Presumptions, judicial notice and presumption of legitimacy - Bharatiya Sakshya Adhiniyam

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1. Kinds of presumption
2. The general presumption: section 119
3. Judicial notice: sections 51 to 53
4. Section 116: legitimacy
5. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The justification in one line. A presumption lets the Court treat a fact as proved because experience shows that, given certain other facts, it is very likely true, or because policy demands it. It saves proof of the obvious and fixes who has to rebut. Judicial notice goes one step further: some facts need no proof at all. Section 116 on legitimacy is the strongest presumption in the Adhiniyam and is a regular six-mark question.

1. Kinds of presumption

Presumptions of fact (natural presumptions): inferences the Court may draw from the course of nature and human conduct. They are discretionary and rebuttable.
Presumptions of law, which are either rebuttable (the Court must draw them until disproved) or irrebuttable (conclusive).
Mixed presumptions of law and fact, such as the presumption of a lost grant from long enjoyment.

The Adhiniyam puts the same scheme into three expressions defined in section 2(1) (old s.4):

“May presume” (s.2(1)(h)): the Court may either regard the fact as proved, unless and until disproved, or may call for proof of it. The Court has a choice. Example: section 119, section 117.
“Shall presume” (s.2(1)(l)): the Court shall regard the fact as proved unless and until it is disproved. No choice, but rebuttable. Example: section 118 (dowry death), section 120 (absence of consent).
“Conclusive proof” (s.2(1)(b)): on proof of one fact the Court shall regard the other as proved and shall not allow evidence to disprove it. Example: section 116 (legitimacy), subject only to the non-access clause.

2. The general presumption: section 119

Section 119(1) (old s.114) allows the Court to 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. Its illustrations are maxims of experience. The Court may presume that:

(a) a man in possession of stolen goods soon after the theft is the thief or a receiver, unless he accounts for his possession;
(b) an accomplice is unworthy of credit unless corroborated in material particulars;
(c) a bill of exchange was accepted or endorsed for good consideration;
(d) a thing shown to exist continues to exist for its usual period;
(e) judicial and official acts have been regularly performed;
(f) the common course of business has been followed;
(g) evidence which could be and is not produced would be unfavourable to the person who withholds it;
(h) a man who refuses to answer a question he is not compelled to answer would have given an unfavourable answer;
(i) a document creating an obligation, found in the hands of the obligor, has been discharged.

Section 119(2) lists counter-facts the Court must weigh before applying each maxim (the shopkeeper with a marked rupee, the river whose course may have changed in floods). Because the section uses “may,” the presumptions are never automatic. In Earabhadrappa v. State of Karnataka, 1983 INSC 23, (1983) 2 SCC 330, the Court applied illustration (a) where the accused was found with the deceased’s ornaments shortly after a murder and robbery and gave no explanation, holding that the presumption could extend to the murder where the robbery and murder formed one transaction.

3. Judicial notice: sections 51 to 53

Section 51 (old s.56) says no fact of which the Court will take judicial notice need be proved. Section 52 (old s.57) lists the facts the Court shall notice, including:

all laws in force in India, including laws with extra-territorial operation;
international treaties, agreements and conventions entered into by India, and decisions of India at international bodies (a new clause in the BSA);
the course of proceedings of the Constituent Assembly, Parliament and State Legislatures;
seals of courts and tribunals and seals authorised by law;
accession to office, names and signatures of public officers notified in the Gazette;
the existence, title and flag of every country recognised by India;
divisions of time, geographical divisions of the world, and notified festivals and holidays;
the territory of India; the commencement and end of hostilities;
names of members and officers of the Court and of advocates entitled to appear; and
the rule of the road on land or at sea.

Under section 52(2) the Court may consult books of reference on these matters and on public history, literature, science or art, and may refuse to take notice until the party produces the book. The list is not closed: Courts also notice matters of common knowledge. In Onkar Nath v. Delhi Administration, 1977 INSC 55, (1977) 2 SCC 611, the Court took judicial notice of the nationwide railway strike of 1974 as a fact of common knowledge. Section 53 (old s.58) adds that facts admitted by the parties at or before the hearing, or deemed admitted by the pleadings, need not be proved, though the Court may require proof.

4. Section 116: legitimacy

Section 116 (old s.112): the fact that a person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, is conclusive proof that he is the legitimate child of that man, unless it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Points to make:

The presumption rests on public policy: the status of a child should not be left in doubt, and courts lean against bastardising a child.
The only way out is proof of non-access, meaning no opportunity of sexual intercourse. Proof that the wife also had intercourse with another man is not enough.
The section does not fix a minimum period of gestation. A child born the day after a valid marriage is covered.
A child born within 280 days after dissolution is covered only if the mother has not remarried.

The cases: in Goutam Kundu v. State of West Bengal, 1993 INSC 214, (1993) 3 SCC 418, the Court held that courts cannot order blood tests as a matter of course to disprove paternity; the husband must first make out a strong prima facie case of non-access. In Kanti Devi v. Poshi Ram, 2001 INSC 276, (2001) 5 SCC 311, the Court held that where access was shown, a DNA test result could not displace the conclusive presumption. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, 2014 INSC 9, (2014) 2 SCC 576, where two DNA reports excluded the husband, the Court held that scientific proof must prevail and set aside the order of maintenance for the child. In Ivan Rathinam v. Milan Joseph, 2025 INSC 115, the Court returned to the text: the presumption, unless displaced by proof of non-access, determines paternity in law, and a DNA test is not to be ordered unless non-access is first made out. The full discussion of these cases, and of how section 116 overrides the older Muslim law rules on gestation, is in the Family Law II note Parentage, legitimacy and acknowledgment of paternity.

5. Problem

A was the wife of B. Two months after B’s death she marries C. Five months after the marriage a son D is born. Discuss D’s legitimacy.

Issue. Whether D is presumed the legitimate son of B or of C.

Law. Section 116: birth during the continuance of a valid marriage is conclusive proof of legitimacy as the child of the husband, unless non-access is shown; birth within 280 days after dissolution raises the presumption in favour of the former husband only if the mother remained unmarried.

Application. D is born about seven months (some 210 days) after B’s death, so within 280 days of the dissolution of the first marriage. But A did not remain unmarried, so the second limb of section 116 does not apply in favour of B. D was born during the continuance of a valid marriage between A and C. The section sets no minimum period of gestation, so the first limb applies even though the marriage was only five months old.

Conclusion. D is conclusively presumed to be the legitimate son of C, unless C proves that he and A had no access to each other at any time when D could have been begotten. Since they married five months before the birth and the child may have been conceived before the marriage, C could only rebut the presumption by showing non-access; a mere allegation that the child is B’s is not enough.

How this is examined

“Presumption as to legitimacy of child” is a short note in June 2025 and February 2025; the widow’s remarriage problem was set in January 2026. “May presume, shall presume and conclusive proof” was a short note in January 2026 (Unit I). “Explain the doctrine of judicial notice” and “the facts of which the Court must take judicial notice” have been set as ten-mark questions (June 2025, February 2025); for those, give sections 51 to 53 with the full list in section 52 and one line on common knowledge.