Presumptions under law of Evidence


In general, the term “presumption” refers to the process of determining a few facts based on a possibility or as the result of actions that reinforce a possibility. When a possibility has a strong basis in fact, facts may usually be determined. In terms of the law, presumptions refer to conclusions reached by the court regarding the existence of particular facts. By applying a technique of “best probable reasoning” to the circumstances, conclusions can be reached that are either positive or negative. The fundamental presumption rule states that facts are presumed to be proven until disproven if they are related to a case or set of circumstances that are deemed to be primary facts and are establishing other related facts.

According to Stephen, a presumption is a legal principle that permits courts to draw a certain conclusion from a given fact until and until the veracity of that conclusion is refuted by other evidence. This definition discusses mandatory presumption rather than permissive presumption. Presumptions therefore refer to things that are assumed. A presumption simply establishes a prima facie case for the party in whose favour it exists; it is not proof in and of itself.

The concept that “the court may presume the existence of any fact which it thinks likely to have occurred, having regard to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case,” is addressed in detail in Section 114 of the Indian Evidence Act.

There are various categories into which assumptions can be divided into:

  • Presumptions of fact.
  • Presumptions of law.
  • Mixed Presumptions.

Presumptions of fact are those inferences that are rationally and naturally drawn from experience and observations in the course of nature, from human thought processes, or from human deeds. Additionally known as material or natural presumptions, they exist. In general, these presumptions are rebuttable presumptions. The conclusions that are considered to be supported by the law are known as presumptions of law. It can be further broken down into rebuttable and irrefutable presumptions of law. Rebuttable presumptions of law are those that are true up until contrary evidence is presented to contradict them. Presumptions of law that are deemed to be conclusive in nature are known as irrefutable presumptions of law. No matter how compelling the contrary evidence may be, it cannot be used to refute them. Due to their strength or significance, mixed presumptions are some inferences that might be viewed as legal observations. These are also known as mixed law and fact presumptions and presumptions of legally admissible fact.

Analysis of Section 4 of the Indian Evidence Act

The Indian Evidence Act’s Section 4 addresses three types of presumptions:

  • Discretionary Presumptions
  • Mandatory Presumptions
  • Conclusive Proof

Sections 86, 87, 88, 90, and 90-A of the Indian Evidence Act cover Discretionary Presumptions pertaining to documents. These presumptions are those in which the words “may presume” are used in the sections, and the usage of those terms denotes that the courts of law have the authority to determine whether or not a presumption may be raised.

When such presumptions apply, the courts of law will assume that a truth is proven unless and until it is asserted to be disproven in court or until it requests proof of a fact that has been brought before it. The Indian Evidence Act’s Sections 79, 80, 80-A, 81, 82, 83, 85, and 89 address mandatory presumptions. The phrase “must presume” is used in relation to certain presumptions. When there are such presumptions, unless and unless it is disproved, the courts of law will assume a fact before it is proven.

There is no discretion left to the court, so there is no need for a call of proof in this case. The words “shall presume” mean that the courts must mandatorily raise a presumption, and a presumption that is raised shall be considered to be proved unless and until the presumption is said to be disproved. The court is forced to raise the presumption as if it were being ordered by the legislature, and it has no choice but to do so. The fact that both mandatory and discretionary presumptions are rebuttable distinguishes them from one another.

According to Section 4, a fact is deemed to constitute conclusive proof of another fact when the court considers another truth to have been proved after receiving proof of the first fact and does not permit the presentation of evidence intended to refute the first fact. Conclusive Proof and Conclusive Evidence are synonyms. By law, certain facts are given an artificially high degree of probative weight, and no evidence may be presented that would undermine that weight. It provides the existence of a fact that is being sought after finality. This typically happens when it is against governmental policy or in the interest of society as a whole. This is an unchallengeable assumption.

According to the general rule on the burden of proof, the burden of proof is with the party making the factual allegation. However, a party may benefit from the presumptions that are in its favour. If the prosecution can show that a presumption’s requirements are met and it is rebuttable, then the burden of proof to do so always rests with the party seeking to do so.

Discretionary Presumptions relating to Documents

Presumptions that are left up to the court’s discretion to raise or not are known as discretionary presumptions. Discretionary presumptions are utilised in the clauses where the phrase “may presume” appears. The Indian Evidence Act’s Sections 86, 87, 88, 90, and 90-A provide for the discretionary presumptions relating to documents. According to Section 86, if a certified copy of a judicial record from a foreign nation is duly certified in accordance with the rules that are followed in that country for certifying copies of judicial records, the court may presume the authenticity and accuracy of the document.

This section’s presumption is permissive and urgent in nature; thus it must be followed. However, the presumption may or may not be raised at the discretion of the court. A foreign judgement is not admissible as evidence in court if this section’s certificate is absent. However, this does not imply that it precludes other evidence. The foreign judgement need not have already been entered as evidence in order to establish this assumption.

The Section 87 presumption has to do with who wrote the book, map, or chart, as well as when and where it was written. It has nothing to do with the veracity or correctness of the facts that are stated in the book, map, or chart. Although there isn’t convincing proof that the data on the map, book, or chart is accurate, it is assumed to be accurate in the lack of contrary evidence. Depending on the information’s source, a map or chart’s information may or may not be accurate. The publication’s age is also unimportant; the court may cite any publication as long as it is pertinent to the case that has been presented before it.

The premise behind Section 88’s presumption is that official acts are carried out in a routine manner. According to this clause, the court will accept hearsay as proof of the identity of the message that was conveyed. This clause stipulates that no assumption should be made about the person who delivered the message for the purpose of transmission, which is a condition that must be followed. This presumption only applies if the communication has actually reached the intended recipient; otherwise, the message is not regarded as having been proven. This presumption only applies to messages that are sent to the recipient via a telegraphic office. Radio communications are likewise subject to this assumption.

The original of the telegraph is on the form provided to the post office by the sender of the message, not on the form provided by the post office to the addressee. Before a copy can be considered as secondary evidence before the court under this section, either the original copy must be presented before the court by a post office official or proof of its destruction must be provided.

The message received by the addressee is presumed under Section 88 to be the same as the message sent to the telegraph office for transmission, but the identity of the person who delivered the said message for transmission is not presumed. However, the evidence supporting the message’s authorship is circumstantial rather than direct. Proof of the message’s authorship can be found in the message’s content when it is read alongside the chain of correspondence.

As an extension of Section 88, which deals with the transmission of electronic messages, Section 88-A has a framework that is identical to that of Section 88. In accordance with this section, the court may assume that an electronic message sent by the sender through an electronic mail server to the intended recipient corresponds with the message as it was fed into his computer for transmission. However, the court shall not assume anything regarding the sender of the message. If you look at Clauses (b) and (za) of Subsection (1) of Section 2 of the Information Technology Act of 2000, you can find definitions for the terms “addressee” and “originator” that are used in this section.

The presumption relating to ancient papers or documents older than 30 years is covered under Section 90. The notions of convenience and need serve as the cornerstone of Section 90. This section’s main goal is to make it easier for people to establish their cases by demonstrating the handwriting, execution, and attestation of historical documents.

According to this clause, the court may presume the following things about old documents: a) the signature and every other aspect of the signer’s handwriting; and b) that the signer of the document actually signed and witnessed it. The document’s contents and authenticity are not covered by the assumption outlined in this section.

All papers that fall under the definition provided in Provision 3 of the Indian Evidence Act are subject to the presumption provided by this section. It applies to financial records, wills, and other private and public papers. Documents that are anonymous are not covered by this assumption. The following requirements must be met in order for Section 90’s presumption to be applicable:

The document must be established as being 30 years or older. To prove that a document is older than 30 years, there must be some proof, or at the very least, a prima facie case. This is a rebuttable assumption, nevertheless. Without any official proof, old records can be read as proof. From the date the document was signed until the day it was presented as evidence, a 30-year window is commutated.

Producing the paperwork from the right possession is required. By providing proof to support the claim or demonstrating that the person who generated the document was the depository, it is possible to demonstrate that the document was produced from proper possession.

The document must be the genuine article, not a certified or registered copy. The certified copies of a document are not acceptable in court if the original is not produced and no explanation is given for why the original was not produced. The signature that authenticates the document may, nevertheless, be believed to be genuine if a copy of the document is admissible as secondary evidence under Section 65, is produced from proper custody, and is older than thirty years. However, this does not demonstrate the execution of the document. If the original document is in the custody of the opposing party, certified copies are admissible. If the original copy is lost, certified copies may also be used to demonstrate the contents of the original.

This presumption only applies when the document’s signature and handwriting are established. The presumption under Section 90 does not apply to documents that are not signed. If there is no proof to the contrary, thumbprints are included in the definition of signature under this provision. Seals, however, are excluded from the definition of signature provided in the General Clauses Act, so they are not considered part of the signature covered by this provision.

The court may assume the validity of the document if it has been in its possession for more than 30 years and was produced from proper custody, however there are some circumstances that weaken the presumption under Section 90. The circumstances that cast doubt on the document’s validity diminish the assumption. When a document’s authenticity is questioned, the court must weigh both external and internal evidence to determine if the execution and signature were correct.

The court need not assume that a document was signed by the person who is said to have signed it when the document appears to be questionable.

In terms of form, Section 90-A is comparable to Section 90 of the Indian Evidence Act and functions as an extension of Section 90, which covers electronic records older than five years. The court may assume that the electronic signature that purports to be the electronic signature of any specific person was so affixed by him or authorised by him in this behalf if any electronic record that purports to be 5 years old and is produced from custody that the court in the particular case considers proper.

According to the explanation for this section, electronic records are considered to be in proper custody if they are kept by the person with whom they naturally reside and are under their care; however, no custody is considered to be improper if its legality can be established or if the situation makes it likely that it did.

Differentiation between May Presume, Shall Presume and Conclusive proof

The term “may presume” refers to a situation where the court has the option to assume any/certain/few facts and accept them as proved. The court may also request corroborating evidence to support or refute the presumption it has made in its discretion. According to Section 4 of the Indian Evidence Act, a fact or set of facts may be taken as proven up to and unless they are rejected. According to Section 4 of this Act, the phrase “May Presume” refers to a rebuttable presumption and is not a branch of law.

Whereas, the phrase “shall presume” implies a firm claim or a purpose to establish any fact. The notion of “Shall Presume” is explained in Section 4 of the Indian Evidence Act. According to this principle, the court has supposed facts or groupings of facts and treats them as though they are proved until they are refuted by the opposing party. According to Section 4 of the Indian Evidence Act, the idea of “Shall Presume” is a subfield of jurisprudence and may also be referred to as “Presumption of Law,” “Artificial Presumption,” “Obligatory Presumption,” or “Rebuttable Presumption of Law.”

While conclusive presumptions and proofs are among the strongest presumptions a court may make, the court also feels that these presumptions are necessary for the welfare or upbringing of society rather than being only based on logic. The law has absolute authority over conclusive proofs and shall not permit any proofs that are inconsistent with the presumption, which implies that even if the presumption is contested on the basis of probative evidence, the facts presumed by conclusive proofs cannot be contested. This is the main type of presumption currently in use, and Sections 41, 112, and 113 of the Evidence Act and Section 82 of the Indian Penal Code are some of the most significant laws relating to conclusive presumption or the irrefutable form of presumptions.

The general definition of conclusive proof, as stated by this Act, is a circumstance in which one truth is established and the remaining facts or conditions become conclusive proof of the first. Only if one truth in the case is proven beyond a reasonable doubt will the court consider all other facts to be proven. Additionally, the court cannot accept evidence that conflicts with other facts that are presumptively conclusive proofs if the other facts are proven on the basis of the proof of one fact.

For instance, A and B got married on June 1; the husband left the house to go to work for six months; after learning that his wife was pregnant, he filed for divorce and contends that he is not responsible for paying damages to either his wife or his kid who was not born naturally. And it clarifies that he didn’t spend his marriage on himself because he departed for work just one day after getting married. However, because he was with his wife for at least one day before to the boy’s birth, the court will in this instance conclude decisively that the son is genuine and will not accept any evidence that would be inconsistent with this assumption, even if the man offers probative proof.

General Classification of Presumption

The Indian legal system developed a third categorization, known as mixed presumptions, which covers both the features of facts and law. The previous method of the common law system had only categorised presumption under two categories, a presumption of law and presumption of facts. As a result, there are three different sorts of presumptions in the current legal system:

Presumption of Facts

Inferences that are naturally and logically drawn from observations and circumstances in the normal course of human interaction are known as presumptions of fact. Additionally known as material or natural presumptions, they exist. Natural presumptions are essentially instances of circumstantial evidence because it is thought to be very beneficial to act in the course of reasoning where many inferences can be readily drawn from other evidence. Otherwise, it will keep a lot of ambiguity on the legal system because it will be much more challenging to prove every fact in order to apprehend offenders or members of society who violate the law. Natural presumptions may typically be refuted.

Several sections of the Indian Evidence Act, including Sections 86–88, 90, 113A, and 113B, state natural presumptions in a plain manner. Whereas Section 86 discusses certified copies of foreign judicial records, Section 87 expresses presumption of books, maps, and charts, Section 88 deals with presumption related to telegraph messages, Section 90 deals with documents older than thirty years, and Section 113A deals with hard-core crime, which is Presumption as to abatement of suicide by a married woman, and Section 113B deals with documents older than thirty years.

The phrase “shall presume” is used in connection with the Presumptions of Facts. According to this idea, the court will assume that any facts that have been established before them are true unless the accuser provides evidence to the contrary. The phrase “must presume” emphasises that courts must uphold and acknowledge certain facts as proven by creating an obligatory assumption, and courts must treat these facts as fully proven until such a presumption is contested and rejected. The court lacks discretion to uphold these presumptions when the challenging party successfully refutes them.

Conditions Where Court May Use the Presumption of Facts To Ascertain Some Facts:

Foreign Judicial Records

According to Section 86, the called document must be compliant with local or domestic laws and the court has the discretionary ability to presume the accuracy and authenticity of certified copies of judicial records from different foreign countries. Because of its important importance, the presumption described in this Section should be followed. Additionally, it has been found that foreign decisions lose their value as evidence in court if the judge does not believe that they are consistent with local laws.

Abetment as to Suicide by a Married Women

The presumptions of aiding the suicide of a married woman by her husband or any of his relatives are covered by Section 113A. The court has outlined a few requirements to determine if a married woman’s suicide is inconsistent with the requirements stated in the provision. If it is, the court will presume that the husband or a member of his family encouraged the suicide. The requirements of this clause are:

  1. The suicide occurred within seven years of the marriage date; and
  2. Her spouse or a member of his family exposed her to cruelty in accordance with Section 498A of the IPC.

In Chhagan Singh v. State of Madhya Pradesh, the accused severely beat the victim at some location. To justify this criminal act, the accused claims that the victim had been stealing rice when the incident occurred. However, the victim committed suicide a short time after the occurrence. As there was no evidence of cruelty, and as Section 113A’s requirements are not met by the facts of this case, the court in this case found that the accused was not guilty of the offence listed in Section 113A of the Indian Evidence Act. As a result, Section 113A’s legal presumptions are not applicable in this case of murder.

Because there are other factors involved in the person’s death, it is not possible to apply the legal principles of 113A in a blind manner and one must understand how they are related. Only if her husband or any of his relatives had treated the women cruelly in any way can she benefit from the presumption of Section 113A.

The accused in Nilakantha Pati v. State of Orissa married the victim in April 1982 and received a dowry as compensation. However, the accused thereafter expressed a desire to buy a property, for which he urged the victim to obtain Rs 70,00 from her parents. She was tortured till she died in 1986 after failing to receive the money. The court judged the presumption to be rebuttable since the accused provided sound reasoning and logic to back his claims. The accused was cleared of violating Section 113A because the defence’s arguments were sufficient. The High Court stated that the presumption made in this case is rebuttable and that it might be raised if the facts of the case line up with the basics or the proper application of the law. And in this instance, the defendant rejected all of the court’s assumptions, leading to the defendant’s release.

In Mangal Ram & Anor v. State of Madhya Pradesh, the wife of the accused hasn’t been to her marital house in a while and has been living with her parents for a number of years. But a month after going back to her marital home, she killed herself. As a result, the court assumed that the accused is to blame for the lady’s death, and the case is covered under Section 113B of the Indian Evidence Act. However, her husband and her in-laws provided evidence that the death was not the result of causes that were treated cruelly. In that case, the court ruled that the presumption was rebuttable and that it could no longer be supported, leading to the accused’s acquittal. The High Court stated that the presumption made in this case is rebuttable and that it might be raised if the facts of the case line up with the basics or the proper application of the law. And in this instance, the defendant rejected all of the court’s assumptions, leading to the defendant’s release.

Abetment of Suicide to married Women for the purpose of Dowry

The Indian Evidence Act’s Section 114B addresses the presumptions relating to aiding a married woman’s suicide for dowry. This Section gives the court the authority to assume that the wife was tortured or subjected to cruelty in connection with the demand for dowry, and that the husband and his relative encouraged her to commit suicide. The court specifies a few prerequisites that must be met in order to raise any presumption relating to aiding dowry death while outlining the concept of Section 113B. The fundamental components of Section 113B and Section 113A of the Indian Evidence Act are identical. The presumption of Section 114B, however, only applies if the prosecution has particular proofs that the cause of death was cruelty, maltreatment, or harassment for dowry demand. This is a fine line between Sections 113A and 114B. As a result, according to this Section, the presumption is only valid when the prosecution establishes its case.

In the case of Hem Chand v. State of Haryana, the couple was married on May 24, 1962. After only two months of marriage, the lady fled her husband’s house and told her parents that her husband was wanting a TV and a refrigerator. After bearing with these demands, her father gave her about 6,000 rupees of his hard cash, and she left for her marital house. However, the husband’s thirst was unquenchable, and he once more requested her to fetch her home $25,000 because he wanted to purchase some real estate. The accused then took his wife to her parents’ house and demanded Rs. 25,000 before returning his wife. One year later, she returned to her marital residence with Rs. 15,000 and made a commitment to pay the remaining sum in a timely manner. She passed away from a strangulation in her husband’s house that same day, though. Assuming that the accused’s husband had been harsh to her and that her death may have been caused by the husband’s mistreatment for dowry, the trial court and both branches of the Supreme Court declared the accused guilty and sentenced to death.

The Supreme Court ruled in Shanti v. State of Haryana that the victim should die shortly after being harassed or treated cruelly for dowry. However, in this case, the local panchayat resolved the conflict and returned the wife to her house before she passed away, so that’s why. The evidence does not support the assumption that she was treated cruelly in order to raise dowry when she was returned to her matrimonial home, despite the fact that the facts appear to be so plain. As a result, in these circumstances, it is not possible to use Section 113B of the Indian Evidence Act or raise the presumption of dowry death.

In Baijnath and Others v. State of Madhya Pradesh, that’s what supreme Court elucidated, “One of the fundamental elements of dowry death under Section 304B of the Penal Code is that the women probably exposed to mercilessness either by the spouse or his family members with the end goal of dowry soon before her death and bring it as a fundamental element of Section 304B of IPC the indictment needs to demonstrate the association of the casualty’s death with the act of remorselessness by the husband or by his relative to request dowry and the association should be demonstrated for certain then just the court will place the case into the window of Section 113B of Indian Evidence Act.

May Presume

The idea of “presumption of certain facts by the court” is covered in Section 114 of the Indian Evidence Act. The Court may assume the existence of any truth that it believes is likely to have occurred while taking into account the usual progression of natural phenomena, human behaviour, and public and private business in connection to the specific facts of the case.


  1. Every negotiable document is assumed to have been drawn with due deliberation in mind.
  2. Things must continue till the opposite is proven, therefore if a property is thought to be an ancestral property, that is what will be assumed until the opposite is proven (Chito Mahtoo v Lila Mahto).
  3. The court may assume that if a person declines to respond to a question that is not required by law to be answered, the response would not be in his favour.
  4. If a guy is found in possession of stolen property soon after the theft, it is assumed that he is either the thief or has gotten the property knowing what it is, unless he can provide proof to the contrary.

Presumption of Law

Legal presumptions are those conclusions and convictions that the law itself makes or assumes. It can also be separated into presumptions of law that can be refuted and presumptions of law that cannot be refuted.

Rebuttable Presumptions (praesumptio iuris tantum)

Rebuttable presumptions are particular presumptions that are recognised as evidence of high quality and retain their value until the presumption is demonstrated to be false. Although it is difficult to gauge the scope of such assumptions because they are only true unless they are disproven, The simplest illustration of rebuttable presumptions is that it is extremely evident that a person who is in possession of stolen property is either a thief or a receiver.

One of the finest cases to use to illustrate a presumption is a matrimonial offence since the chances of obtaining proof are so slim compared to offences that occur inside the matrimonial home. As a result, the presumption is crucial in certain situations/crimes. Regarding the presumption in matrimonial offences, there are often three crucial elements, which are as follows:

  • Under Section 113A of the Indian Evidence Act, there is a presumption that a married lady who committed suicide within seven years of her marriage did so with assistance.
  • According to Section 113B of the Indian Evidence Act, there is a presumption that the dowry will die within seven years of the marriage.
  • According to Section 112 of the Indian Evidence Act, a child born during a marriage is the ultimate evidence of legitimacy.

In State of M.P. v. Sk. Lallu, a newlywed bride who had endured harsh beatings from her in-laws on a regular basis from the first day of her marriage till her death with complete burn injuries. The presumption outlined in Section 113A was used by the Court, who further clarified that it might be utilised to punish the accused.

Ir-rebuttable Presumption (praesumptio iuris et de iure)

No other persuasive evidence or argument can disprove such presumptions. As a result, the explained presumption falls under the category of conclusive presumption, which cannot be proven false. For instance, it is assumed that a child under the age of seven is incapable of committing any crime.

Conditions Where Court May Use the Presumption of Law To Ascertain Some Facts:

Presumption of Innocence (ei incumbit probatio qui dicit, non qui negat)

This legal principle states that the burden of proof is with the party who asserts the facts, not the party who disputes the fact. According to the presumption of innocence legal principle, everyone should be assumed to be innocent until proven guilty or until the court determines that the individual is responsible for unlawful activities, whichever comes first.

The High Court made some insightful remarks in Chandra Shekhar v. State of Himachal Pradesh, stating that the freedom of every individual is the primary goal of the constitution and that this right cannot be suspended by any means unless specified by the legislation itself. The conclusion is that a person must be deemed innocent unless and until their guilt is established.

The Supreme Court ruled in Dataram Singh v. State of Uttar Pradesh & Anr. that a person shall be presumed innocent unless and unless proven guilty.

Birth During Marriage

pregnancy during marriage

The Latin maxim “pater est quem muptice demonstrat” clarifies the fundamental notion that the man who marries a woman is the father of any sons or daughters born from that union. The Indian Evidence Act’s Section 112 addresses the legitimacy of a child born during the marriage. The Section suggests that if a kid is born while the pair is still legally married, this is conclusive evidence that the child is legitimate, and the only option for either party to refute this is to show that they had contact with each other prior to the marriage’s dissolution.

The legislature also explains that such a presumption is not only limited to providing legitimacy to the child but also to maintain the public morality so that the legitimacy of the child cannot be questioned. The main goal of the lawmaker institute is to grant legitimacy to the child born during a valid marriage.

To appreciate the general applicability, it is important to keep in mind that the application utilised under Section 112 stems from Section 4 of the same Act. Section 4 states that the court will assume that the person the woman married is the child’s father whenever there is a question about the legitimacy of children born during a legal marriage. Because of this, the court must presume that there is “conclusive proof” in order to fulfil the legislative intent. The legitimacy of such a kid can only be refuted if the opposing party can demonstrate that there was no marriage consummated, just like no law is absolute. Which implies that no test, not even the DNA test, can refute the assumption.

The Supreme Court stated in Revanasiddappa v. Mallikarjun that the Preamble of our Constitution, which emphasises equality, equity, equal opportunity, and respect for each person’s dignity, best expresses the Constitution’s aim in a general way. The court must consider whether an illegal, immoral, or illegitimate relationship between a parent does not impair the dignity of the child born out of such relationships while making its decision in such cases because that is one of the goals of the constitution, which states that everyone has a separate and individual dignity of his or her own. Since a child born from such a relationship is innocent and has all the rights granted to him by the Constitution, his or her position must be on par with that of a child born from a legally binding marriage.

In Shanta Ram v. Smt. Dargubai, the Bombay High Court stated its position that children of invalid marriages would be considered genuine children regardless of any nullity, even though they would not be granted the same succession rights as the original successor.

The Supreme Court stated in its observations in Gautam Kundu v. State of West Bengal that “Courts have no authority to direct blood tests to question the validity of the kid.”

  • There is only one way for the husband to dispel this notion, and in order to do so, he must persuade the court that he has no access to end the marriage.
  • The repercussions of a blood test that favours a husband who is contesting the child’s legitimacy should be carefully considered by the court. And what if the additional effect seriously impairs the legitimacy of the child or renders the mother an impure/unchaste woman?

Presumption of Death

According to Sections 107 and 108 of the Indian Evidence Act, when a person has been missing for a long time, the law presumes that he is dead. This is how the presumption of death is defined. According to Section 108 of this Act, there must be no evidence of the person’s existence in society for a period of time, in this case 7 years.

The court ruled in Balambal v. Kannammal that the presumption of death could only be used if the person’s death or nonexistence was established at the time the presumption was raised in court and that no one could use such a presumption to create any kind of death record for the called individual.

The learned judge’s dissenting opinion in T.K. Rathnam v. K. Varadarajulu states in his ruling that the presumption of a person’s existence or death is always rebuttable. He further pointed out that determining the precise time of death is a matter of evidence, not assumption.

Presumption of Sanity

The term “presumption of sanity” describes the mental state of a defendant in a criminal case. Until someone can demonstrate that the court’s presumptions are incorrect, the court will specifically assume that everyone is sane and suitable for their mental ability.

Presumption of Constitutionality

The idea that all statutes, bills, policies, guidelines, etc., created by various levels of government are compliant with constitutional requirements is known as the presumption of constitutionality. The court generally assumes that the laws are upholding the constitution’s mandates and assisting in its fulfilment. However, the individual who reads these laws in a way that makes them incompatible with constitutional requirements must then establish that case.

Presumption of Possession

This assumption is addressed in Section 110, which states that the court will assume that the person who is in possession of something and who claims to be the owner is actually the owner. These are typically rebuttable presumptions, and they retain their validity until the affecting party provides evidence to the contrary.

Mixed Presumptions (Presumption of Fact and law both)

Mixed presumptions combine the several ideas that were discussed before in this essay. The presumption is referred to as a Mixed Presumption when the court applies a blend of multiple presumptions, such as Presumption of Facts and Presumption of Law, in its inferences. Only the English, which deals with real property law specifically, reflects the ideas of such presumptions. But the presumptions principles are explicitly stated in the Indian legal system, and they are covered by the Indian Evidence Act. There are only a few clauses in the Indian Evidence Act that address both the presumption of law and the presumption of fact.

The scope of this law is not limited to this; it also contains other clauses that deal with the Indian Court’s discretionary ability to raise presumptions, such as the Principles of May Presume, Shall Presume, and Conclusive Proof.


Presumptions are arbitrary additions to the law that do not need proof of a fact. A fact does not need to be proven when a court assumes it. Under the Indian Evidence Act of 1872, presumptions’ use may be a mostly uncharted territory. However, how it is applied has significant ramifications for how we see the ‘burden of proof’ on the prosecution and defence. When deciding the case in Tukaram v. State of Maharashtra, the court defended the necessity of such presumptions and took into account the facts of the Mathura Rape Case. The Court also clarified that the use of presumptions has a broader application because they aid in both the case’s direction and the victim’s quick trial. As a result, this assumption can effectively aid the judiciary in delivering prompt and thorough justice to society.


Author: Arryan Mohanty,
Symbiosis Law School, Nagpur/Student

Leave a Comment