Presumptions 112-114

• Presumptions under law during certain circumstances or cases.

• Under these presumptions the burden of proof is on the accused to
prove his case against the presumption. In these cases, presumptions
work as an exception to the general rules of burden of proof.
• An “evidentiary” presumption is to be distinguished from a
“conclusive” presumption. Evidentiary presumptions are rebuttable,
whereas conclusive ones are irrebuttable.
Section 4
• “May presume” the Court may presume a fact, it may either regard
such fact as proved, unless and until it is disproved, or may call for
proof of it. (May- S. 113A, 114)
• “Shall presume” the Court shall presume a fact, it shall regard such
fact as proved, unless and until it is disproved. (Shall- S. 113B)
• “Conclusive proof” 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. (Conclusive- S. 112)
S. 112- Birth during marriage, conclusive
proof of legitimacy
• The fact that any person was born during the continuance of a valid
marriage between his mother and any man, or within 280 days after
its dissolution, the mother remaining unmarried, shall be conclusive
proof that he is the legitimate son of that man
unless it can be shown that the parties to the marriage had no access
to each other at any time when he could have been begotten (running
exception)
S. 112- Birth during marriage, conclusive
proof of legitimacy
• Presumption 1- a child born between woman and man during a valid
marriage is conclusive proof that he is the legitimate child of the man
• Presumption 2- Within 280 days of dissolution of such a marriage
where the mother is unmarried – shall be conclusive proof that the
child is the legitimate child of the man
S. 112- Birth during marriage, conclusive
proof of legitimacy
• Presumption of birth during marriage- conclusive proof of legitimacy.
• Based on the maxim- pater rest quern nuptioe- he is the father whom the
marriage indicates.
• Protection from stigmatization-no child is basterdised – due to actions of
father and/or mother- child should not suffer
• odiosa et inhonesta non sunt in lege praesumenda- nothing odious or
dishonorable will be presumed by the law. The law presumes against vice
and immorality.
• In a civilised society it is important to presume legitimacy of a child born
during marriage and whose parents has access to each other for the
purpose of sexual intercourse.
• Based on public morality and public policy.
S. 112- Birth during marriage, conclusive
proof of legitimacy
• Presumption arises only incase of child born to a married couple. If
there is valid marriage the presumption stands no matter how soon
the birth occurs.
• Legitimacy is conclusive , no matter how soon the birth occurs after
the marriage.
• Sethu And Ors. v. Palani Alias Thirumeni Thevan- MP HC 1925- even if
the child is born a few days after the marriage, the presumption
under S. 112 will still apply.
Exception to Section 112
• Non- Access at time of conception and not time of birth.
• Conclusive proof u/s 4- the court will not allow evidence to be given
on the question
• Unless it can be shown that the parties to the marriage had no access
to each other at any time when the child could have been begotten.
• Non-access during the possibility of conception of the child, parents
did not have opportunity of sexual intercourse
• Ex- physical incapacity, impotency, distance, sterilization etc.
S. 112- Birth during marriage, conclusive
proof of legitimacy
• S.112 refers to the time of birth of the child as deciding factor and not
the time of conception of that child. Time of Conception is considered
only to see if husband has access or non-access.
• General rule for presumption- date of birth is considered.
• For the purpose of section 112 – only paternity is in question and not
the maternity. Maternity is fact and paternity is surmise.
Nandlal Wasudeo Badwaik vs Lata Nandlal
Badwaik & Anr, 2014- DNA test
• Wife and daughter- demanded maintenance u/s 125 CrPC- court
allowed maintenance. Husband objected to legitimacy of the
daughter and demanded a DNA test.
• SC- allowed DNA testing- report showed that husband is not the
biological father of the child.
• Wife objected to DNA report and asked for another DNA- 2nd DNA
reports also showed that husband is not the biological father of the
child.
• Non of the parties objected to the DNA test when proposed, wife
objected only after the results.
Nandlal Wasudeo Badwaik vs Lata Nandlal
Badwaik & Anr, 2014- DNA test
• Issue- Whether DNA test would be sufficient to hold that the
appellant is not the biological father of respondent no. 2, considering
what has been provided under S.112 of the Evidence Act.
• Class opinion?
Nandlal Wasudeo Badwaik vs Lata Nandlal
Badwaik & Anr, 2014- DNA test
• Respondents- the DNA test cannot rebut the conclusive presumption
under Section 112 of the Evidence Act. Respondent no. 2, therefore,
has to be held to be the appellant’s legitimate daughter.
• In support of the submission, reliance has been placed on a decision
in the case of Kamti Devi v. Poshi Ram, (2001) 5 SCC 31 -“The result of
a genuine DNA test is said to be scientifically accurate. But even that
is not enough to escape from the conclusiveness of S. 112 of the Act
e.g. if a husband and wife were living together during the time of
conception but the DNA test revealed that the child was not born to
the husband, the conclusiveness in law would remain irrebuttable. “
Nandlal Wasudeo Badwaik vs Lata Nandlal
Badwaik & Anr, 2014- DNA test
• As stated earlier, the DNA test is an accurate test and on that basis, it is
clear that the appellant is not the biological father of the girl- child.
• However, at the same time, the condition precedent for invocation of
Section 112 of the Evidence Act has been established and no finding with
regard to the plea of the husband that he had no access to his wife at the
time when the child could have been begotten has been recorded.
• Admittedly, the child has been born during the continuance of a valid
marriage. Therefore, the provisions of Section 112 of the Evidence Act
conclusively prove that respondent No. 2 is the daughter of the appellant.
But, the DNA test reports, based on scientific analysis, suggest that the
appellant is not the biological father.
Nandlal Wasudeo Badwaik vs Lata Nandlal
Badwaik & Anr, 2014- DNA test
• S. 112 of the Evidence Act was enacted at a time when the modern
scientific advancement and DNA test were not even in contemplation of
the Legislature. The result of DNA test is said to be scientifically accurate.
• Although S. 112 raises a presumption of conclusive proof on satisfaction of
the conditions enumerated therein but the same is rebuttable. The
presumption may afford legitimate means of arriving at an affirmative legal
conclusion.
• Distinction between a legal fiction and the presumption of a fact - Legal
fiction assumes existence of a fact which may not really exist. However
presumption of a fact depends on satisfaction of certain circumstances.
Those circumstances logically would lead to the fact sought to be
presumed. Section 112 of the Evidence Act does not create a legal fiction
but provides for presumption.
Nandlal Wasudeo Badwaik vs Lata Nandlal
Badwaik & Anr, 2014- DNA test
• The court said - there is no need or room for any presumption. Where
there is evidence to the contrary, the presumption is rebuttable and
must yield to proof. Interest of justice is best served by ascertaining
the truth and the court should be furnished with the best available
science and may not be left to bank upon presumptions, unless
science has no answer to the facts in issue.
• Thus - when there is a conflict between a conclusive proof envisaged
under law and a proof based on scientific advancement accepted by
the world community to be correct, the latter must prevail over the
former.
Nandlal Wasudeo Badwaik vs Lata Nandlal
Badwaik & Anr, 2014- DNA test
• the husband’s plea that he had no access to the wife when the child
was begotten stands proved by the DNA test report and in the face of
it.
• the court cannot compel the appellant to bear the fatherhood of a
child, when the scientific reports prove to the contrary.
• that an innocent child may not be bastardized as the marriage
between her mother and father was subsisting at the time of her
birth, but the DNA test reports cannot be ignored
• Maintenance to wife to be paid. Maintenance for daughter was set
aside by the court.
Section 113
• S.113- no importance post independence- due to be removed.
S. 113A- Presumption as to abetment of
suicide by a married woman.
• When the question is whether the commission of suicide by a woman
had been abetted by her husband or any relative of her husband and
it is shown that she had committed suicide within a period of seven
years from the date of her marriage and that her husband or such
relative of her husband had subjected her to cruelty.
the court may presume, having regard to all the other circumstances
of the case, that such suicide had been abetted by her husband or by
such relative of her husband.
For the purposes of this section, “cruelty” shall have the same meaning
as in section 498A of IPC.
Section 113A
• For attracting 113A- following must be there:
1. Suicide committed by a Married Woman
2. Suicide must be abetted by the husband or his relatives
3. Suicide must be committed within a period of 7 years
4. There must be cruelty by husband or his relatives. As defined u/s
498A of IPC
Section 113A
• Burden of Proof is on the husband and his relatives to show that they
had not abetted the suicide.
• All other circumstances of the case- may presume- court has
discretionary power to not apply this presumption, depending on the
facts of the case.
• Presumption is not mandatory but discretionary.
• Requirement of establishing cause and effect relationship between
cruelty and suicide – whether the alleged cruelty led to the suicide
Section 113A
• Section 498 IPC
• In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 - the court should be
extremely careful in assessing the facts and circumstances of each
case and the evidence adduced in the trial for the purpose of finding
whether the cruelty meted out to the victim had in fact induced her
to end her life by committing suicide.
• Jagdish Chunder v State of Haryana, 1988- drinking problem and
coming late at night by the husband does not amount to cruelty.
Hans Raj v. State of Haryana, (2004) 12 SCC 257

• Prosecution- one Jeeto Rani, wife of the appellant, committed suicide on account of the
cruelty and harassment meted out to her by her husband- Hans Raj, the appellant.
• Hans Raj was married to Jeeto Rani and Naro, sister of Hans Raj was married to Fateh
Chand, brother of Jeeto Rani.
• On August 24, 1986, Munshi Ram- father of Jeeto Rani lodged an FIR. The allegations in
the FIR were to the following effect that the appellant was addicted to 'Bhang' and did
not pay any attention towards his domestic affairs. Whenever Jeeto attempted to
prevent her husband from taking Bhang he to used to assault her.
• Jeeto Rani had reported this matter to her parents, but they persuaded her to go back to
her matrimonial home. On day Hans Raj and Jeeto came to the house of Munshi Ram
when Hans Raj stated that he would not keep Jeeto with him because his sister Naro was
being harassed by Fateh Chand, the brother of Jeeto.
• It was alleged by Munshi Ram in the FIR that the appellant had told them that since
Fateh Chand, was harassing his sister he would take revenge.
Hans Raj v. State of Haryana, (2004) 12 SCC 257

• In the FIR it was stated that Jeeto had committed suicide by taking
poison being fed up by the beatings and the harassment caused to
her by her husband.
• The medical evidence on record as well as the chemical examiner's
report established the fact that Jeeto died of poisoning.
• The FIR had only two allegations- firstly, that there were frequent
quarrels, sometimes resulting in physical assault, between the Hans
Raj and Jeeto on account of his being addicted to consumption of
'Bhang', and secondly, that the appellant was aggrieved by the fact
that his sister was not being properly looked after by his brother-in-
law namely, Fateh Chand.
Hans Raj v. State of Haryana, (2004) 12 SCC 257

• Later, the father of the deceased stated that the appellant was
addicted to liquor and bhang and whenever Jeeto attempted to
persuade him to give up the same he used to misbehave with her and
even beat her.
• Also, the appellant had then complained to him that Jeeto was not
good looking and therefore he was not going to take her back and
that he intended to perform a second marriage.
Hans Raj v. State of Haryana, (2004) 12 SCC 257

• In cross-examination, it appears that the case sought to be made out at the

Trial that the appellant was addicted to liquor was not stated in the course
of investigation & in FIR.
• Similarly, Munshi Ram, had not stated in the course of investigation that
the appellant had complained that Jeeto was not good looking. It also
appears that in the course of investigation he had not stated about Jeeto
having told him that the accused had been beating her.
• Brother of the deceased also made similar improvements at the time of
deposition. In his statement before the police in the course of investigation
there is no mention about the fact that the appellant was addicted to
liquor and he did not state that the accused had told him that his sister was
not good looking, nor did he state that his sister had told him that the
accused felt aggrieved because she was not good looking.
Hans Raj v. State of Haryana, (2004) 12 SCC 257

• Appellant: Kept his wife with love and affection- wife was distressed
for having given birth to a daughter. She was also keeping unwell for
some time.
• Held- Noticed the fact that Munshi Ram, had considerably improved
his case at the trial. The allegations that the appellant used to taunt
Jeeto because she was not good looking, or that he was going to re-
marry, or even regarding beatings to her, were all in the nature of
improvements. The allegation that the appellant was addicted to
liquor also did not find recorded in the statement of the witnesses
before the police
Hans Raj v. State of Haryana, (2004) 12 SCC 257

• It was highlighted that the Trial Court observed that the appellant's remark
that his wife was not good looking and to his liking and that he was going
to re-marry was "a gravest of abetment on the part of the husband leading
to the wife to commit suicide". The trial court while recording this
conclusion completely lost sight of its own finding that this part of the story
was clearly an improvement and that no such allegation was made either
in the FIR or in the course of investigation.
• FIR stated that the appellant was aggrieved of the fact that his sister Naro
was not properly treated by Fateh Chand, who was the brother of Jeeto.
The only other allegation found in the FIR was that the appellant was
addicted to 'Bhang' and whenever Jeeto objected to it, it resulted in a
quarrel and sometimes physical assault on Jeeto.
Hans Raj v. State of Haryana, (2004) 12 SCC 257

• Considering the evidence on record the Court was satisfied that the
prosecution has sought to improve its case at the trial by introducing
new facts and allegations which were never stated in the course of
investigation.
• Therefore, prosecution has been able to establish its case only to the
extent that the appellant was addicted to 'Bhang' which was opposed
by his wife Jeeto and on account of such opposition there used to be
frequent quarrels and may be on some occasions Jeeto was assaulted
by the appellant. Beyond this we find the other allegations made by
the prosecution to be unacceptable.
Hans Raj v. State of Haryana, (2004) 12 SCC 257

• Issue: whether in the facts and circumstances of the case the appellant can be convicted of the
offence u/s 306 IPC with the aid of the presumption u/s 113 A of the Indian Evidence Act.
• In this case there is no direct evidence to establish that the appellant either aided or instigated
the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In
the absence of direct evidence the prosecution has relied upon S. 113A.
• Even if these facts are established the Court is not bound to presume that the suicide had been
abetted by her husband. S. 113A gives discretion to the Court to raise such a presumption,
considering all the other circumstances of the case, which means that where the allegation is of
cruelty it must consider the nature of cruelty to which the woman was subjected, having regard
to the meaning of word cruelty in Section 498-A IPC
• The mere fact that a woman committed suicide within 7 years of her marriage and that she had
been subjected to cruelty by her husband, does not automatically give rise to the presumption
that the suicide had been abetted by her husband.
• One of the circumstances which has to be considered by the Court is whether the alleged cruelty
was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health of the woman.
Section 113A

• Cruelty must be of such nature that it led to the suicide.

• Presumption only applicable against husband. If husband commits
suicide due to cruelty by wife- 113A shall not apply.
• No cruelty- no suicide- no 113A
113B- Presumption as to dowry death.
• When the question is whether a person has committed the dowry
death of a woman and it is shown that soon before her death such
woman had been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry,
• the court shall presume that such person had caused the dowry
death.
• Explanation- For the purposes of this section, “dowry death” shall
have the same meaning as in Section 304B of IPC.
Section 113B
• Soon before death- woman subjected to cruelty or harassment- with
any demand of dowry- 113B
• 304B IPC- dowry death- punishable(7years to life)- non-bailable and
cognizable offence.
• Demand for dowry must be proved.
• 304BIPC and 113B IEA were added by Dowry Prohibition Act, 1986.
Section 113B
• Essential condition for raising presumption of dowry death:
• Presumption can arise only if accused is tried for offence under
section 304B IPC
• Woman was subjected to cruelty
• Cruelty was in connection with demand for dowry
• Such cruelty occurred soon before death of woman – section does
not employ any time before her death.
Court may presume existence of certain facts- Section 114

• The Court may presume the existence of any fact which it thinks likely
to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their
relation to the facts of the particular case.
• Read all the illustraction.
Section 114
-General principle
• Discretionary power with the court
• Access if the fact occurred, with regard to common course of
-natural events
-human conduct
-public and private business
• S.N. Bose v St. of Bihar, 1968
Section 114
Illustration a- Possession of the article – prosecution must establish
beyond reasonable doubt-

1. Ownership of article
2. Theft was committed
3. Recent & Exclusive possession
Section 114
Illustration b- Accomplice in offence – r/w S. 133 IEA

Accomplice can be of three kinds-

• Someone who planned or instigated the crime
• Who played an active role in committing the crime and accompanying
• Those who assisted after the crime has taken place. Ex- in fleeing,
erasing evidence etc.
- Accomplice is unworthy or credit unless corroborated in material
particulars- presumption discretionary.
Section 114
• Illustration b- example- Maya commits murder- orders an uber to flee
the crime scene- uber driver without knowing helps her flee-
becomes an accomplice- testimony of uber driver not to be believed
unless can be proved. BoP on the driver.
Section 114
• Illustration C- Presumption as to Bill of Exchange – court must regard
other material fact and circumstance. All things are presumed to be
rightly. BoE accepted for good consideration.
• Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay, AIR
1961 SC 1316- S. 118 Negotiable Instruments Act – presumption
applicable to all kinds of instruments, when endorsed, negotiated or
transferred for consideration. Applied to parties to instrument Court
is bound by presumption
• Section 114 IEA – general principle- discretionary
Kundan Lal Rallaram v. Custodian, Evacuee
Property, Bombay, AIR 1961 SC 1316
• One Abdul Satar owned a factory named Empire Tin Factory in Bombay. On
partition of the country, he migrated to Pakistan.
• One Nathuram Ramaldas, a resident of Karachi, owned a shop there named
Indian Electric and Trading Company.
• Abdul Satar and Nathuram Ramaldas agreed to enter into a transaction of
exchange in respect of the said properties. For the purpose of exchange the
Empire Tin Factory at Bombay was valued at a sum or Rs. 1,48,000/- and the
Indian Electric and Trading Company at Karachi was valued at Rs. 1,00,000/-.
• In respect of the balance of Rs. 48,000/- payable by Nathuram Ramaldas to Abdul
Satar, the former paid to the latter a sum of Rs. 11,000/- in cash and executed a
promissory note dated December 24, 1947, in his favour for the balance of Rs.
37,000/-.
• On March 22, 1948, Abdul Satar endorsed the said promissory note in favour of
the Appellant Kundan Lal Rallaram.
Kundan Lal Rallaram v. Custodian, Evacuee
Property, Bombay, AIR 1961 SC 1316
• It was contended that the said endorsement was made in
consideration of the transfer of the stock of the Appellant's business
in radios and gramophones in Karachi.
• On November 13, 1948, the Appellant made a demand on Nathuram
Ramaldas for the payment of the amount due under the promissory
note, but Nathuram Ramaldas denied his liability.
• Thereupon, having made a demand for payment on Abdul Satar and
having received his reply repudiating his liability. Nathuram Ramaldas
filed a suit in the High Court at Bombay against Abdul Satar and the
executant of the promissory note for the recovery of the amount due.
Kundan Lal Rallaram v. Custodian, Evacuee
Property, Bombay, AIR 1961 SC 1316
• Contention of Appellant:
• The finding of the Custodian-General was vitiated by the fact that he had
held erroneously that the presumption under Section 118 of the
Negotiable Instruments Act in favour of the Appellant that the
consideration had passed for the endorsement of the promissory note was
rebutted by evidence and circumstances in the case, when as a matter of
fact the Respondent did not produce any evidence in rebuttal.
• The relevant part of Section 118 of the Negotiable Instruments Act reads:
• Until the contrary is proved, the following presumptions shall be made:-
that every negotiable instrument was made or drawn for consideration,
and that every such instrument, when it has been accepted, indorsed,
negotiated or transferred, was accepted, indorsed, negotiated or
transferred for consideration.
Kundan Lal Rallaram v. Custodian, Evacuee
Property, Bombay, AIR 1961 SC 1316
• Under the Evidence Act, The phrase "burden of proof has two meanings-
one the burden of proof as a matter of law and pleading and the other the
burden of establishing a case; the former is fixed as a question of law on
the basis of the pleadings and is unchanged during the entire trial, whereas
the latter is not constant but shifts as soon as a party adduces sufficient
evidence to raise a presumption in his favour.
• The evidence required to shift the burden need not necessarily be direct
evidence, i.e., oral or documentary evidence or admissions made by
opposite party; it may comprise circumstantial evidence or presumptions
of law or fact.
• Therefore, the burden initially rests on the Plaintiff who has to prove that
the promissory note was executed by the Defendant.
Kundan Lal Rallaram v. Custodian, Evacuee
Property, Bombay, AIR 1961 SC 1316
• As soon as the execution of the promissory note is proved, the rule of
presumption laid down in Section 118 of the Negotiable Instruments Act
helps him to shift the burden to the other side.
• The burden of proof as a question of law rests, therefore, on the Plaintiff;
but as soon as the execution is proved, Section 118 of the Negotiable
Instruments Act imposes a duty on the Court to raise a presumption in his
favour that the said instrument was made for consideration.
• This presumption shifts the burden of proof in the second sense, that is,
the burden of establishing a case shifts to the Defendant. The Defendant
may adduce direct evidence to prove that the promissory note was not
supported by consideration, and, if he adduced acceptable evidence, the
burden again shifts to the Plaintiff, and so on.
Kundan Lal Rallaram v. Custodian, Evacuee
Property, Bombay, AIR 1961 SC 1316

• The Defendant may also rely upon circumstantial evidence and, if the
circumstances so relied upon are compelling, the burden may likewise
shift again to the Plaintiff. He may also rely upon presumptions of
fact, for instance those mentioned in Section 114 and other sections
of the Evidence Act.
Section 114
• Illustration d- that a thing or state of things which has been shown to
be in existence within a period shorter than that within which such
things or states of things usually cease to exist, is still in existence;
• Presumption of continuity of things unless rebutted.
Ex- two parties are staying separately after marriage. Presumption of
marriage- unless proved otherwise
Section 114
• Illustration e- that judicial and official acts have been regularly
performed; ex- judges are passing judgements, doctors are operating
on patients.
• Illustration f- that the common course of business has been followed
in particular cases; ex- you ordering something-paid for it- you will
receive the parcel.
Section 114
• Illustration g- that evidence which could be and is not produced
would, if produced, be unfavorable to the person who withholds it.
Ex- if Tina has possession/knowledge of an evidence and still did not
produce it in the court- court will presume that such evidence was
unfavorable to her case.
• Illustration h- that if a man refuses to answer a question which he is
not compelled to answer by law, the answer, if given, would be
unfavourable to him;
• Read bare act