Rights and Customs under Indian Evidence Act
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The Indian Evidence Act, 1872 provides references regarding admissibility and relevance of facts and opinions when a question pertaining to the existence of a right or custom is being considered by the Court. Rights and customs are discussed under the Act in three different provisions, viz., Sec 13, Sec 32 and Sec 48. Ques: What is the relationship between Sec 48, Sec 13 and Sec 32 of the Indian Evidence Act? Are they different in any respect?
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By analysing the verbatim of the bare act it could be understood that the three of them are related in the context of deciding over the existence of a particular custom or a right. Section 13 talks about the things or the necessary conditions or the prerequisite facts to be considered while deciding on the existence of a particular right or custom. Since a custom is usually a defined as a traditional and widely accepted way of doing a specific thing in a particular society, place or time, which means for evaluating someone’s right or a custom to do a particular job is related to time per se, due to this same reason for courts to establish a particular custom they usually take in account whether there was any transaction which could help in establishing a right or custom which is mentioned in 13(a), for the same if any person who cannot be called as a witness according to the section 32 of the Indian evidence act, their statements can be accounted when it is in relation of determining the continuance of a custom or right according to section 32(7). However, the court when wants to form an opinion regarding the existence of a right or custom then the court has the power to take in consideration the opinions of the local people which can help in determining the same.
According to my understanding of the three sections Section 13 acts has a broader ambit where the prerequisites or necessary facts for deciding over existence of custom or right is mentioned about and one such condition can be satisfied by using the statement by a man who cannot testify due to him bring dead or other such conditions mentioned in the section 32(7),the section 48 acts as an additional evidence in the means of opinions of local people used by the court in order to form an outlook of the continuance of an right or custom along with the section 13.section 13 = existence of custom
section 48 = continuance of a customQues: State the relationship of Section 48 with sections 13 and 32 of IEA, 1872.
According to Section 48 of the Indian Evidence Act 1872, when a court is been provided with the opinion as to the existence of a right or custom, such opinion by a person who has knowledge about the same are relevant in deciding the case brought before it. Firstly, it is to be understood that courts (here meant to be judges) are not expected to be an expert in every arena that is needed to decide a case that’s been brought before them. So, in case of the absence of knowledge, courts can ask for opinions by a person with expected knowledge about the issue in question. When the power has been granted now, the question would be about the validity of such opinions. So, the section thereby clarifies that the opinions provided are relevant in courts. But the section does not acclaim that opinions brought under the section are per se relevant. Then there comes the aid of surrounding sections.
As per Section 13 of the Indian Evidence Act the following facts, that are derived out of opinions are relevant when a right or custom is in question. They are, when facts assert any transaction or also in cases when facts assert particular instances through which the right or custom in question was (i) created, claimed, modified, recognized, asserted or (ii) denied or (iii) found to be inconsistent with its existence or (iv) departed from. In an ordinary trial, the person who gave opinion ought to present himself before the court on anytime he sought to, in the process of deciding the relevancy. Hence there arises a question what if the person who has made such opinion subsequently dies or disappears or any other situation that makes him impossible to participate in order to determine the relevancy factor.
The question is answered in section 32 of the Indian Evidence Act. The section reads as follows, where the opinion was made either written or oral, and the person dies before deciding the relevancy, courts can consider the opinion relevant where the statement was as to the existence of public right or custom or matter of public or general interest.
Hence one can find the relationship that flows between Sections 48, 13, and 32 of the Indian Evidence Act, 1872 which in general falls under the head of relevancy of customs, rights out of general practices, and anything of that sort.State the relationship of Section 48 with sections 13 and 32 of IEA, 1872?
These three sections deal with matters related to ‘rights and customs’. Generally, third-person has no say in the proceedings in the court of law. But there are many exceptions to this rule; one of them is Section 48.
Section 48 deals with the opinion as to the existence of right or custom, when relevant. It says that when there is the question of the existence of any general custom and right and on which the court has to form an opinion, the opinion of persons who are aware of the existence of such general custom or right is relevant.
Section 48 deals with general customs and general rights unlike Section 13 which deals with facts relevant when right or custom is in question. Section 13 is confined to all kinds of rights or customs whether public or private. Private customs or rights are totally excluded from the operation of Section 48.
Section 32 deals with the opinion as to public right or custom, or matters of general interest. Section 32 talks about the opinion of dead persons or the person who cannot be called as a witness, is admissible, whereas Section 48 concerns with the opinion of living persons only.
In Gururadhwaja PD v. S.P. Singh (1900), the Privy Council held that the opinion of the witness as to the existence of a family custom based upon information derived from the deceased person is relevant.
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