Report No. 69
IX. Section 32(5) and 32(6)
12.150. Section 32(5).-
Section 32(5) makes a statement relevant when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption, the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
12.151. Section 32(6).-
Section 32(6) makes a statement relevant when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any Will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
12.152. Matters of Pedigree-Distinction between the two sub-sections.-
The two clauses deal with the relevancy of two classes of statements. These are usually treated by English text-writers under a single head, in discussing the admissibility of certain kinds of evidence in "matters of pedigree". There is however, a distinction between the kinds of evidence to which each clause refers.
(i) The statement declared relevant by clause (5) is a statement relating to the existence of any relationship between persons, alive or dead.1 The statement declared relevant by clause (6) is a statement relating to the existence of relationship between deceased persons only.
(ii) Under clause (5), special means of knowledge is a requisite. Under clause (6), it is not necessary that the statement should have been made by a person wilt had special means of knowledge.
(iii) But it is necessary under clause (6), that the statement must be containea in a Will or deed relating" to the affairs of the family to which any such deceasec person belonged, or in a family pedigree, or upon a tombstone, family portrait of other thing on which such statements are usually made. This is not necessary under clause (5).
1. The language of clause (5) imposes no restriction in this respect.
12.153. Thus, in some respects, clause (6) is narrower than clause (5) while, in some respects, it is wider. Both the statements, in order to be relevant, must have been made before the question in dispute was raised.
12.154. Illustrative documents and materials.-
Besides the documents and other material things specifically mentioned in clause (6), family bibles, coffin-plates, mural tablets, hatchments, rings armorial bearings and the like, amongst Christians, and books kept up by family bonds of domestic events in the families to which they are attached,1 and horoscopes among Hindus,2 are examples of other documents and things on which such statements are usually made.3
1. Ananda v. Nand, 1924 ILR 46 All 665.
2. As to horoscopes, see infra.
There seems to be some obscurity with reference to the precise position under section 32 as to horoscopes. Some of the cases seem to lay down that the maker of the horoscope must be called in court,1 but such a view would seem to overlook the fact that section 32 applies only where the maker is not available as a witness.
1. AIR 1957 Ker 103 (105).
12.156. It has been held by the Madras High Court1 that a horoscope is inadmissible where the witness producing it was not its writer or a person with special means of knowledge of its correctness. With respect, this reasoning overlooks the fact that what section 32(5) postulates is merely that the maker must have special means of knowledge.
1. Krishnamacharier v. Krishnamacharier, 1915 ILR 38 Mad 166 (171): AIR 1915 Mad 815 (White, C.J.).
12.157. It will, in no way, affect the admissibility of evidence under section 32(5) and (6) that there are living witnesses who can depose to the same fact; nor is it necessary that the statements should have been contemporaneous with the events to which they relate. On this latter point, Lord Brougham remarked that such a restriction would defeat the purpose for which hearsay in pedigree is let in, by preventing it from going back beyond the life time of the person whose declaration is to be adduced in evidence.
12.158. Of course, the non-availability of the maker must be proved. In a Calcutta case,1the chief ground of rejection of the horoscope was the fact that it was not shown that the attendance of the writer was not procurable. In another Calcutta case2 which was a suit to set aside a decree on the ground of minority, the horoscope was held to be inadmissible, because it was not shown that the maker could not be called. This reasoning, with respect, is sound3. In a later Calcutta case,4 a horoscope was admitted under section 32, the other conditions of section 32 being satisfied.
1. Ram Narain v. Monee, 1883 ILR 9 Cal 613.
2. Satish Chandra v. Mohendra, 1890 ILR 17 Cal 849 (No special means of knowledge).
3. See Raja Goundan v. Raja Gonndan, 1894 ILR 17 Mad 134.
4. Nirmala Nalini Devi v. Kamla Bala Dasi, AIR 1933 Cal 41 (51, 52) (Mitter and Bartley, JJ.).
12.159. It appears that sometimes courts do not seem to have noticed the distinction between clauses (5) and (6), namely, that under clause (6), it is not requisite that the maker of the statement should have any special means of knowledge.
12.160. Finally, it may be noted that a horoscope which is not admissible under clauses (5) and (6) of section 32 may be admissible under section 17. if it contains an admission (as defined in section 17) by the parent of the child, which is recorded in the horoscope.
12.161.Section 32(5)- Statement as to age.-
As to the expression "relationship by blood". occurring in section 12(5), it is well-established by the decision of the privy Council in Mohamed Ariff v. Yeoh Ooj Gark, AIR 1916 PC 242 (Decision from the Straits Settlements on a similar provision)" that the time of one's birth relates to the commencement of one's "relationship by blood", and, therefore, a statement of one's age, made by a person having special means of knowledge. relates to the existence of such relationship as is referred to in section 32(5). Clearly, therefore, the entry of date of birth in the school register, made on the statement of the mother of a boy, would be admissible1 under clause (5) of section 32.
1. Bhim Matzdal v. Magaram Corain, AIR 1961 Pat 21 (26).
12.162. Section 32(5)- Restriction imposed on a adminissibility by english law.-
With reference to section 32(5), it may be noted that there is one important restriction on the admissiblity of this kind of evidence imposed by English law, which finds no place in the Indian Evidence Act. In England, the evidence is not admitted in every case in which the birth, marriage, or death of a person forms the subject of controversy, but only in those cases which directly or indirectly involve some question of relationship, and in which the fact sought to be established is required to be proved for some genealogical purpose. Under the Indian Act, however, the statement is admissible, provided it relates to a fact relevant to the case.
12.163. Declarations under English law-scope.-
Under English law, the declaration of an illegitimate member of the family would be inadmissible. In India, it would seem to be admissible, since section 32 contains no such restriction Section 47 of the Act 2 of 1855 rescinded the English rule1 on this subject, an admitted the declarations, not only of illegitimate members of the family, but also of persons who, though not related by blood or marriage, were yet intimately acquainted with the members and state of the family. Finally, section 32(5) would include servants, friends, and neighbours, who are excluded under English law
1. Section 47, Act 2 of 1855.
12.164. The propriety of the extension of the rule at least to illegitimate members of the family cannot be doubted1, and the whole section was a strong instance of the tendency of modern reform, which, making admission the rule and exclusion the exception, leaves it to the Court to estimate the weight to be allowed to particular 1Cnds of evidence in individual cases. The rule now laid down in the Evidence Act is still more general in its terms than the section of the Act of 1855, which was directed merely to modify the strict rule of English law. Evidence Act is still more general in its terms than the section of the Act of 1855, which was directed merely to modify the strict rule of English law.
1. See Woodroffe.
12.165. The Section renders admissible the statements not merely of persons deceased (whose statements only are admitted in England), but also of persons who cannot be found, or who have become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay and expense which, under the circumstances of the case, appears to the Court unreasonable, if such persons had special means of knowledge of the relationship to which the statement relates.
12.166. Personal knowledge not necessary under section 32(5).-
It has, with reference to section 32(5), been held1 that a member of the family can swear in the witness box of what he has been told and what he has learnt about his own ancestors, provided that what he says is an expression of his own opinion, (even though it is based on hearsay derived from dead persons), and is not merely a repetition of the hearsay opinion of others, and provided further, the opinion is expressed by conduct.
1. Sitaji v. Vijendra Narain, AIR 1954 SC 601, followed in S.M. Daud Bibi v. A.B. Puravar, AIR 1972 Mad 228 (229), para. 7.
12.167. No change needed in sub-sections (5) and (6).-
The above discussion does not disclose any need for a change in clauses (5) and (6).