​KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Opinion as to the Existence of General Custom or Right, When Relevant (Section 42)
1. Basic Principle of Section 42Under Section 42 of the Bharatiya Sakshya Adhiniyam, the law provides that:
When a court has to determine whether a general custom or right exists, the opinions of persons who are likely to be aware of such existence are relevant facts.
In simple terms, when the issue relates to community practices or commonly exercised rights, the court may rely on the opinions of individuals who, by their position or experience, are expected to know about such customs or rights.

2. Meaning of “General Custom or Right”The expression “general custom or right” refers to customs or rights that are:

• Shared by a large group or class of persons, and
• Recognized or followed over a period of time

It is not limited to individuals but extends to communities, villages, or groups.
ExampleThe right of villagers to draw water from a common well is a general right under this section.

3. Scope and ApplicationThis section applies where:

• The court must form an opinion about the existence of a custom or right, and
• Direct documentary evidence may not be available

In such situations, the law allows reliance on opinion evidence of persons who are:

• Familiar with the practice, or
• Likely to know about it due to their experience or position

Key Idea
​ The law recognizes that customs and rights are often proved through collective knowledge and experience, rather than formal records.

4. Opinion as to Custom or RightUnder this section:

• A witness may give an opinion regarding the existence of a custom or right.
• Such opinion is admissible if the witness is likely to know about it.

Important Points

• Personal knowledge is not strictly required, but it affects the weight of the evidence.
• The witness must have:
  • Sufficient experience, or
  • Exposure to the community or practice

However:

• If the opinion is based merely on hearsay without reliable foundation, it carries little or no evidentiary value.

5. Special Requirement: Likelihood of KnowledgeThe section does not require the witness to be:

• A direct participant in the custom, or
• A formal authority

It is enough if:

• The person is likely to know of the custom if it truly exists

This could include:

• Elders of a community
• Long-term residents
• Persons familiar with local traditions

6. Difference from Other Provisions(a) Section 26(d) vs Section 42

• Section 26(d): Relates to statements of persons who cannot be called as witnesses (e.g., deceased persons).
• Section 42: Deals with opinions of living witnesses who:
  • Appear before the court
  • Are examined under oath
  • Are subject to cross-examination

(b) Section 11 vs Section 42

• Section 11: Makes facts relating to custom or right relevant.
• Section 42: Makes opinions about custom or right relevant.

Thus, Section 11 deals with objective facts, whereas Section 42 deals with subjective opinions based on knowledge.

7. Evidentiary ValueThe value of such opinion evidence depends on:

• The credibility and experience of the witness
• The consistency of the opinion with other evidence
• Whether the opinion is based on reliable information

Courts carefully evaluate such evidence and do not accept it blindly.

8. Key Takeaways

• Section 42 allows opinion evidence regarding general customs and rights.
• The witness must be a person likely to know about the existence of such custom.
• Personal knowledge strengthens the evidence but is not mandatory.
• Mere hearsay without a reliable basis is insufficient.
• The provision helps courts determine community-based rights and practices.

In One Line
Customs and community rights may be proved through the informed opinions of those who are likely to know of their existence.