Write notes on the following: (i) May presume (ii) Shall presume (iii) Conclusive proof. In case of conclusive proof, can the court ignore a fact declared so under the Evidence Act, otherwise?

There is no more productive inquiry that a student of evidence can undertake than to sit with Section 4 of the Indian Evidence Act, 1872 — or its successor, Section 2 read with Sections 2(b), 2(h), and 2(l) of the Bharatiya Sakshya Adhiniyam, 2023 — and read the three phrases that the legislature has with studied deliberateness placed side by side: "may presume," "shall presume," and "conclusive proof." Each phrase carries a distinct legal direction; each operates at a different level of compulsion; and each generates a different consequence when a party seeks to challenge the presumed fact. Together, they form the complete architecture of presumptions in the Indian law of evidence.

I. May Presume

The Act defines the expression as follows: "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 further proof of it." The key word is "may" — it confers discretion, not duty. When the Act uses this language, the court is given a choice: it may raise the presumption and treat the fact as proved, or it may decline to do so and call upon the party to prove the fact by independent evidence.

This is, in its essential character, a presumption of fact — praesumptio hominis. It is an inference that flows from the common course of natural events, human conduct, and the ordinary experience of life. The court, as a reasonable observer of human affairs, applies its accumulated sense of how things ordinarily happen and draws an inference accordingly. It is not a mandate from the legislature but an acknowledgment by the legislature that, in certain situations, an inference will almost always be rational to draw.

The most comprehensive repository of such presumptions is Section 114 of the IEA (now Section 119 of the BSA), which empowers the court to presume the existence of any fact it thinks likely to have happened, regard being had to common course of events and human conduct. The illustrations to this section, while not exhaustive, are vivid guides:

• Illustration (a): A man found in possession of stolen goods soon after theft may be presumed to be the thief or to have received them knowing them to be stolen — unless he can give a satisfactory account of his possession.

• Illustration (b): An accomplice in crime is presumed to be an unworthy witness unless corroborated in material particulars.

• Illustration (c): A bill of exchange accepted or endorsed is presumed to have been negotiated for consideration.

• Illustration (e): Judicial and official acts are presumed to have been regularly performed — the celebrated maxim omnia praesumuntur rite esse acta ("all acts are presumed to have been rightly and regularly done") is nothing but this illustration translated into Latin.

• Illustration (f): If a letter is posted, it is presumed to have reached the addressee in the ordinary course of post.

• Illustration (g): Evidence which could be produced by a party and is deliberately withheld would, if produced, be unfavourable to that party — the rule of adverse inference.

The practical importance of the word "may" cannot be overstated. In Sodhi Transport Co. v. State of Uttar Pradesh (AIR 1986 SC 1099), the Supreme Court explained that where the court has an option to raise the presumption, it has a discretion to presume the fact as proved, or to call for confirmatory evidence as the circumstances require. The court's freedom to withhold the presumption is itself a protection against mechanical application. In Dhanvantrai Balwantrai Desai v. Maharashtra (AIR 1964 SC 575), the Court made a consequential distinction: to rebut a "may presume" presumption once raised, the party need only produce evidence that is reasonably plausible — evidence that is "merely consistent with the innocence of the accused" suffices. The bar for rebuttal is therefore relatively lower.

It is important to understand that once a court exercises its discretion and does raise a "may presume" presumption, the distinction between "may presume" and "shall presume" disappears in terms of effect, and both become rebuttable presumptions operating in the same way. This was settled in Kumar Exports v. Sharma Carpets (2009 2 SCC 513), where the Supreme Court stated: "If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved."

A critical and often overlooked rule about all presumptions — including "may presume" — is that a presumption must be based on proved facts, and a presumption cannot be based on another presumption. In Suresh Budharmal Kalani v. Maharashtra (1998 7 SCC 337), the Supreme Court firmly stated that the fact relied upon to raise a presumption must itself be independently proved. A chain of presumptions built on each other has no legal foundation.

II. Shall Presume

The Act defines this as: "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." Here, the legislature uses the word "shall" — the court has no discretion. This is a rebuttable presumption of law — praesumptio juris. The court is commanded to raise the presumption once the foundational facts are proved, and the presumption holds until and unless the contrary is established.

In Izhar Ahmad Khan v. Union of India (1962 Suppl 3 SCR 235), the Supreme Court explained that a "shall presume" provision "takes away judicial discretion either to attach or not to attach the due probative value to fact A, and requires prima facie the due probative value to be attached, subject of course to the said presumption being rebutted by proof to the contrary." This distinction — that the court's role is now obligatory — separates it cleanly from "may presume."

The IEA and BSA contain a large number of "shall presume" provisions, particularly in relation to documents and specific social offences:

• Sections 79–85 IEA / Sections 84–90 BSA: The court shall presume the genuineness of certified copies of official documents, court records, public gazettes, maps made by government authority, and powers of attorney. These presumptions are rooted in the de facto doctrine — the maxim omnia praesumuntur rite esse acta — that acts purporting to be done by public officials in their official capacity are presumed to have been done properly and with due authority.

• Section 105 IEA / Section 108 BSA: In a criminal trial, the court shall presume the absence of circumstances bringing the accused within any exception or proviso to the penal law. The accused who pleads an exception must rebut this presumption. The standard of proof on the accused in rebuttal is preponderance of probabilities, not beyond reasonable doubt.

• Section 113A IEA / Section 117 BSA: When a married woman commits suicide within seven years of marriage and the prosecution establishes that her husband or his relatives subjected her to cruelty, the court may presume (note: discretionary here) that the suicide was abetted by the husband. The legislature deliberately retained a "may presume" formula here, recognising that not every suicide in such circumstances is necessarily abetted. The court must consider all other circumstances before raising the presumption.

• Section 113B IEA / Section 118 BSA: This is a powerful "shall presume" provision in dowry death cases. When the prosecution establishes that soon before a woman's death she was subjected to cruelty or harassment in connection with demands for dowry, the court shall presume that the accused caused the dowry death within the meaning of Section 304B IPC (now Section 80 of the BNS, 2023). In State of Punjab v. Iqbal Singh (AIR 1991 SC 1532), the Supreme Court held that once these foundational facts are proved, it is obligatory on the court to raise this presumption. However, the presumption remains rebuttable — the accused may disprove it by showing that all the ingredients of the dowry death provision are not satisfied, as clarified in Parvati Devi v. State of Bihar (2022 14 SCC 500).

What makes "shall presume" qualitatively different from "may presume" in terms of rebuttal is not the nature of the presumption — both are rebuttable — but the standard of proof required to rebut. This was emphatically settled in Dhanvantrai Balwantrai Desai v. Maharashtra, where the Court drew the distinction: whereas a "may presume" can be rebutted by evidence that creates a plausible alternative, a "shall presume" requires the party to positively prove the contrary. The evidence must be clear and convincing, going beyond mere possibility into positive proof, though not necessarily to the criminal standard of beyond reasonable doubt.

The "shall presume" formulation is also found in other statutes. Section 118 of the Negotiable Instruments Act, 1881 provides that every negotiable instrument shall be presumed to have been made for consideration, accepted for value, and negotiated before maturity. Section 20 of the Prevention of Corruption Act, 1988 creates a mandatory presumption of corrupt intent when gratification is proved to have been received by a public servant. These external provisions draw their legal force from the same matrix as Section 4 of the IEA, and in Kumar Exports v. Sharma Carpets, the Supreme Court confirmed that the rebuttable nature of these presumptions is implicit by definition.

III. Conclusive Proof

The Act defines this as: "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." This is the most absolute of the three categories. The court's command is not merely to presume — it is to conclusively regard the presumed fact as established. No counter-evidence is admissible. The phrase "shall not allow evidence to be given for the purpose of disproving it" is categorical and admits no exception — except where the section itself carves one.

This is what scholars and jurists call the praesumptio juris et de jure — the irrebuttable presumption of law. Ernest Cockle, the celebrated evidence scholar, observed that conclusive presumptions "are usually fictions, to disguise a rule of substantive law." Sir James Fitzjames Stephen himself, the drafter of the Indian Evidence Act, preferred the term "conclusive proof" over "irrebuttable presumption," reserving the word "presumption" for those that could be rebutted. The practical observation is apt: if the legislature says a child born during marriage is conclusively proved to be legitimate, it is not really stating an evidentiary presumption — it is declaring a rule of status and social policy.

The instances of conclusive proof in the IEA and BSA are deliberately few:

• Section 41 IEA / Section 46 BSA: A final judgment in rem — a judgment that adjudicates the legal status of a person or thing, such as a decree of legitimacy, adoption, or probate — is conclusive proof of the matters directly adjudicated. Once a court of competent jurisdiction has pronounced on the status, no party can relitigate that status in a collateral proceeding. This is an extension of the principle of res judicata into the law of evidence.

• Section 112 IEA / Section 116 BSA: The fact that a person is born during the continuance of a valid marriage between his mother and a man, or within 280 days after its dissolution (the mother remaining unmarried), shall be conclusive proof that the child is the legitimate child of that man — unless it can be shown that the parties had no access to each other at any time when the child could have been begotten. The basis of this provision is the ancient maxim pater est quem nuptiae demonstrant (he is the father whom the marriage points to) and the public policy that legitimacy of children and sanctity of marriage should receive the strongest protection the law can give.

• Section 113 IEA (deleted in BSA): The old provision declaring an irrebuttable presumption that a boy under thirteen years cannot commit rape has been removed from the BSA, 2023, in recognition of changed social realities and scientific understanding.

Can the Court Ignore a Fact Declared to be Conclusive Proof?

This question — whether a court can, either by its own reasoning or on the basis of compelling evidence, ignore what the Act declares to be conclusive proof — is one of the most intellectually absorbing questions in Indian evidence law. The short answer is no, and the reasons deserve careful examination.

The language of the definition is unambiguous: the court "shall" regard the other fact as proved, and "shall not allow" evidence to be given for the purpose of disproving it. Both commands are mandatory. There is no room for judicial discretion when it comes to ignoring a fact declared conclusive proof. If the court were to allow such evidence or ignore the conclusive presumption on its own motion, it would be acting contrary to a specific statutory command — which is impermissible.

Justice Venkatramaiah of the Supreme Court, in Sodhi Transport Co. v. State of Uttar Pradesh (AIR 1986 SC 1099), surveyed Sections 41, 112, and 113 and remarked that these are cases "where law regards that any amount of other evidence will not alter the conclusion to be reached when the basic facts are admitted or proved." This statement captures the essence of the rule: the conclusive presumption operates as a closed door. No matter how much evidence points the other way, the door shall not be opened.

However, the law of evidence, like all law, is not without its tensions. Section 112 of the IEA presents the most remarkable example of a provision that uses the words "conclusive proof" but then immediately qualifies the presumption with an escape clause — "unless it can be shown that the parties had no access to each other." Courts have grappled with this apparent contradiction for over a century. If the presumption is truly conclusive and irrebuttable, how can the proviso permit evidence to rebut it?

The courts have resolved this by reading the structure of the section as creating a special category: a conclusive presumption that can be displaced only by proving the specific and narrow exception the section itself provides, namely proof of non-access. In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana (AIR 1954 SC 176), the Supreme Court formulated it precisely: "The presumption which Section 112 contemplates is a conclusive presumption of law which can be displaced only by the proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage." In Gautam Kundu v. State of West Bengal (AIR 1993 SC 2295), the Court described the effect of Section 112 as giving rise to "a very strong though rebuttable presumption" — an apparent departure from the conclusive proof language, but one explained by the existence of the proviso. The Karnataka High Court, in a sharply reasoned judgment, observed that where the Act uses the words "conclusive proof," "there is no question of rebuttal because the definition in Section 4 uses the words conclusive proof and states that the Court shall not allow evidence to be given for the purpose of disproving it" — and that the only exception the section provides is exhaustive and cannot be widened.

The challenge posed by DNA testing to Section 112 is the most vivid modern illustration of the tension. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014 2 SCC 576), the Supreme Court confronted a case where DNA evidence conclusively established that the husband was not the biological father, yet the parties had been living together and access between them was not disproved. The Court made a bold observation: "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." However, this view needs to be read carefully — the Court was not authorising courts to routinely ignore Section 112 in the face of DNA evidence; it was addressing the specific context of scientific accuracy prevailing over a legal fiction when both access and conclusive proof co-exist.

In Bhabani Prasad Jena v. Orissa State Commission for Women (2010 8 SCC 633), the Court cautioned that a DNA test should not be ordered as a matter of course and must not be used to circumvent the conclusive presumption. "Diverse aspects have to be considered including presumption under Section 112 and whether it is not possible for the court to reach the truth without resorting to DNA test." The court must balance the right to truth, the protection of the child's status, the right to privacy of the parties, and the sanctity of the conclusive presumption.

The Karnataka High Court put the constitutional dimension most starkly: to compel a non-consenting party to undergo blood or DNA testing to challenge a conclusive presumption would not only circumvent the statute but would also violate the fundamental right of personal liberty under Article 21 of the Constitution.

The position, therefore, may be summarised thus:

1. A court cannot ignore a fact declared conclusive proof under the Act as a matter of its own discretion or reasoning.

2. A court cannot allow evidence to be led for the purpose of disproving a conclusive presumption — the bar is absolute, as stated in the definition in Section 4 IEA / Section 2(b) BSA.

3. Where the section itself provides a specific and limited escape clause — as Section 112 does with non-access — only that specific exception can be used to displace the presumption; the escape route cannot be widened by analogical reasoning or general principles.

4. In exceptional circumstances involving modern scientific evidence like DNA testing, there is a developing judicial tendency to permit the scientific truth to override the legal presumption — but this remains contested, requires the court to first establish that the "access" proviso is applicable, and must never become a routine tool to erode the conclusiveness of the presumption.

The governing principle, as stated by the Supreme Court in Sham Lal v. Sanjeev Kumar (2009 12 SCC 454), captures it well: Section 112 is based on the presumption of public morality and public policy — and a civilised society is imperatively required to presume the legitimacy of a child born during a valid marriage. The law leans heavily in favour of legitimacy, for to bastardise a child without clinching proof of illegitimacy is fraught with grave consequences not only for the individual but for the social fabric itself.

A Comparative Note

The following table captures the threefold scheme in its essential features: