Section 44 BSA: Opinion on relationship, when relevant

Bharatiya Sakshya Adhiniyam, 2023

Section 44 BSA at a Glance

Section 44 BSA deals with opinion on relationship, when relevant. It replaced Section 50 IEA on 1 July 2024.

Was IEA

Section 44 BSA Bare Act Text

44. Opinion on relationship, when relevant
When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, 1869 (4 of 1869), or in prosecution under sections 82 and 84 of the Bharatiya Nyaya Sanhita, 2023.
Illustrations
(a) The question is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

Source: Section 44, Bharatiya Sakshya Adhiniyam, 2023

Section 44 BSA in Simple Words

Section 44 of the Bharatiya Sakshya Adhiniyam, 2023 lets a court look at how people with close knowledge behave to help decide how one person is related to another. Under the Adhiniyam, an opinion that a relationship exists is a relevant fact (a fact a party can place before the court as evidence) when that opinion is shown through conduct.

Section 44 BSA applies when a court must form a view on a relationship, such as whether a couple was married or whether a person was a legitimate son. The opinion must be expressed by conduct, such as friends receiving and treating a couple as husband and wife, or family members always treating a person as a legitimate son. The person whose conduct shows that opinion must have special means of knowledge, either as a family member or otherwise.

A proviso in Section 44 BSA sets a limit when proving a marriage in certain cases. Opinion shown through conduct is not enough by itself to prove that a marriage took place in proceedings governed by the Divorce Act, 1869, or in a prosecution for sections 82 and 84 under the Bharatiya Nyaya Sanhita, 2023.

When Section 44 BSA Applies

The court has to form a view on how one person is related to another.
A person holds an opinion on the existence of that relationship and expresses that opinion through conduct, such as how family or friends treat the individuals.
The person whose conduct expresses the opinion is a family member or another person who has special means of knowledge about the relationship.

Example of Section 44 BSA

In September 2024, a court in Kochi has to form an opinion on whether Priya is the sister of Farhan in an inheritance dispute. A family elder who lived in the same household has special means of knowledge about the family and always treated Priya and Farhan as siblings during family events. A party places evidence of that conduct before the court. Under Section 44 BSA, the opinion of the family elder expressed through that conduct is a relevant fact to show the relationship between Priya and Farhan.

When Section 44 BSA Does Not Apply

Opinion expressed through conduct is not enough by itself to prove that a marriage took place in proceedings governed by the Divorce Act, 1869.
Opinion expressed through conduct is not enough by itself to prove that a marriage took place in a prosecution for sections 82 and 84 under the Bharatiya Nyaya Sanhita, 2023.

Section 44 BSA in the IEA (Previous Law)

Section 44 BSA replaces Section 50 IEA from the old criminal code.

Section 50 of the Indian Evidence Act, 1872 became Section 44 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. The proviso now cites the Divorce Act, 1869 and "sections 82 and 84" of the BNS, where the IEA cited "section 494, 495, 497 or 498" of the IPC. IPC Section 497 (adultery) has no BNS counterpart.

View IEA Section 50 →Compare IEA 50 vs BSA 44 →

FAQs on Section 44 BSA

What is Section 44 BSA?▼

Section 44 of the Bharatiya Sakshya Adhiniyam, 2023 makes an opinion on the relationship between one person and another a relevant fact when the opinion is expressed through conduct by someone with special means of knowledge. A proviso states that such opinion alone cannot prove a marriage in proceedings governed by the Divorce Act, 1869 or in a prosecution for sections 82 and 84 under the Bharatiya Nyaya Sanhita, 2023.

Can the conduct of family friends be relevant to show a marriage under Section 44 BSA?▼

Yes. Under Section 44 BSA, the person whose conduct expresses the opinion can be a family member or any other person with special means of knowledge, including friends who receive and treat a couple as husband and wife.

Is conduct alone enough to prove a marriage in every proceeding under Section 44 BSA?▼

No. Under the proviso to Section 44 BSA, opinion expressed through conduct is not enough by itself to prove a marriage in proceedings governed by the Divorce Act, 1869, or in a prosecution for sections 82 and 84 under the Bharatiya Nyaya Sanhita, 2023.

What is Section 44 BSA in IEA?▼

Section 50 IEA is the corresponding provision that applied before 1 July 2024, and the main rule on proving relationships through conduct is the same. The proviso was updated from the Indian Divorce Act, 1869 and sections 494, 495, 497, and 498 of the Indian Penal Code to the Divorce Act, 1869 and sections 82 and 84 of the Bharatiya Nyaya Sanhita, 2023.

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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 ·