Section 44 BSA 2023: Opinion on Relationship, When Relevant

Section 44 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the relevancy of an opinion about the relationship of one person to another when that opinion is expressed through conduct by a person having special means of knowledge of the relationship.

Current legal position

The Bharatiya Sakshya Adhiniyam, 2023 is Act No. 47 of 2023 and came into force on 1 July 2024. It governs the general rules and principles of evidence for judicial proceedings, subject to the scope stated in the Act.

Text of Section 44 - Opinion on Relationship, When Relevant

44. 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 under the Divorce Act, 1869, or in prosecution under sections 82 and 84 of the Bharatiya Nyaya Sanhita, 2023.

Illustrations

The question is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.
The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

What Section 44 Means

Section 44 recognizes that family and other personal relationships are sometimes proved by the way people consistently behave toward one another. A person who is part of the family, or who otherwise has special means of knowledge, may express an opinion about a relationship through conduct. That conduct can become a relevant fact when the Court has to decide whether the relationship exists.

The provision is not a general rule making every statement about a relationship admissible. The opinion must be connected with conduct, and the person whose conduct reflects the opinion must have special means of knowledge of the relationship.

Essential Requirements of Section 44

The Court must have to form an opinion about the relationship of one person to another.
The opinion must concern the existence of that relationship.
The opinion must be expressed by conduct.
The person expressing that opinion must have special means of knowledge on the subject.
Such special knowledge may arise from family membership or from another close and reliable connection with the persons concerned.
The evidence is relevant, but its weight will depend on the facts and circumstances of the case.

Meaning of "Opinion Expressed by Conduct"

The phrase refers to conduct showing how a person understood or recognized the relationship. For example, consistent treatment of two persons as spouses, or consistent recognition of a person as a child or other family member, may be relevant when that conduct comes from persons who have special knowledge of the family relationship.

The statutory illustrations make this clear. Social treatment of A and B as husband and wife can be relevant to the question whether they were married. Likewise, the manner in which family members consistently treated A as the legitimate son of B can be relevant to the question of parentage.

Important Limitation: Proof of Marriage

Section 44 contains an express limitation. An opinion about a relationship, even though relevant, is not by itself sufficient to prove a marriage in proceedings under the Divorce Act, 1869, or in prosecutions under Sections 82 and 84 of the Bharatiya Nyaya Sanhita, 2023.

Section 82 of the Bharatiya Nyaya Sanhita, 2023 concerns marrying again during the lifetime of a husband or wife. Section 84 concerns enticing, taking away, concealing or detaining a married woman with the criminal intent specified in that section. Because marital status is central in such matters, Section 44 expressly prevents relationship opinion evidence from being treated as sufficient proof of marriage by itself.

Section 44 and the Earlier Evidence Act

Section 44 of the Bharatiya Sakshya Adhiniyam, 2023 carries forward the familiar evidentiary principle concerning opinion on relationship that was contained in Section 50 of the Indian Evidence Act, 1872, while updating statutory cross-references to the new criminal law framework.

Practical Use of Section 44

The section can become relevant in disputes involving family status, legitimacy, succession, inheritance, marriage-related issues, genealogy and other proceedings where the existence of a relationship is a fact in issue or otherwise relevant. The Court will examine the nature of the conduct, the source of the person's knowledge, consistency over time and the surrounding evidence.

Relationship evidence under Section 44 should therefore be read with the other rules of relevancy and proof under the Bharatiya Sakshya Adhiniyam, 2023. Relevancy permits the evidence to be considered; it does not automatically make the disputed relationship conclusively proved.

Related BSA Provisions

Section 44 forms part of the group of provisions dealing with opinions of persons and the relevancy of those opinions. Readers may also refer to Section 41 - Opinion as to handwriting and signature, when relevant, Section 42 - Opinion as to existence of general custom or right, when relevant, Section 43 - Opinion as to usages, tenets, etc., when relevant, and Section 45 - Grounds of opinion, when relevant.

Note: This page is a general legal information resource. For a specific dispute, the facts, applicable procedural law and binding judicial decisions should also be examined.