Section 42 BSA: Opinion as to existence of general custom or right, when relevant

Bharatiya Sakshya Adhiniyam, 2023

Section 42 BSA at a Glance

Section 42 BSA deals with opinion as to existence of general custom or right, when relevant. It replaced Section 48 IEA on 1 July 2024.

Was IEA

Section 48 →

Section 42 BSA Bare Act Text

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.

Source: Section 42, Bharatiya Sakshya Adhiniyam, 2023

Section 42 BSA in Simple Words

Section 42 of the Bharatiya Sakshya Adhiniyam, 2023 lets a court consider the opinions of knowledgeable people when deciding whether a general custom or right exists. Under the Adhiniyam, the opinion of someone likely to know whether that general custom or right existed is relevant (something the court can take into account as evidence).

The Explanation clarifies what counts as a general custom or right. It includes customs or rights shared by a considerable class of persons (a large group or community of people, rather than an individual arrangement).

The Illustration gives an example from village life. When the villagers of a specific village have a right to draw water from a specific well, that collective claim counts as a general right under Section 42 BSA.

When Section 42 BSA Applies

  • A court needs to decide whether a general custom or right exists.
  • The custom or right is one shared by a considerable class of persons, such as villagers of a village sharing the use of a well.
  • A witness who would be in a position to know about the custom or right if it existed gives an opinion on whether it exists.

Example of Section 42 BSA

In 2025, a court in Jaipur has to decide whether a general right exists for potters living in a locality of the city to dig clay from a common ground. Anita is a resident potter in that locality who is likely to know whether that common right existed. In court, Anita gives an opinion confirming the existence of the right of the potters to dig clay from the common ground. Under Section 42 BSA, the opinion of Anita on the existence of that general right is relevant.

Section 42 BSA in the IEA (Previous Law)

Section 42 BSA replaces Section 48 IEA from the old criminal code.

Section 48 of the Indian Evidence Act, 1872 became Section 42 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024 without any change in wording. The heading now reads "Opinion as to existence of general custom or right, when relevant".

FAQs on Section 42 BSA

What is Section 42 BSA?▼

Section 42 of the Bharatiya Sakshya Adhiniyam, 2023 makes the opinions of people who are likely to know about a general custom or right relevant when a court must decide whether that custom or right exists. The Explanation states that a general custom or right includes one shared by any considerable class of persons.

Does a general right under Section 42 BSA have to apply to the entire country?▼

No. Under the Explanation and Illustration to Section 42 BSA, a general custom or right includes one shared by any considerable class of persons, such as the residents of a specific village having a right to draw water from a local well.

Who can give an opinion on a general custom or right under Section 42 BSA?▼

Any person who would be in a position to know about the existence of that general custom or right if it existed can give a relevant opinion.

What is Section 42 BSA in IEA?▼

Section 42 BSA corresponds to Section 48 IEA. It took effect on 1 July 2024 with the exact same wording in the section, Explanation, and Illustration, and only a minor update to the heading.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·