Presumptions under the Bharatiya Sakshya Adhiniyam, 2023: The Three Grades and How They Operate

A presumption lets a court treat one fact as established on proof of another, without anybody proving the second fact at all. It is a device for economising proof, and it works by placing the risk of non-persuasion on the party against whom it runs. The Adhiniyam recognises three grades of it, and the difference between them is not a matter of degree but of kind: the first leaves the court a choice, the second removes the choice, and the third removes the possibility of contradiction.

1. The Three Grades

Sections 2(1)(h), 2(1)(l) and 2(1)(b), BSA

'May presume' — Whenever it is provided by this Adhiniyam 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 proof of it. [Section 2(1)(h)]

'Shall presume' — Whenever it is directed by this Adhiniyam that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. [Section 2(1)(l)]

'Conclusive proof' — When one fact is declared by this Adhiniyam 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. [Section 2(1)(b)]

The Indian Evidence Act carried these three definitions in a separate Section 4, apart from the interpretation clause in Section 3. The Adhiniyam consolidates all of the definitions into a single lettered Section 2(1), and the three grades now sit among them.

	May presume	Shall presume	Conclusive proof
Clause	2(1)(h)	2(1)(l)	2(1)(b)
Nature	Discretionary	Obligatory	Obligatory
Court's choice	May presume, or may call for proof	None — it must presume	None — it must presume
Rebuttable	Yes, by disproof	Yes, by disproof	No — evidence in rebuttal is not received
Class of presumption	Presumption of fact	Rebuttable presumption of law	Irrebuttable presumption of law
Latin	Praesumptiones hominis	Praesumptiones juris tantum	Praesumptiones juris et de jure

2. May Presume — The Overlooked Second Limb

Most summaries of 'may presume' say that the court has a discretion whether to draw the inference. That is true but incomplete, and the incompleteness matters.

Section 2(1)(h) offers the court two courses. It may regard the fact as proved unless and until it is disproved. Or it may call for proof of it. The second limb is the one usually left out, and it is where 'may presume' parts company with 'shall presume' in a way that affects the conduct of a case.

A court that calls for proof has not merely declined to help the party. It has put that party back to proving the fact by ordinary evidence, as though the provision were not there at all. The discretion therefore runs in both directions: the court may act on the inference, and it may refuse to act on it and demand the proof instead.

⚠ A may-presume provision is not a right

A party who points to a may-presume provision and says nothing more has not discharged anything. The choice belongs to the court, not to the party who stands to gain, and the party should be ready to explain why the inference should be drawn in the circumstances of the case — the reliability of the source, the absence of any reason to doubt it, the conduct of the other side. Where the court is not persuaded, the fact must be proved in the ordinary way.

Presumptions of this class are described as presumptions of fact. They rest on the common course of natural events, human conduct and public and private business, and they are always rebuttable and always discretionary. The principal instance is Section 119, under which the court may presume the existence of any fact which it thinks likely to have happened, and whose illustrations include the presumption that stolen goods recently in a person's possession were stolen by him, and that evidence which could be produced and is not would be unfavourable to the person withholding it.

3. Shall Presume — Obligatory but Rebuttable

Where the Adhiniyam directs that the court shall presume, the discretion disappears. The court must regard the fact as proved, and there is no option to call for proof instead.

What survives is the possibility of disproof. The words are 'unless and until it is disproved', and disproof takes its meaning from Section 2(1)(c): a fact is disproved when the court either believes it does not exist, or considers its non-existence so probable that a prudent man ought to act on that supposition.

Two consequences follow and both matter in practice.

The burden of disproof lies on the party against whom the presumption runs. Raising a doubt is not enough. He must satisfy the court of the non-existence of the fact, and a presumption left merely doubtful stands.

The party in whose favour it runs need prove only the foundational fact. Every presumption operates on proof of something, and that something must still be established. A party relying on Section 78 must prove that the document purports to be a certified copy in the prescribed form; a party relying on Section 92 must prove that the document is thirty years old and came from proper custody. The presumption does not dispense with the foundation.

Presumptions of this class are rebuttable presumptions of law. The greater number of the presumptions as to documents in Sections 78 to 87 and Section 91 belong here, as do the presumptions in Sections 117 and 118 relating to abetment of suicide by a married woman and to dowry death.

4. Conclusive Proof — The Bar on Evidence

The third grade is different in kind. Section 2(1)(b) does two things: it directs the court to regard the fact as proved, and it directs that the court shall not allow evidence to be given for the purpose of disproving it.

That second direction is the whole of the difference. A shall-presume provision yields to proof; a conclusive-proof provision forbids the proof from being offered. The party against whom it operates is not merely likely to fail — he is not permitted to try.

The Adhiniyam uses the expression sparingly. There are two instances.

Section 35 — a final judgment, order or decree of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction is conclusive proof of the matters the section specifies. This is the statutory form of the judgment in rem.
Section 116 — birth during the continuance of a valid marriage, or within two hundred and eighty days after its dissolution the mother remaining unmarried, is conclusive proof of legitimacy, 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 escape in Section 116 is not a right of rebuttal

Proof of non-access does not rebut the presumption; it prevents it from arising. It is part of the foundational fact rather than an exception to the bar on evidence. This is why, for many years, a DNA report excluding paternity was held insufficient to displace the presumption unless non-access was also established — the report went to the presumed fact, and evidence on the presumed fact is exactly what Section 2(1)(b) shuts out.

5. Conclusive Proof and Scientific Fact

The most interesting question the three grades have produced is what happens when a conclusive presumption collides with a scientific result. The answer has shifted over three decades and appears now to have settled.

📖 Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418

Held: Courts in India cannot order a blood test as a matter of course. There must be a strong prima facie case, and the applicant must establish the need. No one can be compelled to give a sample, and an adverse inference may be drawn against a party who refuses. The presumption of legitimacy is a conclusive presumption which can be displaced only by proof of non-access.

Ratio: Primacy to the statutory presumption. A test will rarely be ordered, and the only escape is non-access.

📖 Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576

Held: Where a DNA test has in fact been conducted and its result excludes paternity, the result must prevail. When there is a conflict between a conclusive proof envisaged by law and a fact established by science, the latter must prevail, since the presumption is a legal fiction whereas the DNA report is a matter of scientific accuracy. The Court nevertheless reiterated that such a test is not to be directed as a matter of routine.

Ratio: A reliable DNA exclusion already on the record displaces even a conclusive statutory presumption.

Two later decisions qualified that position before it was restated. In Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, the Court cautioned against routinely ordering DNA tests and held that a report would not automatically dislodge the presumption in the absence of proof of non-access, recognising the child's right to privacy. In Ivan Rathinam v. Milan Joseph, the absolutist view was relaxed by calling for a balancing of interests — the harm from a possible stamp of illegitimacy on one side, and the interest in knowing biological parentage on the other.

📖 Nikhat Parveen alias Khusboo Khatoon v. Rafique alias Shillu, 2026 INSC 399 (decided 21 April 2026)

Facts: A mother sought maintenance for her minor daughter under the Protection of Women from Domestic Violence Act, 2005. A DNA test had been ordered by the court itself and had attained finality; the report excluded the respondent as the biological father. The courts below refused maintenance, and the High Court affirmed.

Held: A Bench of Sanjay Karol and N. Kotiswar Singh, JJ. examined Section 112 of the Indian Evidence Act, 1872 and its successor Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, and reviewed the line from Goutam Kundu through Nandlal Badwaik, Aparna Ajinkya Firodia and Ivan Rathinam. Following Nandlal Badwaik, the Court held that where a court-directed DNA report already on the record conclusively excludes paternity and has not been challenged, it cannot be ignored, and maintenance cannot be directed against a man shown not to be the biological father. The appeal was dismissed.

Ratio: A DNA report which the court itself directed, which is unchallenged and which sits on the record, prevails over the conclusive presumption in Section 116. The Court cautioned that the decision is not an endorsement of routine DNA testing.

The position that emerges is a two-stage one, and it reconciles decisions that are often presented as conflicting. At the first stage the court asks whether a test should be ordered at all, and the answer is ordinarily no — a strong prima facie case is required, the child's privacy is a consideration, and the interests must be balanced. At the second stage, where a reliable report already exists and is unchallenged, the court gives effect to it notwithstanding Section 116. The conclusive presumption therefore continues to operate in every case in which no test is ordered, which is most of them.

6. A Fourth Formula

One drafting style in the Adhiniyam belongs to none of the three defined grades and is worth noticing.

Section 115 provides that where a person is accused of certain offences under the Bharatiya Nyaya Sanhita, 2023 and was at a place in a disturbed area at a time when firearms or explosive substances were used from that place to attack or resist the armed forces or forces charged with maintaining public order, 'it shall be presumed, unless the contrary is shown, that such person had committed such offence'.

The formula — 'shall be presumed, unless the contrary is shown' — is not defined in Section 2(1) at all. It is not 'shall presume', and it is not 'conclusive proof'. In substance it reads as a mandatory rebuttable presumption in the same family as 'shall presume', and it has been treated that way; but a practitioner should be alert to the fact that the statutory definition does not supply its meaning.

The same formula appears in Section 120, which provides for the presumption as to absence of consent in certain prosecutions for rape where sexual intercourse is proved and the woman states in her evidence that she did not consent.

7. Where the Presumptions Live

The Adhiniyam deploys presumptions in two blocks, and knowing which block a provision belongs to tells one a good deal about its character.

Block	Subject	Grade
Sections 78 to 93	Presumptions as to documents — certified copies, records of evidence, Gazettes, maps, law books, powers of attorney, electronic agreements and signatures, foreign judicial records, electronic messages, documents not produced after notice, thirty-year-old documents, five-year-old electronic records	Mostly shall presume; several are may presume
Sections 110 to 120	Presumptions in the chapter on burden of proof — survivorship, the existence of things in a state of things, the general presumption in Section 119, abetment of suicide by a married woman, dowry death, absence of consent	A mixture of may presume, shall presume, conclusive proof and the undefined formula

A rough generalisation holds. The documentary presumptions are mostly obligatory, because they rest on the reliability of official process — an officer certifying a copy, a Government printing a Gazette, a notary attesting a power of attorney. The burden-of-proof presumptions are more mixed, because they rest on inferences about human conduct, which vary with circumstances.

8. Presumptions and the Burden of Proof

A presumption operates on the burden of proof, and the mechanism repays being stated precisely because the two burdens are frequently conflated.

The legal burden, or burden of proof on the pleadings, lies under Section 104 on the person who asserts a fact and would fail if no evidence were given. It does not shift.

The evidential burden, or the burden of adducing evidence, shifts during the trial under Section 105, which places it on the person who would fail if no evidence at all were given on either side.

A presumption operates on the evidential burden. Once the foundational fact is proved and the presumption arises, the party against whom it runs must adduce material or lose. Where the presumption is a shall-presume one, he must go further and disprove.

What a presumption does not do is relieve a party of the foundation. This is worth repeating because it is the commonest error in argument: a party invoking Section 92 must prove that the document is thirty years old and came from proper custody; a party invoking Section 78 must produce a copy substantially in the prescribed form. Where the foundation fails, the presumption never arises and nothing has been gained.

⚠ Presumptions in criminal cases

A mandatory presumption in a criminal case sits uneasily with the presumption of innocence, and courts construe such provisions strictly. Two consequences follow. The foundational facts must be proved beyond reasonable doubt before the presumption arises. And the accused discharges his burden of rebuttal on a preponderance of probabilities, not beyond reasonable doubt — he need only render the presumed fact improbable, not disprove it to the criminal standard.

9. Presumptions Distinguished

	Presumption	Judicial notice	Estoppel
Provisions	Sections 2(1)(b), (h), (l); 78 to 93; 110 to 120	Sections 51 and 52	Sections 121 to 123
Operates on	Proof of a foundational fact	Nothing — the fact is simply noticed	A representation acted upon by the other party
Effect	The court may or must treat a second fact as proved	The fact need not be proved at all	A party may not deny the fact
Binds	The court, in its assessment	The court	A party, and only as against the person who relied
Displaced by	Disproof, except where conclusive	Showing the fact is not properly noticeable	Showing no representation, reliance or detriment

The distinction from estoppel is the one most often needed. A conclusive presumption binds the court, which must regard the fact as proved and may receive no evidence against it. An estoppel binds a party, who is not permitted to deny the fact as against the particular person who relied on his representation — and the same party may assert the truth freely in a proceeding against somebody else.

10. Working With a Presumption

Identify the grade. Read the provision and find the operative words — may presume, shall presume, conclusive proof, or the undefined formula in Sections 115 and 120.
Identify the foundational fact and prove it. The presumption does not arise until it is established.
Where the grade is may presume, argue for the inference. The choice belongs to the court, and the court may call for proof instead.
Where the grade is shall presume, the court has no choice once the foundation is laid — but the opposite party may disprove.
Where the grade is conclusive proof, no evidence in rebuttal is received, and the only route is to show that the foundational fact does not exist.
In a criminal case, prove the foundational facts beyond reasonable doubt, and expect the accused to rebut on a preponderance of probabilities.
Do not confuse a presumption with a shifting of the legal burden. Section 104 does not shift; the evidential burden under Section 105 does.

11. The Position Stated Shortly

Three grades are defined — may presume at Section 2(1)(h), shall presume at Section 2(1)(l), conclusive proof at Section 2(1)(b).
May presume carries two limbs. The court may draw the inference, or may call for proof of the fact — which puts the party back to proving it.
Shall presume removes the discretion but preserves disproof, and the burden of disproof lies on the party against whom it runs.
Conclusive proof bars evidence in rebuttal, and the Adhiniyam uses it in only two places — Sections 35 and 116.
Proof of non-access under Section 116 prevents the presumption from arising; it is not a right of rebuttal.
A court-directed, unchallenged DNA report on the record prevails over Section 116 — Nikhat Parveen, 2026, following Nandlal Badwaik — though the decision is not an endorsement of routine testing.
Sections 115 and 120 use a formula not defined in Section 2(1) — 'shall be presumed, unless the contrary is shown'.
Every presumption requires a foundational fact to be proved, and a presumption whose foundation fails has never arisen.

12. Related Topics and Provisions

Topic or provision	Connection
Presumptions Regarding Documents — Sections 78 to 93	The documentary block in detail
May Presume vs Shall Presume vs Conclusive Proof	The three grades compared
Judgment in Rem and Judgment in Personam	Section 35, the other instance of conclusive proof
DNA Evidence	The collision between scientific result and statutory presumption
Burden of Proof — Sections 104 onwards	How a presumption operates on the evidential burden
Judicial Notice	Facts needing no proof, distinguished from presumed facts
Admission and Estoppel	Sections 121 to 123, distinguished from a conclusive presumption
Sections 115, 116 and 119 to 120, BSA	The presumptions in the burden-of-proof chapter