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BHARATIYA SAKSHYA ADHINIYAM, 2023
Adv. Usha Andewar
MAY PRESUME, SHALL PRESUME AND CONCLUSIVE PROOF
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These concepts are pivotal in the legal decision-making process. They guide
the court in determining whether the evidence meets the required standard
of proof, whether it fails to meet this standard, or whether the evidence is
inconclusive. The determination of facts as proved, disproved, or not proved
directly impacts the verdicts in legal cases, influencing decisions on guilt,
innocence, liability, and other legal outcomes.
Meaning of presumption
As per the dictionary, the meaning presumption is ‘an idea that is taken to
be true on the basis of probability’ or ‘the act of believing that something is
true without having any proof’.
In the law of evidence, a presumption of a particular fact can be made
without the aid of proof in some situations. The invocation of a presumption
shifts the burden of proof from one party to the opposing party in a court
trial.
Presumptions are either of law or fact. Presumptions of fact are inferences
which the mind naturally and logically draws from given facts, irrespective
of their legal effect. A presumption is a rule where if one fact which is known
as the primary fact is proved by a party then another fact which is known as
the presumed fact is taken as proved if there is no contrary evidence of the
same.
Presumptions can be classified into certain categories:
1. Presumption of fact
2. Presumption of law
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Presumption of Fact - Presumption of fact are inference which are
naturally drawn from the observation of the course of nature and the
constitution of human mind. Section 119 of the Adhiniyam and the
illustrations under the Section are examples of presumption of facts.
Sections 88, 89 and 92 deals with the presumption of fact. These
presumptions are generally rebuttable.
Presumption of Law - Presumption of law is two kinds i.e. ;
1. Irrebuttable presumption - The conclusive or irrebuttable
presumptions of law are those legal rules which are not overcome by
any evidence that the fact is otherwise. A well-known instance of an
irrebuttable presumption of law can be found in Sec. 20 of the BNS,
wherein it is laid down that “nothing is an offence which is done by a
child under seven years of age”. If in a criminal case it is proved that
the accused is below seven years of age he shall be presumed
innocent, no evidence will be allowed to prove that the accused was
guilty. This type of presumption of law is conclusive.
2. Rebuttable presumption- This kind of presumption arises when
presumptions of law are certain legal rules, defining the amount of
evidence requisite to support a particular allegation, which facts being
proved, may be either explained away or rebutted by evidence to the
contrary, but are conclusive in absence of such evidence. Legal
presumptions of this kind are definitions of the quantity of evidence
sufficient to make a prima facie case: in other words of the
circumstances under which the burden of proof lies on the opposite
party. A few examples will suffice- a man is presumed innocent until
he is proved guilty, a child if born in a legal wedlock shall be
presumed to be legitimate and one who questions his legitimacy must
disprove it, if a child is born during divorce he must be presumed
illegitimate unless the contrary is proved, a presumption of law is that
a man is alive unless nothing has been heard about him for 7 years
when the presumption is that he is died. Sections 110, 111, 116 are
the examples of this presumption.
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“May Presume” - Section 2 (1) (h)
The word “may” itself denote ‘expressing possibility’ or ‘expressing or seeking
permission’.
The presumptions under this section (May Presume) may also be called as
“Presumptions of Fact”; “Natural Presumptions”, “Permissive Presumptions”;
“Rebuttable Presumptions”.
According to the Section 2 (1) (h), whenever it is provided by this Adhiniyam
that the Court may presume a fact -
(i) It may either regard such fact as proved, unless and until it is
disproved; or
(ii) It may call for proof of it.
Illustrations
The Court may presume –
(a) That judicial and official acts have been regularly performed;
(b) That the common course of business has been followed in particular
cases;
(c) That a man who is in possession of stolen goods soon after the theft is
either the thief or has received the goods knowing them to be stolen,
unless he can account for his possession;
Sections 88 to 93, 118, 119 and 120 of the BSA provide the necessary
presumptions for “may presume”.
Section 92 of BSA provides that when a document purporting to be 30 years
old is produced from a proper custody, the court may presume that the
document was signed and written by the person by whom it purported and
is said to have been written and signed.
Generally when a document is filed in a case it is to be proved by adducing
evidence as to who wrote the deed and who signed it. Unless and until it is
done, the document cannot be read in evidence. If a document produced
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before the court is 30 years old, the court may dispense with the proof of it
and read the document in evidence without calling for the proof of it. The
court may also call for the proof of it and may order that the document will
not be read in evidence without being proved.
May presume is a condition when the court enjoys its discretion power to
presume any/ certain/ few facts and recognize it either proved or may ask
for corroborative evidence to confirm or reconfirm the presumption set by
the court in its discretion. This Section of BSA provides that a fact or a
group of facts may be regarded as proved, until and unless they are
disapproved. The concept is that ‘May Presume’ deals with rebuttable
presumption.
“Shall Presume” – Section 2 (1) (l)
The word ‘shall’ itself denotes a “strong assertion or intention or
determination”. The presumptions under Section 2 (1) (l) (Shall Presume)
may also be called as “Presumptions of Law”; “Artificial Presumptions”,
“Obligatory Presumptions”; “Rebuttable Presumptions of Law”.
According to this section, whenever it is directed by this Adhiniyam that the
Court shall presume a fact, it shall regard such fact as proved, unless and
until it is disproved.
The expression shall presume gives no discretion to the Court, but to accept
a fact as proved, unless and until it is disproved.
Whenever there is a provision to the effect “that the court shall presume a
fact” the court cannot exercise its discretion. It is compelled to take the fact
as proved, i.e., it shall have to presume the fact. But in this case, the court
will be at liberty to allow the opposite party to adduce evidence to disprove
the fact so presumed and if the opposite party is successful in disproving it,
the court shall not presume the fact.
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Whereas, shall presume denotes a strong assertion or intention to
determine any fact. This section of BSA explains the principle of ‘Shall
Presume’ that the court does not have any discretionary power in the course
of presumption of ‘Shall Presume’, rather the court has presumed facts or
groups of facts and regard them as if they are proved until they are
disproved by the other party. Section 2 (1) (l) of BSA explains that the
concept of ‘Shall Presume’ may also be called ‘Presumption of Law’ or
‘Artificial Presumption’ or ‘Obligatory Presumption’ or ‘Rebuttable Presumption
of Law’.
Sections 78 to 87, 91 and 108, 115, 118 of BSA provide necessary
presumptions for “shall presume”.
“Conclusive proof” – Section 2 (1) (b)
The word ‘conclusive’ itself denotes a “proving that something is true”, or
“ending any doubt”.
When one fact is declared by this Act to be conclusive proof of another, the
Court shall, on proof of the one fact, regard the other as proved, and shall
not allow evidence to be given for the purpose of disproving it.
When the law says that a particular kind of evidence would be conclusive,
that fact can be proved either by that evidence or by some other evidence
that the court permits or requires. When such other evidence is adduced, it
would be open to the court to consider whether, upon that evidence, the fact
exists or not.
The phrase ‘Conclusive proof is found in Sections 35, 116 of BSA and S. 20
(child under 7 years cannot commit an offence) of the Bharatiya Nyaya
Sanhita, 2023.
While, Conclusive Presumptions/ Proofs, this can be considered as one of
the strongest presumptions a court may assume but at the same time the
presumptions are not completely based on logic rather court believes that
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such presumptions are for the welfare or upbringing of the society. With
regards to Conclusive proofs, the law has absolute power and shall not allow
any proofs contrary to the presumption which means if the facts presumed
under conclusive proofs cannot be challenged even if the presumption is
challenged on the basis of probative evidence. This is the strongest kind of
all the existing presumptions whereas Sections 35, 116 of BSA and S. 20
(child under 7 years cannot commit an offence) of the Bharatiya Nyaya
Sanhita, 2023 are one of the most important provisions related to the
irrebuttable form of presumptions or Conclusive Presumption.
The general definition of Conclusive Proof is a condition when one fact is
established, then the other facts or conditions become conclusive proof of
another as declared by this Act. The Court in its consideration shall regard
all other facts to be proved, only if one fact of the case is proven without any
reasonable doubt. And if the other facts are proved on the basis of proving of
one fact that the court shall not allow any evidence contrary to other facts
which are presumed as conclusive proofs.
Illustrations
A and B married on June 1 and the husband left home to his work for 6
months later he discovered that her wife is pregnant he divorced the wife
and challenges that he is not liable for paying damages either to his wife or
to his illegitimate son. And also explains that he never consumed his
marriage as just after one day of marriage he left his home for his work. But
in this case, the court will conclusively presumed that the son born out of
his wife is legitimate because he was with his wife for at least 1 day and
shall not allow any proof contrary to the conclusive proof even if he provides
probative evidence.
Suppose A files a suit in a court of law for declaration that B is his legally
married wife. The court gives a decree in favour of A and declares that B is
his wife. After a few years in the lifetime of A, B files a suit against D for the
property of one C, alleging that she is widow of C. In this case there will be
an issue whether B is the wife of C. D files the copy of the judgment of the
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previous case (A versus B). This judgment will prove that B is legally married
wife of A. Now that B is legally married wife of A is a conclusive proof of the
fact that she is not the wife of C. Therefore, after the judgment mentioned
above has been filed, the court cannot allow B to adduce evidence to prove
that she is wife of C and not of A.
MAY SHALL CONCLUSIVE
ASPECT
PRESUME PRESUME PROOF
The court may
The court is
regard a fact The fact is
required to
as proved accepted as true
regard a fact
Definition unless it is and cannot be
as proved
disproved but contradicted by
unless it is
is not bound to evidence.
disproved.
do so.
Yes, the court
has the No, the court No discretion;
Court’s discretion to must presume the fact is
Discretion presume or the fact unless considered
call for further disproved. irrefutable.
proof.
Cannot be
Can be Can be
rebutted; no
rebutted with rebutted with
Rebuttal contrary
evidence to the evidence to
evidence is
contrary. the contrary.
admissible.
Presuming Presuming the
delivery of a validity of a Presumption of
registered cheque for legitimacy of a
Example
letter unless debt discharge child born
proven unless proven during a valid
otherwise. otherwise.
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