Opinion on relationship, when relevant:
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, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
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ADVERTISEMENTS:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
Illustrations:
(a) The question is, whether A and В were married.
The fact that they were usually received and treated by their friends as husband and wife, is relevant.
ADVERTISEMENTS:
(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.
Comments:
Principle:
Under section 50 when the court has to form an opinion as to the relationship of one person to another the opinion of any person expressed by conduct is relevant. The opinion expressed by conduct of the person who may be a member of the family or outsider, but he must have special means of knowledge on the subject is only relevant. The question is whether A was the legitimate son of В. С appeared before the court and stated “I am uncle of A. I know him since A’s birth. A is brought up by В as his son.” These statements of С constitute conduct of C, because he has special knowledge of relationship of В and A as father and son, being admissible. The opinion expressed by conduct is the only evidence.
Conditions:
The following conditions are to be fulfilled for application of the section:
ADVERTISEMENTS:
1. There must be a dispute on existence of relationship between one and another pending before the court and the court will have to determine their relationship.
2. The opinion sought to be taken must be expressed by conduct.
3. Opinion expressed by conduct must relate to the existence of relationship.
4. The witness must either be a member of the family or outsider who has special means of knowledge or particular relationship.
Opinion expressed by conduct:
According to this section the opinion must have been expressed by conduct by a member of the family or by an outsider. The conduct is therefore, used as evidence of opinion which means belief or judgment. Thus, a witness may testify to his opinion placing his own conduct before the court, he may also extend it to the conduct of others. The belief or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion what the section says that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. Such opinion can be substantiated by a person holding the opinion by the evidence of any other person. Where the question of relationship has to be proved, a member of a family can say what he has been told about his ancestors, provided what he says, is his own independent opinion not hearsay. “It is the conduct or outward behaviour which must be proved in the manner laid down in Section 60.” When Section 50 is silent about means of proving conduct for this one has to turn to Section 60 of the Act.
The proviso clarifies that opinion on relationship shall not be sufficient to prove a marriage in proceeding under the Indian Divorce Act or in prosecution for bigamy, adultery and enticing away a married woman (Sections 494, 495, 497 or 498 of I.P.C.). The question is whether a man and woman were treated as husband and wife who have been living for a number of years. In absence of any contrary opinion, the presumption might have been drawn that they were lawfully married. Under the proviso the court cannot pass sentence only on the basis of opinion that a factum of marriage has been proved.
Proof of relationship:
The sections lay importance on evidence of “such relationship.” Although it is difficult to establish relationship it may be proved by “opinion expressed by conduct” under this section. “On relationship of husband and wife between the defendant and deceased owner’s finding was that wife was legally wedded with husband. It was based on order in mutation proceedings. It was vitiated not being based on any legal evidence.” Neighbors, со-villagers and friends having frequent intercourse can gather special means of knowledge of such relationship, such opinion is not relevant unless it is expressed by conduct which means an overact. Where the evidence clearly established that ‘L’ and ‘R’ were living together for a long time, held there were presumption of marriage between the two. Evidence of a witness who has no special means of knowledge about the relationship is not admissible.
Matrimonial facts:
The mere fact that woman lived with man in his house till her death would not confer status of wife. The finding of second marriage based on preponderance of probability was not illegal.
In a matrimonial offence the admission by an accused in his statement under section 113 of the Cr. PC that the woman was the legally wedded wife of the complainant will not be of any avail to the prosecution if it otherwise fails to prove marriage between the complainant and the woman whose body stands violated. The customary adoption in Kashmir Valley was in question. It was held that operation of relationship was not applicable. It is a question of fact not burden of proof.
Proviso:
The proviso clarifies that opinion on relationship shall not be sufficient to prove a marriage in proceeding under the Indian Divorce Act or in prosecution for bigamy, adultery and enticing away a married woman under sections 494, 495, 497 or 498 of the Indian Penal Code. The question is whether a man and woman are treated as husband and wife who have been living for number of years. The presumption might have been drawn that they were legally married. Under the proviso the court cannot pass sentence only on the basis of opinion that sentence only the basis of opinion that a factum of marriage has been proved.