2) Presumptions.pptx

PRESUMPTIONS Prof. (Dr.) Y.F. Jayakumar Professor of Law MNLU Aurangabad

PRESUMPTIONS Inference drawn by the court  Affirmation on the basis of probable reasoning  Inference on the basis of natural course of events  Presumption is a hunch, guess, and probability Ex : Possession of stolen goods (Either thief / Illegal Possession) Ex : Possession of property ( Either owner / Tenant) Ex : Execution of Promissory note (for Valid Consideration) 

DEFINITION 

“Presumption is a rule of law that Courts and

Judges shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved.” - James Stephen

KINDS OF PRESUMPTION 

Presumption of fact: inference drawn on the basis of natural events, human conduct. Ex : Letter posted Ex : Man refused to answer a question

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Presumption of Law: inference drawn on the basis of certain legal principles. Ex : Section 82 IPC

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Mixed presumption: inference drawn on the basis of facts and law. Ex : Section 83 IPC

PRESUMPTIONS UNDER INDIAN EVIDENCE ACT (SEC. 4)

PRESUMPTIONS & INDIAN EVIDENCE ACT

May Presume (Secs. 86-88, 88A 90A, 113A and 114)

Shall Presume (Secs. 79-85, 89, 105, 111A, 113B and 114A)

Conclusive Proof (Secs. 41, 112 and 113)

MAY PRESUME 

Whenever it is provided by this Act that 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; Presumptions as to genuineness and accuracy of Certified copies of

foreign judicial records (Section 86) Presumptions as to books, maps and charts produced for inspection of the court. (Section 87) Presumptions as to telegraphic messages produced before the court of law.(Section 88) Presumptions as to electronic messages produced before the court of law. (Section 88-A) Presumptions as to genuineness of 30 years old document. (Section 90) Presumptions as to genuineness of 5 years old electronic record. (Section 90-A) Presumptions as to abetment for commission of suicide by a married woman (Section 113-A) Presumptions as to existence or non-existence of certain facts. (Section 114) 

 

SHALL PRESUME 

Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved;  Presumption as to genuineness of certified copies (Section 79)  Presumption as to documents produced as record of evidence (Section 80)  Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents (Section 81)  Presumption as to Gazettes in electronic form (Section 81-A)  Presumption as to document admissible in England without proof of seal or signature (Section 82)  Presumption as to maps or plans made by authority of Government (Section 83)  Presumption as to collections of laws and reports of decisions (Section 84)  Presumption as to powers of attorney (Section 85)  Presumption as to electronic agreements (Section 85-A)  Presumption as to electronic records and digital signatures (Section 85-B)  Presumption as to Digital Signature Certificates (Section 85-C)  Presumption as to execution of documents, not produced (Section 89)  Burden of proving that case of accused comes within exceptions (Section 105)  Presumption as to custodial rape cases (Section 111-A)  Presumption as to dowry death (Section 113-B)  Presumption as to absence of consent in prosecutions for rape (Section 114-A)

CONCLUSIVE PROOF 

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When one fact is declared by this Act to be the 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. Section 41: Judgment in rem Section112: Legitimacy of a child Section113: Notification of the Government under the Govt. of India Act, 1935 regarding cession of any British territory into native state

CASE ANALYSIS FOR CONCLUSIVE PROOF U/S. 112 “Maternity is always certain. Paternity is a matter of inferences.” 

Section 112 of the IEvA, 1872 “Birth during marriage, conclusive proof of legitimacy” basically it relates to the legitimacy of a child born during wedlock. The law presumes that if a child is “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…”, it is conclusive proof of its legitimacy unless it can be proven that the parties to the marriage did not have any access to one another.

CASE ANALYSIS FOR CONCLUSIVE PROOF U/S. 112 Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 Facts: • The marriage between the parties Shashwati Kundu & Goutam Kundu took place on 16th January 1990. •

In the month of April, 1990 she conceived, on coming to know that she was pregnant, the appellant and the family members did not want her to beget a child. Therefore she was forced to undergo abortion which was refused by the second respondent.

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Smt. Shaswati Kundu gave birth to a daughter on 3rd January 1991.

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She was subjected to Cruelty and the O.P Smt. Shaswati Kundu, filed for maintenance under section 125, CrPC for herself and her minor child against her husband Goutam Kundu.

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The husband disputed the paternity of the child and prayed before the Court below for blood group test of the child with a view to proving that it was somebody else through whom the wife conceived the child and consequently he was not liable to pay maintenance for the child which is not his child.

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The learned AddCJM, Alipore Court by its impugned order dated the 1st February, 1992 rejected the application of the husband. Matter appealed in HC which upheld lower court on further appeal before SC.

CASE ANALYSIS FOR CONCLUSIVE PROOF U/S. 112 Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 Issues: Whether in law the investigation of paternity of child by, blood group test can at all be embarked upon in view of the specific provision of section 112 of the Indian Evidence Act, 1872? Observation: IN the present case the marriage between the parties is not disputed nor is it disputed that the child was born during the continuance of that marriage. In view of these undisputed facts a conclusive presumption there therefore arises under section 112 not only that the child is the child of the husband but also that the child is the legitimate child of the husband and no evidence for disproving this conclusive presumption is permissible under the Indian Law except to a very limited extent. 

CASE ANALYSIS FOR CONCLUSIVE PROOF U/S. 112 Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 1.

That the Courts in India cannot order blood tests as a matter of course.

2.

Whenever applications made in such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

3.

There must be a strong prima facie case in that the husband must establish nonaccess in order to dispel the presumption arising under S.112.

4.

The court must carefully examine what would be the consequences of ordering the blood test; whether it would have the effect of branding a child as a bastard and his mother as an unchaste woman.

5.

No one can be compelled to give the sample for analysis.

6.

The apex court further held that the object of S.112 was to overcome the evil of illegitimacy and save blameless children from being ‘bastardized’.

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NOTE: Section 112 of the Act provides a very limited exception to the presumption of legitimacy. A valid marriage may not be conclusive proof if it can be shown that the parties to the marriage had no access to each other during time of conception. This has to be proved beyond reasonable doubt and not just mere balance of probabilities.

SUPREME COURT ON PRESUMPTIONS

Rajbabu Vs Madhya Pradesh (AIR 2008 SC 3212)

Mohan Lal v. State of Punjab, (2013) 12 SCC 519

PRESUMPTIONS UNDER OTHER STATUTES •Indian Penal Code •Code of Criminal Procedure •Code of Civil Procedure •Negotiable Instruments Act •Prevention of Corruption Act •Customs Act •Information Technology Act etc.