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Presumption as to Burden of Proof

Section 111-A to 114 lay down certain presumptions & specific conditions that define the party upon which the burden of proof lies. These provisions envisage the exceptions to the doctrine of “Innocent until Proven Guilty”. These enumerated conditions go against the doctrine by shifting the onus onto the accused to prove innocence, as opposed to the prosecution proving guilt.

Presumption as to certain offences

Section 111-A of the Indian Evidence Act, 1872 speaks about, “Presumption as to certain offences”. This section states that a person accused of the commission of certain offences under the Indian Penal Code such as conspiracies against the government etc. in a disturbed area is presumed to be guilty and must prove his innocence, thereby putting the burden of proof onto him.

Presumption as to Legitimacy of child

Section 112 of the Indian Evidence Act, 1872 speaks about, “Birth during marriage, conclusive proof of legitimacy”. Maternity is a fact and paternity is a matter of inferences or surmises. Section 112, which applies only to a married couple, lays down the rule for the proof of the paternity of an individual. “ Semper praesumiter pro legitimatione puerorum' (it is always to be presumed that children are legitimate — legal maxim). Section 112 is an instance of law furthering social objectives by leaning against the tendency to bastardize the child.

This section says that in the event a child is born during the course of a marriage or within 280 days of its dissolution, he may be presumed to be the legitimate child of his father.

The time period of 280 days is there because it is the gestation period for a human embryo. So even if conception happened in the last day of marriage, we will still have to wait for 280 days until the child is born and if the child is born after 280 days then he will be presumed as the legitimate son of that man.

This section is based on the principle that when a particular relationship such as marriage is shown to exist then its continuance must prima facie be presumed.

The following important points, regarding Section 112, may be noted:

  1. This section refers to the point of time of the birth of the child as the deciding factor and not to the time of conception of that child; the latter point of time has to be considered only to see whether the husband had no access to the mother.
  2. There is a presumption when a child is conceived and born during marriage that sexual intercourse took place at a time when according to the laws of nature, the husband could be the father of child.
  3. The presumption applies with equal force even where the child is born within a few days or even hours after the marriage. Further, it is immaterial that the mother was married or not at the time of the conception.
  4. Section 112 appears to provide a simple presumption of legitimacy which applies to children born during a marriage whether conceived before or after the marriage took place, and to children conceived during the marriage, whether born before the marriage is dissolved by the husband’s death or otherwise.
  5. Under Section 112, the only way to rebut the presumption is the proof of “non- access” between the parties to marriage. The phrase “non-access” implies non- existence of opportunity for physical intercourse. Non-access will have to be proved by direct or circumstantial evidence; non-access will have to be proved satisfactorily as the court favours the presumption of legitimacy. The father would have the burden to prove that the child is not his or would owe the same obligations as he would to a legitimate child.

Lacunae in Section 112

The only exception under the law is non-access between the parties. This “non- access” refers to the non-existence of opportunities for sexual intercourse. This creates a legal lacuna with respect to cases where paternity may be disputed even when the parties had “access” to each other, for example, in cases of adultery. In such a case, due to the standard of “conclusive proof”, a party with a legitimate case trying to dispute paternity will find themselves without remedy due to the inability to produce evidence. The exception to this law, i.e. “non-access” is not wide enough to cover all possible situations under the ambit of this law. Thus, the law is a draconian law based on morality with no relevance in the modern era.

DNA Test

The Indian Evidence Act was passed in the year of 1872 and since then, section 112 has neither been amended nor revised. At the time, there was little knowledge of forensic techniques and the concept of DNA had not yet been discovered. However, science and morality both have changed by leaps and bounds since then and in today’s day and age, section 112 is no longer valid. The section must be revised to allow DNA testing when a prima facie case can be made to dispute paternity.

The DNA test cannot rebut the conclusive presumption envisaged under Section 112 of the Indian Evidence Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof.

Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554

The Hon'ble Supreme Court in this landmark judgment allowed the petition filed by a son seeking to declare him the natural born son of the man he claimed to be his father. The DNA test was allowed on the ground that every child has the right to learn about the truth of his/her origin and to ensure that the father does not shirk parenthood and bastardise the child.

The Hon'ble Court made a clear distinction between “legitimacy” and “paternity” and held that Section 112 of the Indian Evidence only intends to safeguard the legitimacy of the child and not its paternity. It is thus understood that the essential principle governing Section 112 of the Indian Evidence Act, is “pater est quem nuptiae demonstrant”. Therefore, though it can be argued that the availability of scientific technology, that can very well confirm paternity, diminishes the need for such presumption in the first place, the person aggrieved still has to satisfy the test of “eminent need” to avail such scientific methods.

Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr., CDJ 2014 SC 005

In this case Hon’ble Supreme Court observed that-

We may remember that Section 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 Section 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. While the truth or fact is known, in our opinion, 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. In our opinion, 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. We must understand the 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”.

Dipanwita Roy v. Ronobroto Roy, CDJ 2014 SC 867

This case is in respect of the alleged infidelity of the appellant-wife. The respondent- husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. It is in the process of substantiating his allegation of infidelity, that the respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the appellant-wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant-wife's infidelity) through a DNA test.

The Supreme Court observed that-

It would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted herein above, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so”.

Mahindra v. Smt. Mamta @ Guddi, CWP No. 7839/2019

On 23rd May 2019, Rajasthan High Court held that the courts have to be very careful and sensitive to the circumstances before passing orders for getting the DNA test conducted for establishment of paternity in a case. The court said that such a prayer ought not to be granted by the courts without considering all circumstances and looking at it from every angle as the way it could affect the lives of individuals cannot be denied.

However, relying on many Supreme Court judgments on the subject, the court did agree that application for seeking DNA test cannot be ousted merely because of presumption to be drawn under Section 112 of the Evidence Act. It found the reasoning adopted by the civil judge for rejection of the application for DNA test as incorrect.

Section 112 & The DNA Technology Bill, 2019

The DNA Technology (Use and Application) Regulation Bill, 2019 has been introduced to avail DNA technology “for the purposes of establishing the identity of certain categories of persons including the victims, offenders, suspects, under trials, missing persons and unknown deceased persons”.

Section 34 of the DNA Technology Bill states that any information relating to DNA profiles, DNA samples and records which are maintained in a DNA data bank shall be made available for judicial proceedings, in accordance with the rules of admissibility of evidence and with relation to the investigation relating to civil disputes as specified in the schedule to the bill.

It can be safely inferred from the language in “judicial proceedings, in accordance with the rules of admissibility of evidence”, that the DNA information shall be made available to the concerned parties, only as per Section 112 of the Indian Evidence Act, i.e., if non-access as mandated by the provision is sufficiently proved by the aggrieved party.

The said Bill contains a Schedule which has been further classified into 4 parts, regarding the “List of matters for DNA filing”. Part C of the schedule, states that “DNA identification technology” may be availed even in civil disputes and other civil matters which includes Parental disputes, both maternity or paternity, under sub classification (i) and includes issues relating to assisted reproductive technologies including surrogacy and in vitro fertilization under sub classification (iii).

Hence, it is clear that the Legislature does not want to preclude the parties from availing the DNA profiling technology services that are provided. The legislature merely intends to strike a harmonious balance between Section 112 of the Indian Evidence Act, to protect the sanctity of marriage; and at the same time, provide opportunity to the parties to disprove paternity through conclusive scientific methods, provided the preliminary question of non-access is sufficiently answered by the party aggrieved. The fundamental right against self-incrimination as laid down under Article 20(3) of the Constitution also should be given due regard.

Note: - The DNA Regulation Bill is still pending before the Parliament and is not an Act yet.

Proof of cession of territory

Section 113 of the Indian Evidence Act, 1872 speaks about, “Proof of cession of territory”. This section says that a notification in the Gazette of India that any portion of British territory has, before the commencement of Part III of the Government of India Act, 1935, been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.

This section was enacted to exclude the courts of justice to inquire into the validity of the acts of the government as to matters regarding cession of territory to any Indian state. However, this section is now obsolete as the Privy Council in a case declared that this section is ultra vires.

Presumption as to abatement of suicide

Section 113-A of the Indian Evidence Act, 1872 speaks about, “Presumption as to abatement of suicide by a married women”. This section deals with the question of abetment of woman’s suicide by her husband or any of his relatives. In such cases, a presumption arises (the court may presume) that such a suicide has been abetted by the husband or his relatives, if the following two conditions are satisfied:

  1. The suicide was committed within a period of 7 years from the date of her marriage.
  2. Her husband, or his relatives, has subjected her to ‘cruelty’ (as the term is defined in Section 498-A, IPC).

Such a presumption must, however, be drawn by the court after having regard to all the other circumstances of the case. Once these things are proved, abetment of suicide is presumed to exist. It will then be for the husband or his relatives to prove that the suicide in question was the woman’s personal choice. If it is not a case of suicide, but of accidental death, the presumption of abetment does not arise.

Section 113-A does not create any new offence, or any substantive right, but merely a matter of procedure and as such is retrospective in operation. Where the wife’s suicide took place more titan a month-and-a-half after the demand for dowry was met, and matters settled, then it would be unsafe, as well as unjust, to invoke the presumption of guilt under Section 113-A.

Devkinandan v. State, 2003 Cr LJ 1502 (MP)

In this case, the wife committed suicide by taking poison. Oral and documentary evidence suggested that the husband was dominating the wife and was subjecting her to mental cruelty. Her letters showed that she was being treated as a chattel. The court held that the actions of the accused were such as to drive his wife to commit suicide. Thus, the presumption under this section prevailed.

Presumption as to dowry death

Section 113-B of the Indian Evidence Act, 1872 speaks about, “Presumption as to dowry death”. According to this section the court shall presume that a person has caused dowry death if evidence discloses that immediately before her death she has been subjected to cruelty or harassment or both for or in connection with the dowry, then the court shall presume that the person in question has caused the death.

According to this section, two things are needed to be proved in case there is a question with regard to the death of a woman. Firstly, she was subjected to cruelty or harassment soon before her death and secondly that the cruelty or harassment was in relation to the demand for dowry. Only cases satisfying these two conditions will come under this section.

Use of term Cruelty or harassment

Cruelty or harassment differs from case to case. It depends on the mindset so it differs from person to person. Cruelty can be of two types of physical cruelty and mental cruelty. Mental cruelty includes humiliating or ridiculing a woman, putting restraint in her movement, not allowing her to talk to the outside world, giving threats to her or her near and dear ones etc. Physical cruelty means actual beating or harming the body of the woman.

Every instance of physical or mental cruelty can put a lasting impact on the woman’s mind. if there is any instance where her dignity is harmed those memories can cause a grave impact on the person’s mind. However, in this section cruelty and harassment is not meant to be a single instance of cruelty or harassment it generally refers to a course of action stretched over a period of time.

Use of term “Soon before"

The term ‘soon before’ is not defined anywhere. The section says that the cruelty or harassment will have to happen soon before the death of the deceased in question only then we can presume that the death was caused due to dowry. The term would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. The term is relative and it is left in the court’s discretion how soon is equivalent to ‘soon before’. But the cruelty or harassment and the death of the deceased in question should not be too remote in time so that it can be safely considered that the effects of the cruelty or harassment are dissipated.

Sultan Singh v. State of Haryana, Crl. Appeal No. 1366/2010

On 26th September 2014, the Hon’ble Supreme Court held that presumption under Section 113-B is a “presumption of law”. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

  1. The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, IPC).
  2. The woman was subjected to cruelty or harassment by her husband or his relatives.
  3. Such cruelty or harassment was for or in connection with, any demand for dowry.
  4. Such cruelty or harassment was soon before her death.

Sher Singh @ Partapa v. State of Haryana, Crl. Appeal No. 1592/2011

On 9th January 2015, the bench of Supreme Court comprising of Justice Vikramajit Singh and Justice Kurian Joseph has laid down certain rules of interpretation of provisions relating to cruelty meted out to wives and dowry deaths.

The Bench observed,

As is already noted above, Section 113B of the Evidence Act and Section 304B of the IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word 'deemed' in Section 304B to distinguish this provision from the others. In actuality, however, it is well impossible to give a sensible and legally acceptable meaning to these provisions, unless the word 'shown' is used as synonymous to 'prove' and the word 'presume' as freely interchangeable with the word 'deemed'. ”

The Court hence found it imperative to construe the word 'shown' in Section 304-B of the IPC as to, in fact, connote 'prove'. The bench also commented on the requirement of burden of proof and observed that-

The fundamental and vital question that the Court has to ask itself and find a solid answer to, is whether this evidence even preponderantly proves that the Appellant had treated the deceased with cruelty connected with dowry demands. It is only if the answer is in the affirmative will the Court have to weigh the evidence produced by the Appellant to discharge beyond reasonable doubt, the assumption of his deemed guilt.”

Further, interpreting the word “soon” as used in Section 304B, the Court observed that it necessarily indicates that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the IPC.

Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt.

Therefore, as per the Court, the burden of proof weighs on the husband to prove his innocence by dislodging his deemed culpability, and that this has to be preceded only by the prosecution proving the presence of three factors, viz. (i) the death of a woman in abnormal circumstances (ii) within seven years of her marriage, and (iii) and that the death had a live link with cruelty connected with any demand of dowry.

The Bench added that in this case, because of the insufficiency or the unsatisfactory nature of the facts or circumstances shown by the prosecution, the burden of proving his innocence needs shifted to the Appellant.

Naresh Kumar v. State of Haryana, (2015) 1 SCC 797

In this case, it was written in the suicide note that no one was responsible for her that and also, she wrote that all doors were closed on her and she had no other way. The court held that when all the available evidence categorically shows that there was a demand for dowry and ill-treatment by the husband and his relatives than just because it is written in the suicide note that no one was responsible cannot be taken as a conclusive proof that there was, in fact, no one responsible.

Presumption as to existence of certain facts

Section 114 of the Indian Evidence Act, 1872 speaks about, “Court may presume existence of certain facts”. This section allows the court to presume certain facts such as that the possession of stolen property means that the person is the thief. Another example would be that when a person refuses to answer a question put to him in court, the presumption would be that if he had given the answer, it would be unfavorable for him. Various other cases have been enumerated in Section 114 which allow for the court to presume the existence of certain facts and accordingly shift the burden of proof. These presumptions generally go against the generally established principles of burden of proof.

A presumption of facts is an assumption resulting from one’s experience of the course of natural events of human conduct and human character. Such experience can be used in daily life as well as in the business of courts.

Under this section, the court is entitled to draw an inference that an accused committed a murder if he is found in the possession of property which is proved to be in the possession of the murdered person or if the accused can point out where the property is concealed and admits having concealed it there and if he is not able to provide any reasonable explanation as to his possession of the victim’s property.

Salem Municipality v. P. Kumar, Civil Appeal No. 9-11/2014

On 15th November 2018, the Supreme Court held that presumption of continuity as envisaged in Section 114 of the Indian Evidence Act can be drawn backward also. The high court had upheld the trial court order decreeing three suits filed by the plaintiff for declaration of title and permanent injunction.

The Supreme Court bench comprising Justice Arun Mishra and Justice Vineet Saran held that the finding recorded by the high court as to possession is clearly perverse and contrary to the revenue records and the Gazette notification of vesting of land in state issued in 1951. It is in this context, the bench made the aforesaid observation:

It is no doubt true that under Section 114 of the Evidence Act, there is a presumption of continuance of a state of affairs once shown to have prevailed. It is open to the court under Section 114 to presume the continuity of any fact once shown to have prevailed. Such presumption of continuity can be drawn not only forward but backward also. Court can presume that such state of affairs might have existed in past also unless discontinuity is proved.”

The bench said that, in the instant case, there is no affirmative evidence on record in the form of revenue record that the plaintiff’s vendor was in possession on the date of abolition and thereafter plaintiff remained in possession at any point of time. Dismissing all the three suits, the bench also imposed cost of Rs. 1 lakh upon the plaintiff, observing that there was multiplication of various proceedings by filing three suits.

Presumption in Rape case

Section 114-A of the Indian Evidence Act, 1872 speaks about, “Presumption as to absence of consent in certain prosecutions for rape”. According to Sec. 114-A, where the question before the court (in a prosecution for rape under Sec. 376 (2), IPC and where sexual intercourse by the accused is proved) is whether an intercourse between a man and a woman was with or without consent and the woman states in the court that it was against her consent, the court shall presume that there was no consent. The burden of proving becomes shifted to the accused. If he is not able to prove that there was consent, he becomes guilty.

The presumption under Section 114-A arises when the accused who commits rape is a police officer, a public servant, member of armed forces, management or staff of Jail/ Hospital, (relative, guardian, teacher or having position of trust) or he commits rape on a woman knowing that she is pregnant or when rape is a gang rape. This section has been added for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape.

Section 114-A was introduced because of the increasing number of acquittals of accused when the victim of rape is an adult woman. If she was really raped, it was very difficult for her to prove absence of consent; this provision has brought about a radical change in the Indian law relating to rape cases. This presumption would apply not only to rape cases, but also to cases of “attempted rape'.

Yogesh v. State through Agassaim Police Station, Goa, Crl. Appeal No. 16/2015

On 17th February 2018, the High Court of Bombay at Goa acquitted an accused in a Rape Case finding that there was a deep love affair between the Accused and prosecutrix.

It is evident that PW-1 not only continued with the relationship with the appellant after the first incident, but, also went to the extent of withdrawing the complaint by filing an affidavit in which, she has stated that she could not see the appellant behind bars, who was then under depression and was undergoing treatment at IPHB hospital, Bambolim and was desirous of withdrawing the complaint due to her personal reasons and emotions. This would clearly show that there was deep love affair between the appellant and PW-1. It cannot be said that the consent given by PW-1 was on account of any promise of marriage made by the appellant.

The presumption under Section 114-A of the Evidence Act cannot take the case of the prosecution any further. It is true that the said presumption is a statutory presumption and the Court is obliged to draw such presumption, provided the foundational facts are established. However, the fact remains that such presumption is a rebuttable presumption. The accused can rebut such presumption on the basis of the evidence led by the prosecution and the attending circumstances, which have come on record.”

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