Section 13 of the Indian Evidence Act, 1872 speaks about, Facts relevant, when right or custom is in question. It runs as follows:
“ Where the question is as to the existence of any right or custom, the following facts are relevant-
a. Any transaction by which the right or custom in questions was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;
b. Particular instances, in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from ”.
Illustration: The question is, whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours, are relevant facts.
The word “right“ literally means “an interest recognised and protected”. If it is protected by the administration of justice, it is called “legal right”. Section 13 is concerned with legal rights only. Section 13 applies to all kinds of ‘rights’ — public or private, right of full ownership or falling short of ownership (e.g. rights of easements), a corporeal or incorporeal right (e.g. right of way).
The term “Custom” means “usage or traditionally followed long practice by the members of a society”. Manu recognized custom to be transcendent law. Custom is a good source to interpret law in the administration of justice. A custom is a particular rule, which has existed from time immemorial and has obtained the force of law, in a particular locality. A custom is nothing but a long-standing usage. The requisites of a valid ‘custom’ are that the same should be ancient, certain and reasonable (should not be opposed to public policy or morality).
Section 13 makes the instances and transactions relevant to prove or disprove a custom: it has nothing to do with the mode of proof. A custom is a mixed question of law and fact. First certain facts are to be proved and from those facts an inference of the existence of a valid custom is drawn. Where a custom is pleaded by one party and denied by the other, the onus is on the party pleading it to show its existence. A custom may be “proved or disproved” in any of the following ways:
Judgments, orders or decrees are relevant to prove a custom but they are not conclusive proof thereof. But, when a custom has been repeatedly brought to the notice of the court and judicially recognized, it becomes a part of the law of the locality where it prevails and it is not necessary to prove its attributes in each individual case.