Report No. 69
Section 48 deals with another matter on which opinions are 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 under the section. Th expression "general custom or right" is explained as including customs or right common to any considerable class of persons. Thus, as the illustration to the section tells us, the right of the villagers of particular village to use the water of a particular well is a general right within the meaning of this section.
Different Phraseology used in sections 32(4), 48 and 49.-
The section is satisfactory in so far as it goes. But one point deserves consideration. In our discussion1 section 32(4), we pointed out that while there are three sections-section 32(4), section 48 and section 49-which admit evidence of opinion in matters of usage, there are slight differences of phraseology in the various sections. Thus, section 32(4) speaks of a "public right or custom or matter of public or general interest"; section 48 speaks of "general custom or right" (which has been defined in the Explanation as including customs or rights common to any considerable class of persons); and section 49 speaks of "usages and tenets of any body of men or family".
It would appear that section 32(4) can be taken as the widest of all the three, and that the expression "matters of general interest" in section 32(4) would include general customs or rights dealt with in section 48. The question that arises is, whether the three sections are meant for different kinds of customs or rights, as indicated by the different phraseology employed in the three sections.
1. See discussion as to section 32(4), supra.
Public rights and personal rights.-
According to English law, there is a distinction between "public rights" and "general rights". Public rights are those common to all members of the Stat.- for example, rights of highway and ferry or of fishery in tidal waters. General rights (in England) are those affecting any considerable section of the communit.- for example, questions as to boundaries of a parish or manor. In the case of public right, all persons concerned may be presumed to be competent to make a declaration, but, in the case of general rights, the declarant must have possessed competent knowledge by residence in or other connection with the locality. In India, both the matters are covered by section 32(4), and that clause merely requires probable means of knowledge. Hence, the distinction, which is known to English law, is not of practical importance for India.
Amendment of section 48 recommended.-
In this position, section 32(4.-which uses the widest languag.- needs no change; but the question is of significance for the purposes of section 48. Since that section does not express itself in the phraseology employed in section 32(4), the question naturally arises, whether section 48 is intended to be narrower than section 32(4). We have not been able to think of any reason why section 48 should not provide for the admission of an oral declaration expressing an opinion as to the existence of a public custom or right. Perhaps, the expression "general custom and right", as explained in the section, would include all public customs and rights. However, it is advisable to have uniform language in section 32(4) and section 48, since it can be presumed that a different position is not intended. We, therefore, recommend that the language of section 48 should be brought in line with section 32(4) in this respect.
The section should, therefore, be revised as follows:-
Revised section 48
"48. When the Court has to form an opinion as to the existence of any general or public right or custom or any matter of general or public interest, the opinions, as to the existence of such custom or right or such matter, of persons who would be likely to know of its existence if it existed or of that matter, as the case may be, are relevant.
Explanation.-The expression "general custom or right" includes customs or rights common to any considerable class of persons.
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."
Opinion as to usages, tenets, etc. when relevant.-Under section 49, when the court has to form an opinion as to-
(a) the usages and tenets of any body of men or family,
(b) the constitution and government of any religious or charitable foundation, or
(c) the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon, are relevant facts.
It may be noted that the section deals with opinions, and not with specific facts. Specific facts, concerning usages could fall under section 13, if the conditions of that section are satisfied. The section needs no change. It may, however, be remarked that with the disappearance of Judges not knowing the local language, occasions for resort to the section would be infrequent-at least in the last case mentioned in the section.
Under section 50, 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.
The proviso provides that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (4 of 1869), or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860). The opinion is to be evidenced by conduct of the witness, and there is an additional guarantee of its trust-worthines.- the existence of a special knowledge of the subject. These two considerations justify the special provision contained in the section. The proviso to the section is needed because strict proof is required in all criminal cases1. In proceedings under the Indian Divorce Act also, marriage is the main act to be proved before jurisdiction can be shown or relief granted.
Recommendation to amend the proviso.-The proviso, as it stands at present, mentions only the 'Indian Divorce Act'. We are of the view that the proviso should be extended to cover other enactments, comparable to the Indian Divorce Act. Further, as to bigamy, the proviso mentions a prosecution tinder section 494, Indian Penal Code only. It should be extended to cover similar provisions in other enactments2. We recommend that the section should be amended as above. The revised section could be somewhat on the following Lines:-
1. R.V. Kallu, 1882 ILR 5 All 233 (234), (Straight, J.) following Emp v. Pitamber Singh, ILR 5 Cal 566.
2. See for example section 17, Hindu Marriage Act, 1955, Section 44, Special Marriage Act, 1954.
Revised section 50
"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-
(a) under the Indian Divorce Act, 1869, or any other enactment providing for the dissolution of marriage, or
(b) in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code or under any other enactment providing for the punishment of bigamy.
(Illustrations as at present)"
Under section 51, where the opinion of any living person is relevant, the grounds m which such opinion is based are also relevant. Thus, as is provided by the illustration to the section an expert may give an account of experiments performed )y him for the purpose of forming his opinion. The principle underlying section 51 is that the correctness of the opinion or otherwise can usually be better estimated when the grounds upon which it is based are known. The value of the opinion may be greatly increased or diminished by the reasons on which it is founded.
The section needs no change.