how it was exercised or contested over time.
How courts read it
Indian courts have long treated this provision (as Section 13 of the 1872 Act) as central to proving customary rights, especially in property, easement, and personal law (customary marriage, inheritance, or succession) disputes. Courts have held that isolated instances are not enough — the transactions and instances must show a consistent, longstanding pattern to establish a right or custom, not just one-off events. Judgments have also clarified that both assertions and denials of the right are relevant, since a custom's existence can be tested by whether it was ever seriously contested and how such disputes were resolved.
Common misconceptions
- Myth: Only a single official document can prove a right or custom exists.
Fact: Courts can also rely on real-life instances — like times the right was used, claimed, or disputed — not just formal documents. - Myth: If some evidence contradicts the claimed right, it must be excluded.
Fact: Even facts inconsistent with the right's existence, like a conflicting transaction, are relevant because they help the court understand the true legal picture.