Some rights belong to a village rather than an individual: the right to draw water from a particular well, to graze cattle on a common pasture, to hold a fair in a specific ground. And some customs regulate the affairs of an entire community rather than one household. When such general customs or rights are in issue, Section 42 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) makes the opinions of those likely to know of their existence admissible as evidence.
42. Opinion as to existence of general custom or right, when 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.
Explanation.—The expression "general custom or right" includes customs or rights common to any considerable class of persons.
Illustration. 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.
Section 42 reproduces Section 48 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 admit community-anchored proof of general customs and rights — the kind of proof that ordinary documentary evidence cannot supply because these rights have no single owner and no single deed.
What "general" means here
The Explanation carries most of the section's interpretive weight. A general custom or right is one "common to any considerable class of persons" — not one held by an individual, and not one confined to a family. The threshold is that the custom or right must be shared across a definable, sizeable group: the residents of a village, the members of a caste, the merchants of a market, the pilgrims of a particular shrine.
This distinguishes Section 42 from its neighbour, Section 43(i), which admits opinions on the usages and tenets of a body of men or family, and from Section 44, which admits opinions on the relationship of one person to another. Section 42 is the community-scale provision. It is the mechanism for proving that a whole village has a right to a well, that an entire community observes a custom of joint pasture, or that a class of pilgrims holds a customary right of way.
Who is a competent opinion-holder
The section admits the opinions of "persons who would be likely to know of its existence if it existed." That phrasing is careful. It does not require the witness to be a legal expert or an anthropologist. What matters is that they are the kind of person who, given their position in or connection to the community, would be expected to know whether the custom or right exists. On a village right to water, that would typically include long-time residents, village elders, and users of the well. On a market custom, established traders in that market. The class is defined functionally — proximity and continuing exposure to the subject.
The illustration and what it teaches
The illustration is deliberately archetypal: the right of villagers of a particular village to use the water of a particular well is a general right within the meaning of this section. It captures the essential feature of a general right — held collectively by a defined community, exercised by many across time, and provable through the testimony of those who have lived within the arrangement.
The same logic applies beyond the village-well example. Rights of way over private land in favour of an entire settlement, communal grazing rights, rights to conduct traditional processions along a specific route, and customary rights to fish in a particular tank all fit the framework. What Section 42 asks is not whether the right is ancient or picturesque, but whether it is genuinely held by a considerable class of persons and provable through their contemporary experience.
Interlock with Sections 43 and 44
| Section | Scale | Typical subject |
|---|---|---|
| 42 | A considerable class of persons | General customs and rights (village well, common pasture) |
| 43(i) | A body of men or a family | Usages and tenets (caste customs, sect practices) |
| 43(ii) | Religious or charitable foundation | Constitution and governance |
| 43(iii) | A particular district or class of people | Meaning of words or terms |
| 44 | Two specific persons | Relationship, expressed by conduct |
The gradient is clear. Section 42 operates at the community scale of a considerable class; Section 43 narrows to defined bodies, foundations, and districts; Section 44 focuses on the individual relationship. Together they let the BSA channel evidence of collective and interpersonal facts through the right provision, rather than forcing everything through one catch-all rule.
Section 42 in modern practice
The section remains a live tool. Disputes about customary rights of way through housing developments, about access to community water sources in a rapidly changing rural landscape, about traditional processional routes in urban contexts, and about long-standing usages of common land continue to reach the courts. In each of these, the essential proof is not a title deed but the sustained experience of the community — proof that Section 42 makes admissible through the opinions of those who have lived within the arrangement.
The relationship with documentary and historical proof
Section 42 does not stand in opposition to documentary evidence — it complements it. A litigant asserting a general customary right may lead old settlement records, revenue documents, or historical references alongside opinion evidence from those who have exercised the right. Documents anchor the antiquity and continuity of the practice; the opinions of contemporary community members establish that the practice remains in current observance. The two together form a more persuasive package than either alone, and Section 42 is what makes the second half of that package admissible. A general right that once existed but has fallen into disuse is weaker than one still being lived out — and evidence of the latter can only come from those who live it.
Key Takeaways
- Community-scale rule: the opinions of those likely to know of a general custom or right are admissible on its existence.
- Explanation is central: "general" means common to any considerable class of persons — not individual, not family-only.
- Competent witness is defined functionally: proximity and sustained connection to the community count more than academic study.
- Unchanged from Section 48 IEA: the recodification preserved the provision verbatim.
- Reads with Section 45: the witness's grounds — their specific experience of the right or custom — are admissible alongside the opinion.
Conclusion
Section 42 gives the courts a workable route to prove facts that no title register or notarised deed will capture — the collective customs and rights that shape everyday life in villages, markets, and communities. Its Explanation keeps the section tethered to genuinely communal facts, and its wording admits the very people who would be expected to know whether such rights exist. Carried over intact from Section 48 of the 1872 Act, it continues to work alongside Sections 43 and 44 as the community-scale limb of the opinion-evidence cluster in Chapter II.