Bharatiya Sakshya Adhiniyam, 2023
Section 42
Opinion as to existence of general custom or right, when relevant
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. Illustration. 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.
Why this exists
Customs and community rights often aren't written down anywhere—they exist through long-standing practice and shared community memory. Proving them with documents is usually impossible, so the law allows courts to rely on the collective opinion and knowledge of people connected to the community, such as elders, neighbors, or long-time residents, who would naturally know if such a custom or right existed. This provision continues a rule from the earlier Indian Evidence Act, 1872, reflecting the practical reality that customary rights are proved through reputation and common knowledge rather than formal records.
How courts read it
Indian courts have historically treated evidence of general reputation and the opinions of knowledgeable community members as important proof of customs like rights to grazing land, temple worship practices, or shared water sources, especially where no written record exists. Courts have generally required that the witnesses giving such opinions have genuine, longstanding connection to the community or area so their opinion carries real weight, rather than being mere hearsay or guesswork.
Common misconceptions
- Myth: Only official documents or government records can prove a customary right.
Fact: Courts can also rely on the opinions of people likely to know about a long-standing custom, especially when no written record exists. - Myth: This section lets anyone's personal opinion decide a legal case.
Fact: The opinion is only relevant if it comes from someone who would likely know about the custom or right due to their connection to the community or area.