Presumption is an inference of a fact drawn from certain other proved facts.
It is raised when Court Presume the existence of fact on the cases of certain other proved facts.
Effect of presumption
The party in whose favour it is raised is not required to prove the fact.
Party is in relief of the burden of the proof, whose in favour the fact is presumed to the court.
Types of presumption
Presumption of fact
- May presume
- Court have discretion (presumptio hominis).
May presume
- Directory in nature : rebuttable.
- Court may either presume that fact or call for proof of it.
In the cases of may presume the court has discretion to raise the presumption of that fact.
In such case burden of proof would not lay upon the party who had initial burden of proving that fact.
However once the court raise it, is also rebuttable.
And the rebutting the fact would lay upon the opposite party of it.
Court may
- either raise it,
- Party would be absolved of his liability to prove.
- Court may refuse
- Party has to prove the fact.
Which Section of may presume in Evidence Act
The Section 86, 87, 88, 90, 90A, 113, 114.
Section 90 of Evidence Act
Where document is 30 year old, court may presume that such document is the duly attested and signed.
Presumption of law ( juris).
- Rebuttable (shall presume)
- Can give evidence to contradict to disprove the presumption.
- Irrebuttable (conclusive proof)
- Against whome presumption they cannot give any evidence to contrary due disprove the presumption.
Shall presume
- mandatory, rebuttable
- Court shall regard facts as proved until and unless it is disproved.
- court is duty bound to raise presumption.
- Example: Section 79 to 85 , section 113B and 114A.
- 113B presumption as to dowry death.
In case of Shall presume the court shall Presume the facts and it does not have any discretion in that regard.
The court ones having Presume the fact the burden of proof will shift toward defendant to rebut it, thus like may presume shall presume is also rebuttable.
Conclusive proof evidence act
- Mandatory, irrebuttable
- when one fact is declared by the act as conclusive proof of other, Court shall on proof of one fact regard the Other as proved and shall not allow evidence to be given to disprove it.
- Section 41,112,113.