Section 4 of Indian Evidence Act 1872: May Presume, Shall Presume, and Conclusive Proof.

PART I RELEVANCY OF FACTS

CHAPTER I PRELIMINARY

Section 4 of Indian Evidence Act 1872: May Presume, Shall Presume, and Conclusive Proof.

May Presume: The meaning of presumption is a rule that Hon’ble courts and Judges shall draw inference from the existence of a certain fact or may also say presumption is a legal or factual assumption from the existence of a fact which is presumed as proved.

The meaning of “may presume” is that Hon’ble court has discretionary power to use his mind to presume as proved. It is upon the court that he will presume as proved any fact. When the court has presumed any fact in favour of any party such party will not be bounded to prove but against whom it has been presumed as proved, he will have full right to rebut.

Shall Presume: In the section where the word “Shall presume” has been used, the court has to be presumed as proved, and the court has not any discretionary power in such sections but against whom it has been presumed, has full right to rebut such presumption whether it is in “ May presume or Shall Presume”

Note: Presumption wherever is always rebuttable

In case Babukhan v State of Rajasthan, AIR 1997 SC 2960: 1997 Cr LJ 3567; Mayank Rajput v State, 1998 Cr LJ 2797 (All). In this case, Supreme Courts clarified, The term "presumption", in its largest and most comprehensive signification, may be defined to be an inference, affirmative or disaffirmation of the truth or falsehood of a doubtful fact or proposition, drawn by a process of probable reasoning from something proved or taken for granted.

Conclusive Proof: A fact will be called as conclusive of the other fact If one fact is proved then the other will also be considered as proven. No need to prove or disprove the second fact.

For example A marriage certificate is conclusive proof of marriage

Case Law

Minoti Anand v Subhash Anand, AIR 2011 Bom 61 : 2011 (2) Mah LJ 812 : 2011 (5) Bom CR 624

In a matrimonial dispute, the marriage was said to have been performed according to Hindu customs. Thereafter they married as per Japanese Custom and the registration certificate showing their marriage under section 17 of the Foreign Marriage Act, 1969 was issued. It was held by Bombay High Court that upon the factum of registration of marriage, the solemnisation of the marriage becomes a conclusive fact under section 14(2) of the Foreign Marriage Act, 1969. Thus, under section 4 of the Evidence Act, no evidence with regard to the fact that marriage was also solemnised under the Hindu Marriage Act, 1955 can be allowed

Nirmal Das Bose v Mamta Gulati, AIR 1997 All 401 .

A marriage certificate issued under the Special Marriage Act, 1954 is a conclusive evidence of the solemnisation of marriage under the Act and also of compliance of formalities and signatures of parties and witnesses. The genuineness of the compliance procedure is a different question. It remains questionable

Emperor v Shrinivas, (1905) 7 Bom LR 969 . For the clarification of expressions "may presume" and "shall presume" see Haradhan Mahatha v Dukhu Mahatha, AIR 1993 Pat 129 .

A court, where it "may presume" a fact, has the discretion to presume it as proved or to call for confirmatory evidence of it, as the circumstances require. In such a case the presumption is not a hard and fast presumption, incapable of rebuttal, a presumptio juris et de jure

Gitika Bagechi v Subhabrota Bagechi, AIR 1966 Cal 246 .

See the decision of the Supreme Court in Sodhi Transport Co v State of UP, AIR 1986 SC 1099 : (1986) 2 SCC 486 : 1986 Tax LR 2347 , where the effect on the burden of proof of all the kinds of presumption has been explained. The court further said that these presumptions are not peculiar to the Evidence Act. They are generally used wherever facts are to be ascertained by a judicial process

Where husband and wife were in love and led an amorous life for about eight years before their marriage, both were sound in health and mind and after marriage lived together in a room for months together and had privacy, the presumption was conclusive that consummation of the marriage was an accomplished fact.




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