Sections 34, 35 and 36 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) make certain judgments admissible in later proceedings — some as conclusive proof, others as material to be weighed. But no such admissibility can operate in a vacuum. If the earlier judgment was obtained by fraud, or by collusion between the parties, or from a court that had no jurisdiction to deliver it, its evidentiary force ought to fall away. Section 38 gives that instinct statutory shape: a party may prove that a judgment relied on by the other side was fraudulently obtained, collusively obtained, or delivered by an incompetent court.
38. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 34, 35 or 36, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
Section 38 reproduces Section 44 of the Indian Evidence Act, 1872 (IEA) without any change in wording. The BPRD BSA-to-IEA correspondence table records "No change." Its function is to complete the previous-judgments cluster in Chapter II by providing a defined route to challenge such judgments when their apparent authority masks a serious defect.
Three specific vices Section 38 lets a party prove
These three grounds are alternatives, not a package. A party challenging a prior judgment need prove only one of them. And crucially, the section says "any judgment, order or decree" — the challenge is available across all three of the section-based routes to admissibility (Sections 34, 35 and 36), not just to judgments admitted as conclusive proof.
Who may raise the challenge, and when
The right belongs to "any party to a suit or other proceeding" — meaning it operates in whichever proceeding the earlier judgment is being tendered. The challenge is not a collateral action to set aside the earlier judgment; it is an argument, offered within the current litigation, that the earlier judgment does not deserve the evidentiary effect the opposing party seeks to give it. The earlier judgment may formally remain on the record of the earlier court; Section 38 simply prevents it from doing evidentiary work in the current matter.
Where Section 38 sits in the judgment cluster
| Section | Function |
|---|---|
| 34 | Previous judgments relevant to bar a second suit or trial |
| 35 | Certain judgments (probate, matrimonial, admiralty, insolvency) — conclusive proof under sub-section (2) |
| 36 | Judgments on matters of a public nature, relevant but not conclusive |
| 37 | Other judgments generally irrelevant, save for specific exceptions |
| 38 | Fraud, collusion, or incompetence may be proved to defeat the effect of any relevant judgment under 34–36 |
The design of the cluster becomes clearer with Section 38 in view. Sections 34 to 36 open specific gateways for admitting prior judgments as evidence. Section 37 fixes the default that other judgments are irrelevant. Section 38 keeps the whole system honest by refusing to let a judgment travel on its face when the party against whom it is used can prove that it was fraudulently obtained, collusively procured, or delivered by a court without jurisdiction.
Why the ability to challenge is essential
Without Section 38, the strongest form of admissibility — a Section 35 judgment operating as conclusive proof under sub-section (2) — would be unbreakable in later proceedings, even where the earlier decree was a product of deceit or of a court that never had jurisdiction. That would be an unacceptable result. A judgment obtained by fraud is, in the classic phrase of the common law, no judgment at all; the same is true of one obtained collusively or by a court with no authority. Section 38 does not treat those defects as automatically fatal — it requires them to be proved — but it does provide the doorway for the challenge, and it makes clear that no relevancy provision in Sections 34 to 36 can be used to insulate a defective judgment from that challenge.
Practical scenarios where the section bites
Two recurring situations show the section's real utility. First, benami and property-related litigation: a party sometimes produces a decree obtained years earlier, ostensibly binding third-party claimants. If those claimants can show the decree was collusively obtained between the ostensible plaintiff and defendant to create a favourable record, Section 38 gives them a specific evidentiary handle to defeat its use in the current suit. Second, matrimonial and probate litigation: where a party produces a foreign or coordinate-jurisdiction decree — a divorce, a grant of probate — and the other side contends the earlier court lacked competence to deliver it, Section 38 permits that argument to be run within the current proceeding, without the delay and cost of a fresh setting-aside action in the earlier forum.
The section's economy is one of its virtues. Rather than requiring a party to first pursue an independent challenge to the earlier judgment before the earlier forum, Section 38 allows the defect to be raised as an evidentiary answer in the current trial. That saves time in cases where the fraud, collusion, or incompetence is provable but not central to the parties' present dispute.
Unchanged from Section 44 IEA
The BSA has not touched Section 44 IEA except to renumber it as Section 38. The three grounds — fraud, collusion, and incompetence — and the reference to the surrounding cluster's admissibility provisions all read identically. Case law developed under Section 44 IEA on the meaning of "fraud" in judgment-obtaining, the difference between collusion and mere cooperation, and the categories of jurisdictional incompetence continues to apply.
Key Takeaways
- Three grounds: fraud in obtaining the judgment, collusion between the parties, or incompetence of the court that delivered it.
- Available across Sections 34, 35 and 36: the challenge applies to any judgment relevant under those provisions.
- Available to any party: the challenge is raised within the current proceeding, not by a separate action.
- Must be proved, not merely alleged: the party challenging must plead and prove the specific ground.
- Unchanged from Section 44 IEA: the rule is carried over verbatim.
Conclusion
Section 38 is the safety valve of the previous-judgment cluster. Sections 34 to 36 supply the routes by which a judgment from one case may do evidentiary work in another, but those routes assume the earlier judgment has real integrity. Where that integrity is missing — because the judgment was fraudulently or collusively obtained, or was delivered by a court without jurisdiction — Section 38 lets the party against whom the judgment is invoked say so, prove it, and defeat its use. Unchanged from Section 44 of the 1872 Act, the section remains an essential complement to the judgment-relevancy scheme.