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Report No. 185

Section 50

This section says "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 of 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 Indian Divorce Act (4 of 1869), or in prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (XLV of 1860)".

There are two illustrations below Section 50.

In the 69th report, it was suggested (Section ch. 19) that the proviso as it stands now only refers to the Indian Divorce Act, 1869. Since then, the right to divorce has been included in several family law systems and that it is, therefore, necessary to add, "or any other enactment providing for dissolution of marriage"; and so far as prosecution, referred to in the provision are concerned, it would be necessary to add again the words, "or under any other enactment providing for the punishment of bigamy".

Sarkar (15th Ed 1999, p. 959) says that "There is a presumption against the legislature that it enacts laws with complete knowledge of all existing laws pertaining to the same subject, and the failure to bring an amendment to Section 50, corresponding to the amendment to sections 304B and 498A IPC indicates that the intent was not to repeal existing legislation" (Vadde Rama Rao v. State of A.P.) (1990) Crl LJ 1666 or 1671 (A.P.)

It will be noticed that the purport of the proviso to Section 50 was that where party wants to prove that there was a marriage, he cannot merely rely on an opinion expressed by conduct of any person. The section as drafted is in two parts, (a) relating to certain civil proceedings where dissolution of a marriage is sough.- which requires that there was a marriage first and (b) relating to certain criminal proceedings where for the purpose of proving that certain offences like bigamy, adultery etc. were committed, one is obliged to first prove a marriage.

Instead of proceeding as suggested in the 69th Report to add a clause referring to other laws relating to dissolution or to add a clause referring to other laws governing punishment for bigamy, we are of the view that a general clause covering both clauses can be drafted. In fact, apart from cases of dissolution or bigamy there may be other situations where a person is first obliged to prove a 'marriage'. If opinion by conduct is not to be sufficient, such a principle must apply to all cases where a marriage has to be proved first. It is not correct to confine the section to cases of dissolution of marriage or bigamy alone.

We recommend that the proviso in this section should be substituted as follows:

"Provided that such opinion shall not be sufficient in any civil or criminal proceedings, where a person has to prove that there was a marriage"

Review of the Indian Evidence Act, 1872 Back

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