May presume, shall presume and conclusive proof are the three grades of statutory presumption in Indian evidence law, defined in Sections 2(1)(h), 2(1)(l) and 2(1)(b) of the Bharatiya Sakshya Adhiniyam, 2023. Only the first two can be displaced by contrary evidence.
In a 2026 ruling, in Nikhat Parveen v. Rafique, the Supreme Court held that a DNA report obtained on a court’s own direction cannot be ignored once it sits on the record and conflicts with the presumption of legitimacy. The Court dismissed the appeal seeking maintenance for the child on that footing, while cautioning that the judgment is not an endorsement of routine DNA testing. The presumption it was dealing with, now Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, is the Adhiniyam’s clearest instance of conclusive proof, the one grade drafted to shut contrary evidence out altogether.
This article sets out what each of the three expressions directs a court to do, which provisions of the Adhiniyam use which, and what a party facing each one can still prove.
The difference between the three grades is a difference in what a court is allowed to hear once the presumption arises, and one fact pattern shows all three. Take a man who denies that he is the father of a child born while his marriage to the child’s mother was still subsisting. Maintenance is claimed for the child, and he offers to prove that the mother was in a relationship with another man at the time.
Section 116 stops him before the evidence is led. Birth during the continuance of a valid marriage is conclusive proof of legitimacy, and the court is directed not to receive material tendered to disprove it. His offer of proof is not weak evidence that the court weighs and rejects; it is evidence the court will not take at all.
The single opening the section leaves is non-access, that the couple had no access to each other at any time when the child could have been begotten. Had the provision instead said the court shall presume legitimacy, his evidence would have been received and weighed, and he would have had to make the contrary probable enough to displace the presumption. Had it said may presume, the court could have declined to presume anything and called for proof of paternity in the ordinary way. Those three settings are what the rest of this article works through.
What does a court do when the Adhiniyam says it may presume a fact?
A court faced with a may presume provision does one of two things, and it picks between them. Section 2(1)(h) of the Bharatiya Sakshya Adhiniyam, 2023 provides that whenever the Adhiniyam says 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”. The choice belongs to the court, not to the party who stands to gain from the inference.
That second limb is where may presume parts company with shall presume, and most summaries of the distinction leave it out. 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. So the discretion runs in both directions: the court may act on the inference, and it may refuse to act on it and demand the proof instead.
None of this makes the presumption evidence. In Sodhi Transport Co. v. State of U.P., (1986) 2 SCC 486, the Supreme Court put it in a line: “A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists.” The distinction matters at trial, because a party with a presumption running in their favour has a case that survives if nothing is led against it, not a case that has been proved. That is the sense in which a presumption operates in Indian evidence law generally.
Section 119 is the general power, and the way it is built shows what kind of power it is. Sub-section (1) lets the court presume the existence of any fact it thinks likely to have happened, having regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Sub-section (2) then sets out, illustration by illustration, the circumstances the court must weigh in deciding whether those maxims apply at all. A provision that supplies its own list of reasons to decline is conferring a discretion, not laying down a rule.
Three of the nine illustrations to Section 119 do most of the work in practice. A man in possession of stolen goods soon after the theft may be presumed to be the thief or a receiver, unless he can account for his possession. An accomplice may be presumed unworthy of credit unless he is corroborated in material particulars. And evidence which could be produced and is not may be presumed to be unfavourable to the person who withholds it.
The Adhiniyam uses may presume in seven places. Three of them cover documents and records the court is trusted to inspect for itself: Section 88 on certified copies of foreign judicial records, Section 89 on books, maps and charts, and Section 90 on electronic messages. In each of them the material is in front of the court, which can form its own view of whether the inference is safe to draw.
Two more turn on age. Section 92 lets the court presume that a document thirty years old, produced from custody the court considers proper, was signed and duly executed by the persons it purports to come from. Section 93 does the same for an electronic record five years old and the electronic signature on it, which is one of the places where the Adhiniyam’s treatment of electronic evidence rests on a discretionary presumption. What keeps both discretionary is the custody test, because proper custody is whatever the court in the particular case considers proper, and the illustrations to Section 92 show how wide that runs.
The seventh is a criminal provision. Section 117 lets the court presume that a married woman’s suicide was abetted by her husband or his relative, where she died within seven years of the marriage and that person had subjected her to cruelty. The section does not stop at those ingredients. It requires the court to presume “having regard to all the other circumstances of the case”, which is a second condition rather than a flourish.
Section 117 sits directly beside Section 118, and the pairing is the clearest thing the Adhiniyam says about the difference between the two expressions. Both deal with a woman’s death in her matrimonial home. Both turn on proof of cruelty. The drafter gave one the weaker verb and the other the stronger one, and that choice, not the subject matter, decides how each is argued.
The Supreme Court has said what follows from the weaker verb. In Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, dealing with Section 113A of the Indian Evidence Act, 1872, which is now Section 117, the Court held that the presumption “is not mandatory; it is only permissive as the employment of expression ‘may presume’ suggests”. Proof of the three circumstances “shall not enable the presumption being drawn like a formula”, because the court must first have regard to all the other circumstances of the case. It declined to draw the presumption and acquitted the appellant of the charge under Section 306 of the Indian Penal Code, 1860, and the reasoning in that judgment still governs Section 117.
For anyone arguing the point, the consequence is practical. Proving the foundational facts under a may presume provision entitles a party to ask for the inference. It does not entitle them to receive it, and a submission that stops there is only half made. Under a shall presume provision the same submission is complete.
Does a shall presume direction leave the court any choice?
A shall presume direction leaves the court no choice about whether to presume, and leaves it every choice about whether the presumption survives. Section 2(1)(l) provides that whenever the Adhiniyam directs that the Court shall presume a fact, “it shall regard such fact as proved, unless and until it is disproved”. Set that beside Section 2(1)(h) and the difference is a single missing clause, because the words “or may call for proof of it” are not there.
What the direction moves is the evidential burden, not the legal one. Sodhi Transport states the effect precisely: when a presumption is rebuttable “it only points out the party on whom lies the duty of going forward with evidence on the fact presumed”. The party against whom it operates must now lead something. If they lead nothing, they lose on that fact.
The direction does not operate the moment a party asserts the facts that trigger it. In Satbir Singh v. State of Haryana, (2021) 6 SCC 1, the Supreme Court held that the presumption in a dowry death case arises only once the prosecution has established the ingredients of the offence, and that what arises is a rebuttable presumption of causation rather than conclusive proof. The foundational facts are proved in the ordinary way, and only then does the burden move, which is one of the points the guidelines in that case were framed to protect.
Section 118 is the provision that most often carries the direction. Where the question is whether a person has committed the dowry death of a woman, and it is shown that soon before her death she had been subjected by that person to cruelty or harassment for or in connection with any demand for dowry, the Court shall presume that he caused the dowry death. The Explanation ties “dowry death” to Section 80 of the Bharatiya Nyaya Sanhita, 2023. The prosecution therefore has two things to establish: the cruelty or harassment connected to a dowry demand, and its proximity to the death.
Parliament wrote “shown” rather than “proved”, and the choice was litigated. In Sher Singh @ Partapa v. State of Haryana, (2015) 3 SCC 724, the Supreme Court considered whether the lighter word lowered what the prosecution had to do, and held that “the proper manner of interpreting the Section is that ‘shown’ has to be read up to mean ‘prove’”. A drafting economy did not create a softer standard.
The proximity requirement carries its own gloss. “Soon before” is not counted in days or months. What has to be established is a live and proximate link between the cruelty and the death, so that the dowry demand reads as a continuing cause rather than a stale episode from earlier in the marriage, and Satbir Singh treats that link as the thing that shifts the onus onto the accused.
The direction bites before trial as well. In Mahesh Chand v. State of Uttar Pradesh, 2026 INSC 440, the Supreme Court set aside an order of the Allahabad High Court granting bail to a husband in a dowry death case. The High Court had treated the delay in lodging the first information report, and a post-mortem finding of asphyxia due to hanging, as grounds for release without weighing the Section 118 presumption at all. A shall presume direction is part of the material a court considers on bail, not only at the end of a trial.
Two other provisions belong to the same class. Section 120 directs the court to presume the absence of consent in a prosecution for rape under Section 64(2) of the Bharatiya Nyaya Sanhita, 2023, where intercourse by the accused is proved and the woman states in her evidence that she did not consent. Section 108 runs the other way and operates against the accused: where he claims the benefit of a General Exception, the burden of proving those circumstances is on him, and the Court shall presume their absence.
The accused carries the evidential burden under a shall presume direction
The accused must disprove the presumed fact, and the Adhiniyam says what disproving takes. Section 2(1)(c) defines “disproved”: the court either believes the fact does not exist, or considers its non-existence “so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist”. That is a standard of probability, and it is the deliberate mirror image of the definition of “proved” in Section 2(1)(j).
For the presumptions in the Negotiable Instruments Act, 1881 the Supreme Court has fixed the standard at preponderance of probabilities. In Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513, the Court held that an accused is not expected to prove his defence beyond reasonable doubt, that the standard required of him is preponderance of probabilities, and that a bare denial of consideration and debt will not do. He must bring probable facts and circumstances on record. Once he does, the evidential burden shifts back to the complainant.
How far a presumption reaches is a separate question from the standard for rebutting it. In Rangappa v. Sri Mohan, (2010) 11 SCC 441, the Supreme Court held that the presumption under Section 139 extends to the existence of a legally enforceable debt or liability, and described the provision as a reverse onus clause enacted to improve the credibility of negotiable instruments. The accused can still contest it by showing a reasonable probability that no such debt existed, which is the shape most defences take in a cheque bounce prosecution.
The standard is not uniform across provisions, and it is worth knowing where it diverges. In Sher Singh the Court held that the husband’s deemed culpability under the dowry death presumption “would have to be displaced and overturned beyond reasonable doubt”, and said in terms that it would not be appropriate to lessen his onus to that of preponderance of probability. That is a heavier burden than the one Kumar Exports applies, on presumptions drafted with the same two words.
Underneath the divergence sits a constant. In Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563, the Supreme Court held that the general burden of proof never shifts and always rests on the prosecution, whatever a particular presumption does to the burden of going forward with evidence. A presumption redistributes who must lead evidence next. It does not relieve the prosecution of proving its case.
One point about the definitions is easy to miss on a first reading. Section 2(1)(l) is drafted to govern directions given “by this Adhiniyam”, and Sections 118 and 139 of the Negotiable Instruments Act, 1881 sit outside it. Courts read the same meaning into “shall presume” wherever the phrase appears. Sodhi Transport did exactly that for Section 28-B of the Uttar Pradesh Sales Tax Act, 1948, and upheld the presumption there as rebuttable, while Kumar Exports read Sections 118 and 139 of the Negotiable Instruments Act together with the definitions of “may presume” and “shall presume” in the evidence statute.
Can conclusive proof ever be disproved?
Conclusive proof cannot be disproved in the ordinary way, because the court is directed not to receive the disproving evidence at all. Section 2(1)(b) provides that where one fact is declared by the 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”. The bar operates on the evidence, not on the party’s chances of persuading anyone.
That makes it a different kind of obstacle from the one a shall presume direction creates. A party facing a shall presume direction has a hard case: they must lead material and make the non-existence of the fact probable. A party facing conclusive proof has no case to put, because the tender of their evidence is refused before its weight is ever assessed. Losing on the evidence and being refused a hearing on it are not the same thing.
Anyone moving from the old Act to the new one should note where these definitions went. In the Indian Evidence Act, 1872 all three expressions lived inside a single provision, Section 4, so a reader met them together and in ascending order of strength. The Adhiniyam arranges its definitions alphabetically, so conclusive proof is at Section 2(1)(b), may presume at Section 2(1)(h) and shall presume at Section 2(1)(l), with proved, disproved and not proved at Sections 2(1)(j), 2(1)(c) and 2(1)(i). The words themselves were carried across unchanged, and Section 170 repealed the 1872 Act with effect from 1 July 2024, saving proceedings already pending on that date.
Two provisions teach the concept by denying it. Section 25 says that admissions “are not conclusive proof of the matters admitted but they may operate as estoppels”. An admission therefore stays open to explanation by the party who made it, and the party relying on it gets the benefit of an estoppel rather than of a closed question.
Section 36 does the same for judgments. Judgments, orders and decrees outside Section 35 are relevant if they relate to matters of a public nature, but they “are not conclusive proof of that which they state”. The illustration repays reading: A sues B for trespass, B alleges a public right of way over the land, and a decree in an earlier suit brought by A against a different defendant, in which that defendant alleged the same right of way, is relevant but does not settle whether the right exists.
The first of the two affirmative provisions is Section 35. Under sub-section (2), a final judgment, order or decree of a competent Court or Tribunal exercising probate, matrimonial, admiralty or insolvency jurisdiction is conclusive proof of four things: that a legal character it confers accrued when the judgment came into operation, that a legal character it declares accrued when the judgment says it accrued, that a legal character it takes away ceased when the judgment says it ceased, and that anything it declares a person entitled to was that person’s property from the date the judgment fixes.
Take a grant of probate. Once it is made, a party in later litigation cannot lead evidence that the executor never took the character the grant confers, because Section 35(2) makes the grant conclusive proof of that character and of the date from which it accrued. These judgments get the treatment because they operate against the world rather than between two named parties, so reopening them collaterally would unsettle everyone who has relied on them. Compare Section 36, where a decree about a right of way binds the parties to it and informs a later court, and does no more than that.
The second is Section 116. The fact that a person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution with the mother remaining unmarried, is conclusive proof that he is the legitimate child of that man. The section then carries its own opening, because that holds “unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten”. Non-access is a condition on the presumption arising, not a rebuttal of it once it has arisen, which is how a section can be conclusive and still leave a door open.
The Supreme Court read the two provisions together in Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418. It held that Section 112 of the 1872 Act, read with Section 4, debars evidence except in cases of non-access, and that courts in India cannot order a blood test as a matter of course, because neither the Code of Criminal Procedure nor the Evidence Act empowered them to do so. A party asking for the test has to make out a strong prima facie case of non-access first.
One drafting style in the Adhiniyam belongs to neither camp. 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 when firearms or explosives were used from there to attack or resist the armed forces or forces maintaining public order, “it shall be presumed, unless the contrary is shown, that such person had committed such offence”. The formula is not defined in Section 2(1) at all, and it reads as a mandatory rebuttable presumption in the same family as shall presume.
The Supreme Court weighs a DNA report against the conclusive proof of legitimacy
A DNA report that a court itself directed, and that already sits on the record, cannot be ignored when it conflicts with the presumption of legitimacy. That is where the Supreme Court stood in Nikhat Parveen v. Rafique, 2026 INSC 399. The mother had claimed maintenance of Rs 25,000 a month for her minor daughter under the Protection of Women from Domestic Violence Act, 2005, and a court-directed DNA report on the record excluded the respondent as the father. The appeal seeking maintenance for the daughter was dismissed.
The Court reached that result on reasoning it took from Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576, which it quoted: where there is evidence to the contrary the presumption is rebuttable and must yield to proof, and “when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement … the latter must prevail”. Read literally, that lets a scientific report do what Section 2(1)(b) says no evidence may do.
The same judgment records the opposite emphasis. From Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, it noted that even the result of a genuine DNA test cannot escape the conclusiveness of the presumption, and that where a husband and wife were living together at the time of conception the conclusiveness in law would remain irrebuttable in the absence of proof of non-access. The two lines are not reconciled in the judgment, and a reader is better served by seeing that than by being handed a rule the Court has not laid down.
A year earlier the Court had gone the other way on different facts. In Ivan Rathinam v. Milan Joseph, 2025 INSC 115, it held that the presumption could not be displaced merely because the appellant was alleged to have had a relationship with the child’s mother, set aside the orders of the Kerala High Court and the Family Court, and quashed the maintenance proceedings. An allegation is not evidence of non-access, and the section is engaged by the marriage rather than by anyone’s conduct outside it.
Reading these alongside Goutam Kundu, two questions have to be kept apart, and most secondary summaries run them together. The first is whether a court should order a DNA test at all. The second is what a court does with a report it already has. The case law has held steady on the first and moved on the second.
On the first question Nikhat Parveen is explicit that it is not an endorsement of routine DNA testing in maintenance cases. A court must first consider the evidence already before it bearing on the presumption of legitimacy, and only where that evidence is insufficient should it consider ordering a test. That keeps the gatekeeping in Goutam Kundu intact, because the test is not available for the asking and a party who wants one still has to make out the case for it.
Two things remain unsettled. It is not clear what a court should do with a report obtained without any court direction and simply tendered by a party, since the reasoning in Nikhat Parveen turns partly on the report having been directed by a court and already forming part of the record. Nor has the Court reconciled the Nandlal Badwaik line with the emphasis in Aparna Firodia on facts where access is not in doubt. Until it does, the safer reading is that Section 116 still bars the evidence, and that a report already on the record by the court’s own order is the exception rather than the new rule.
Frequently asked questions
What is the difference between may presume and shall presume?
The difference is whether the court has a choice. Under a may presume provision, Section 2(1)(h) lets the court either regard the fact as proved unless and until it is disproved, or call for proof of it instead. Under a shall presume provision, Section 2(1)(l) removes that second option, so the court must regard the fact as proved unless and until it is disproved. Both are rebuttable, and in both the party against whom the presumption runs carries the duty of going forward with evidence.
Which sections of the Bharatiya Sakshya Adhiniyam define may presume, shall presume and conclusive proof?
All three sit in the definition clause, Section 2(1). Conclusive proof is at Section 2(1)(b), may presume at Section 2(1)(h) and shall presume at Section 2(1)(l). In the Indian Evidence Act, 1872 the three were together in Section 4, and the Adhiniyam lists its definitions alphabetically, which is why they are now apart. The related definitions of proved, disproved and not proved are at Sections 2(1)(j), 2(1)(c) and 2(1)(i).
Can conclusive proof ever be rebutted?
Not by leading evidence against the presumed fact, because Section 2(1)(b) directs the court not to allow that evidence to be given. What a party can do is attack the fact that triggers the provision, or bring the case within a condition written into the section itself. Section 116 is the example, because the conclusive proof of legitimacy does not arise where it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.
What is the difference between a presumption of fact and a presumption of law?
A presumption of fact is an inference a court draws from experience and is free to decline, and the may presume provisions, Section 119 in particular, are of that kind. A presumption of law is one the statute directs, and it comes in two strengths: the rebuttable kind, expressed as shall presume, and the irrebuttable kind, expressed as conclusive proof. The practical test is whether the court can refuse to draw the inference, and whether the other side is allowed to lead evidence against it.
Does the burden of proof shift when the court shall presume a fact?
The evidential burden shifts and the legal burden does not. Sodhi Transport describes a rebuttable presumption as something that “only points out the party on whom lies the duty of going forward with evidence on the fact presumed”, and Dahyabhai Chhaganbhai Thakker holds that the general burden of proof never shifts and always rests on the prosecution. So the accused must lead something to displace the presumed fact, while the prosecution still has to prove its case.
References
- The Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023), India Code (text as on 6 October 2025). Section 2(1) definitions, and Sections 25, 35, 36, 78, 88 to 93, 108, 115 to 120 and 170.
- Notification S.O. 849(E) dated 23 February 2024, Gazette of India, Extraordinary, Part II, section 3(ii), bringing the Bharatiya Sakshya Adhiniyam, 2023 into force on 1 July 2024.
- The Indian Evidence Act, 1872, India Code (for Sections 4, 41, 105, 111A, 112, 113A, 113B, 114 and 114A, now Sections 2(1), 35, 108, 115, 116, 117, 118, 119 and 120 of the Adhiniyam).
- Nikhat Parveen @ Khusboo Khatoon v. Rafique @ Shillu, 2026 INSC 399 (Supreme Court of India, 21 April 2026), reported at 2026 LiveLaw (SC) 406.
- Mahesh Chand v. State of Uttar Pradesh and Anr., 2026 INSC 440 (Supreme Court of India, 30 April 2026), reported at 2026 LiveLaw (SC) 452.
- Ivan Rathinam v. Milan Joseph, 2025 INSC 115 (Supreme Court of India, 28 January 2025), reported at 2025 LiveLaw (SC) 118 and 2025 SCC OnLine SC 175.
- Satbir Singh v. State of Haryana, (2021) 6 SCC 1 (Supreme Court of India, 28 May 2021).
- Sher Singh @ Partapa v. State of Haryana, (2015) 3 SCC 724 (Supreme Court of India, 9 January 2015).
- Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 (Supreme Court of India), as quoted in Nikhat Parveen.
- Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (Supreme Court of India, 2023), as quoted in Nikhat Parveen.
- Rangappa v. Sri Mohan, (2010) 11 SCC 441 (Supreme Court of India, 7 May 2010).
- Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 (Supreme Court of India).
- Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 (Supreme Court of India, 17 October 2001).
- Goutam Kundu v. State of West Bengal and Anr., (1993) 3 SCC 418 (Supreme Court of India, 14 May 1993).
- Sodhi Transport Co. and Anr. v. State of U.P. and Anr., (1986) 2 SCC 486 (Supreme Court of India, 20 March 1986); AIR 1986 SC 1099.
- Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563 (Supreme Court of India, 19 March 1964).
This article is for informational and educational purposes only and does not constitute legal advice. Readers should consult a qualified advocate before acting on any statutory provision or judgment discussed above.