Opinion as to Relationship Expressed by Conduct (s. 44) — BSA (Law of Evidence) Notes

Opinion as to Relationship Expressed by Conduct (s. 44)

“Was A the legitimate son of B?” The instinct is to reach for the legitimacy presumption — birth during a valid marriage. But look again at what the question actually gives you: not a marriage certificate, not a birth record, but the fact that the whole family always treated A as B’s son. That fact — the conduct of people who would know — is relevant in its own right, under a section built exactly for it. Spot the section, dodge the decoy, and this near-annual problem is a guaranteed score.

Ordinarily a witness states facts, not opinions (like expert opinion, this is another exception). Section 44 [IEA s. 50] lets in the opinion of an ordinary person about a relationship, but only where that opinion is expressed by conduct and the person has special means of knowledge.

Unpack the three ingredients.

The court must have to form an opinion as to the relationship of one person to another — father–son, husband–wife, and the like.
The opinion must be expressed by conduct, not by a bare say-so. It is the behaviour that is relevant — the family treating A as B’s son, friends receiving X and Y as husband and wife, invitations, ceremonies, maintenance, addressing them as such. The section makes the conduct relevant as evidence of the opinion.
The person must have special means of knowledge — either as a member of the family or otherwise placed to know (a close family friend, a family servant of long standing).

Why it matters that it is “conduct”. No marriage need be proved, and no presumption of legitimacy under s. 116 need be invoked. The recurring “legitimate son / husband and wife” problems belong here because the fact offered is the family’s conduct, which s. 44 makes relevant directly.

The proviso (the limit). Such opinion by conduct is not by itself sufficient to prove a marriage in proceedings under the Divorce Act, 1869, or in a prosecution under ss. 82 and 84 of the Bharatiya Nyaya Sanhita, 2023 (bigamy and related offences). There, the marriage must be strictly proved; conduct alone will not do.

⚠️ Do NOT answer the “legitimate son” problem with s. 116. Section 116 (legitimacy) is a conclusive presumption that applies only once birth during a valid marriage is proved — the problem never gives you that. The fact actually offered — that the family treated A as the son — is relevant as opinion on relationship expressed by conduct under s. 44. Lead with s. 44; mention s. 116 only to show why it is the decoy.

🧩 WORKED EXAMPLE — “always treated as the legitimate son”

Facts. The question is whether ‘A’ was the legitimate son of ‘B’. The evidence offered is that ‘A’ was always treated as B’s son by the members of the family. Is that fact relevant?

Rule. Section 44: where the court must form an opinion as to a relationship, the opinion of a family member (or a person with special means of knowledge) expressed by conduct is a relevant fact.

Apply. The relationship (father–son) is in question. The family members have special means of knowledge, and their conduct — always treating A as the son — expresses their opinion of the relationship. That conduct is exactly what s. 44 makes relevant.

Conclusion. The fact is relevant under s. 44 (IEA s. 50). It is not answered by s. 116, which supplies a conclusive presumption only where birth during a valid marriage is first proved.

Decoy. Reaching for s. 116 (legitimacy) — but the problem gives family conduct, not proof of birth in wedlock, so s. 44 is the section.

Section 44, BSA 2023: “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.”

In Simple Terms: How a family (or someone who really knows) behaves towards two people — treating them as parent and child, or as husband and wife — is evidence of the relationship between them. But such conduct alone is not enough to prove a marriage in a divorce case or a bigamy prosecution.

flowchart TD
    ROOT["Question: what is the relationship?"]:::root
    ROOT --> Q1{"Is the opinion expressed by CONDUCT?"}
    Q1 -->|"No (bare assertion)"| OUT["Not within s. 44"]:::diamond
    Q1 -->|"Yes"| Q2{"By a family member / person with<br/>SPECIAL means of knowledge?"}
    Q2 -->|"Yes"| IN["RELEVANT under s. 44<br/>(e.g. 'always treated as the son')"]:::leaf
    IN --> LIMIT["Proviso: NOT enough alone to prove<br/>marriage in Divorce Act / BNS ss. 82, 84"]:::diamond
    DEC["Decoy: s. 116 legitimacy —<br/>needs proof of birth in valid marriage"]:::diamond
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Dolgobinda Paricha vs Nimai Charan Misra (1959) — under s. 50 IEA (now s. 44) it is the conduct expressing the opinion that is the relevant fact; the opinion of a person with special means of knowledge, shown by conduct, is admissible on a question of relationship.
Gokal Chand vs Parvin Kumari (1952) — conduct treating parties as husband and wife raises a presumption of marriage, but such opinion by conduct is not by itself sufficient to prove a valid marriage where strict proof is required.
Chandu Lal Agarwala vs Khalilar Rahman (1943) — explained that s. 50 admits the conduct as evidence of the opinion of relationship, not the bare statement of belief.

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