concerns every member of the state; the term general is confined to a lessor, though still a considerable portion of the community. The explanation to the present section shows that the term general has been here used in the sense in which it is used by English writers. The distinction drawn between the terms general and public is not intended to the maintained here, as the term public includes the term general, and consequently every public right or custom is necessarily a general one. Vide ante p. 132.

Opinions Relevant under this Section.-The opinions of persons, likely to know, about village rights to pasturage, to use of paths, water-courses, or ferries, to collect fuel, to use tanks and bathing ghâts, mercantile usage and local customs, would be relevant under this section."-Cun. Evi., 191. Vide also ante p. 132. (Examples of matters of public and general interest).

Wajib-ul-arz.-(a). Their Lordships of the Privy Council were inclined to hold that Wajib-ul-arz or village administration papers prepared and attested by settlement officers, in pursuance of Regulation VII of 1822, are admissible in evidence under this section and section 49, in order to prove a family custom of inheritance stated therein, as the record of opinions as to the existence of such custom by persons likely to know it-Vide Lekraj Kuar v. Mahpal Singh, 5 Cal. 744.

(b). A settlement officer should not receive for entry in the Wajibul-arz of a village the mere expression of the views of a proprietor, or enter it upon the records relating to the village, the Wajib-ul-arz being intended to be the record of local customs-Uman Parshad v. Gandharp Singh, I. L. R. 15 Cal. 20.

Opinions as to usages, tenets, &c., when relevant.

49. When the Court has to form an opinion as to the usages and tenets of any body of men or family, the constitution and government of any religious or charitable foundation, or 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.

Scope of the Section.-This section makes the opinions of witnesses, having special means of knowledge, admissible in evidence upon the following matters: 1st-The usages and tenets of any body of men

or family; 2nd-The constitution and government of any religious or charitable foundation; 3rd-The meaning of words or terms used in particular districts or by particular classes of people.

Family Custom.-As to family customs see notes under section 13. Religious and Charitable Institutions. As to religious or charitable institutions ride Bengal Regulation XIX of 1810; Act XX of 1863; Act VII (Bom.) of 1865; and Madras Regulation VII of 1817.

Meaning of Words, &c.-As to meaning of words or terms vide section 98.

Books of Reference.-The penultimate paragraph of section 57 allows the Court to consult appropriate books or documents of reference on all matters of literature, science or art.

Opinion on relationship, when

relevant.

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 under the Indian Divorce Act, or in prosecutions under section four hundred and ninety-four, four hundred and ninetyfive, four hundred and ninety-seven or four hundred and ninety-eight of the Indian Penal Code.

Illustrations.

The

(a). The question is, whether A and B were married. fact that they were usually received and treated by their friends as husband and wife, is relevant.

(b). 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.

Sections referred to.-The sections mentioned above relate to the following offences :

Sec. 494, 1. P. C.-Marrying again in the lifetime of husband or

Sec. 495, I. P. C.—Marrying again in the lifetime of husband or wife, having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage.

Sec. 497, I. P. C.—Adultery.

Sec. 498, I. P. C.-Taking or enticing away another man's wife from that man or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with another person or concealing or detaining with that intent any such

woman.

The Indian Divorce Act is Act IV of 1869.

Scope of the Section.-This section affords an exceptional way of proving a relationship. It makes admissible as evidence the mere opinion, expressed by conduct, of a person who, as a member of the family or otherwise, has special means of knowledge, to prove the existence of a relationship such as marriage except in the cases herein mentioned. That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person himself is not to be called to state his own opinion, but that, when he is dead or cannot be called his conduct may be proved by others.*

Opinion expressed by conduct.-(a). In the Berkeley Peerage case, 4 Camp. 416, Mansfield C. J. observed: “If the father is proved to have brought up the party as his legitimate son, this amounts to an assertion that the son is legitimate."

(b). Continual co-habitation and acknowledgment of parentage by a consecutive course of treatment will establish marriage and legitimacy among Mahomedans-Khajah Hedayat Ollah v. Rai Jan Khanum, 3 Moo. I. A. 295. Vide also Mahomed Bauker Hossein Khan Bahadoor v. Shurfoonnissa Begum, 18 Moo. I. A. 136; Mahatala Bibi v. Prince Ahmed Halee Moojooman, 10 C. L. R. 293.

(c). Where in a transaction with a third party, A describes B as his son, and B speaks of A as his father, the acknowledgment of sonship is complete-Naba Kant Roy v. Mahatab Bibi, 20 W. R. 164.

(d). Where a son has been uniformly treated by his father and all the members of the family as legitimate, a presumption arises under the Mahomedan law that the son's mother was his father's wifeKhajooroonissa v. Rowshan Jehan, I. L. R. 2 Cal. (P. C.) 184.

Proviso.—(a). The provisions of this section, it has been held by a Full Bench, show that where marriage is an ingredient in the offence as in bigamy, adultery, and the enticing away of married

* Vide Queen-Empress v. Subbarayan, I. L. R. 9 Mad. 9.

women, the fact of the marriage must be strictly proved in the regular way-Empress v. Pitamber Singh, I. L. R. 5 Cal. 566.

(b). K was accused by D, of raping P, alleged to be D's wife, and was convicted on the charge of adultery. The evidence of marriage between D and P consisted of their statements that they were married to each other, and of a statement by K that P was D's wife. The High Court held that such evidence was not sufficient to establish the vital incident to the charge of adultery, namely, the marital relation of D and P-(Empress v. Pitamber Singh concurred in)Empress of India v. Kallee, I. L. R. 5 All. 233.

(c). To justify a conviction under sec. 498, I. P. C., it is not sufficient for the prosecution to prove that the complainant and the woman, in respect of whom the charge is made, lived together as man and wife. It is necessary that facts constituting a valid marriage should be proved-Empress v. Arshed Ali, 13 C. L. R. 125.

(d). To prove marriage according to Mahomedan law it is necessary to prove that a Mollah was present with the necessary witnesses and vakils and read the sigha (formula); that the akd was performed; and the ceremonies usual at a Mahomedan marriage in this country were performed-Badal Aurat v. Queen-Empress, I. L. R. 19 Cal. 79.

(e). The Madras High Court, in the case of Queen-Empress v. Subbarayan, I. L. R. 9 Mad. 9, discussed Empress v. Pitambur Singh, I. L. R. 5 Cal. 566, and held that the evidence of the complainant, the woman and her mother, who swore to the fact of the marriage, and who were not cross-examined by the accused as to the fact or validity of the marriage, was held sufficient evidence of marriage to support a conviction under sec. 498, I. P. C.

51. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

Grounds of opinion, when relevant.

Illustration.

An expert may give an account of experiments performed by him for the purpose of forming his opinion.

See notes to secs. 8 and 11.

This section should be read along with sec. 46.

In all cases of opinion evidence the grounds on which the judgment of the witness is formed may be inquired into, because the correctness

or otherwise of such opinion may be estimated in many instances on the grounds upon which it is based, being known,

In Stephenson v. The River Tyne Improvement Commissioners, 17 (English) W. R. 590, it was held that a skilled witness may not only say that he formed an opinion but that he acted on that opinion, his acting thereon being a strong corroboration of the truth of the opinion.

In civil cases character to prove conduct imputed, irrelevant.

Character when relevant.

52. In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts otherwise relevant.

Sections 52 and 55 relate to civil cases. Sections 53 and 54 relate to criminal proceedings only.

By the explanation to sec. 55 the word 'character' in this section includes both reputation and disposition; but evidence may be given only of general reputation and general disposition and not of particular acts by which reputation or disposition were shown.

'Person concerned' means person whose conduct is relevant to the suit.

As to witnesses vide sections 145, 146, 153 and 155.

If character be in issue strictly, or if the fact that a party is of a particular character or reputation be a fact relevant to the issue, as affecting the measure of damages or otherwise the rule excluding character evidence has no application vide section 55 post.

In criminal cases, previous good character relevant.

53. In criminal proceedings, the fact that the person accused is of a good character, is relevant.

Vide notes to secs. 52 and 54.

Importance of Character Evidence.-Evidence of good character is admissible as it is of the utmost importance in explaining the conduct of an accused person and in judging of his innocence or guilt.