Presumptions
Meaning of presumption
‗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 can be classified into certain categories:
1. Presumption of fact or Natural Presumption or May Presume (Section 86–88, 90, 113A and 114)
2. Presumption of law or Artificial Presumption–
a. Rebuttable Presumptions of Law or Shall Presume (Section 79–85, 105, 111A, 113B and
114A)
b. Irrebuttable Presumptions of Law or Conclusive Proof (Section 41, 112 and 113)
3. Mixed presumption
1. Presumption of fact
Presumptions of fact are those inferences which are naturally and logically derived on the basis
of experience and observations in the course of the nature or the constitution of the human mind
or springs out of human actions.
These are also called as material or natural presumptions.
These presumptions are in general rebuttable presumptions.
2. Presumption of law
Presumptions of law are those inferences which are said to be established by law.
It can be subdivided into rebuttable presumptions of law and irrebuttable presumptions of
law.
Rebuttable presumptions of law : are those presumptions of law which hold good until they are
disproved by evidence to the contrary.
Irrebuttable presumptions of law : are those presumptions of law which are held to be
conclusive in nature. They can not be overturned by any sort of contrary evidence however
strong it is.
3. Mixed presumption
Mixed presumptions are certain inferences which can be considered as observations of law due to
their strength or importance.
There are also known as presumptions of mixed law and fact and presumptions of fact
recognized by law.
Section 4 of the Indian Evidence Act; 1872 provides for three types of presumptions namely,
1. May Presume
2. Shall Presume
3. conclusive Proof
May Presume:
1. The word ―may‖ itself denote ‗expressing or seeking permission‘. Example: ―May I come in, Sir.‖
Giving the permission depends upon the discretion of the teacher or boss, as the case may be.
―May presume‖ is based upon this concept.
2. The first clause of Sec. 4 of the Evidence Act defines ―may presume‖.
3. According to Sec. 4, whenever it is provided by this Act that the Court may presume a fact,—
a. It may either regard such fact as proved, unless and until it is disproved; or
b. It may call for proof of it.
4. The word provided in the first clause is weaker than the word directed in the second clause.
5. The expression may presume gives a wide discretion to the Court,—
a. To presume a fact as proved; or
b. To call for proof of it.
6. Sections 86 to 90-A, 113-A, 114 and 114-A of the Evidence Act provide the necessary presumptions
for ―may presume‖.
7. The presumptions under the first clause of Sec. 4 (May Presume) may also be called as
―Presumptions of Fact”; “Natural Presumptions”. “Permissive Presumptions”; “Rebuttable
Presumptions”.
8. These presumptions do not constitute a branch of jurisprudence.
9. These are natural, permissive and rebuttable.
Shall Presume:
1. The word ‗shall‘ itself denote a ―strong assertion or intention or determination‖. Example: ―I shall go
to picture.‖ ―Shall presume‖ is based upon this concept.
2. The second clause of Sec. 4 of the Evidence Act defines ―shall presume‖.
3. According to Sec. 4, 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.
4. The word directed in the second clause is stronger and determinative than the word provided in the
first clause.
5. The expression shall presume gives no discretion to the Court, but to accept a fact as proved, unless
and until it is disproved.
6. Sections 79 to 85-C, 89 and 105,111-A, 113-B of the Evidence Act provide necessary presumptions
for ―shall presume‖.
7. The presumptions under the Second Clause of Sec. 4 (Shall Presume) may also be called as
“Presumptions of Law”; “Artificial Presumptions”; “Obligatory Presumptions”; “Rebuttable
Presumptions of Law”.
8. These presumptions constitute a branch of jurisprudence.
9. These are artificial, obligatory and compelling.
Conclusive proof
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.
The phrase „Conclusive proof or Irrebuttable of Law is found in Sections 41, 112, and 113 of the
Evidence Act and S. 82 of the Indian Penal Code.
Section 41 ―Relevancy of certain judgments in probate, etc. Jurisdiction‖
Section 112 ―Birth during marriage, conclusive proof of legitimacy‖
Section 113 ―Proof of cession of territory‖
Section 82 IPC Nothing is an offence done by child under 7 years
For Example: – ‗A‘ and ‗B‘ are married but divorced. When the question arises whether ‗A‘ and ‗B‘ are
husband and wife, if the decree of divorce is submitted to the court, the court shall conclusively presume
that they are no longer husband and wife from the date of such decree for divorce. In this example, the
divorce decree is regarded as conclusive proof.
