REFERENCE TO PRINCPLE OF LEGITIMACY
Mr. Kishor Bista
Mr. Bishow Mani Pokharel
Subject: Evidence Law
Ms. Binita Pandey
Kathmandu School of Law
L.L.B 3rd year
Date of submission: 28 Baisakh 2068
TABLE OF CONTENT
Table of Abbreviations
Table of Cases
Table of Statutes
1. Chapter I
1.5 Organization of study
2. Chapter II
2.1 Defining Presumptions
2.1.1Kinds of Presumption
2.2 Defining Presumption of Legitimacy
2.2.1 The social benefits served by the presumption of legitimacy 2.2.2 The determining of paternity and the forensic science 2.3 Application of Presumption of legitimacy in Nepal
2.3.1 Legal Provision
2.3.2 Judicial decision on the Principle of legitimacy
3. Chapter III
TABLE OF ABBREVIATIONS
AIRAll India Report
NKPNepal Kanoon Patrika
TABLE OF STATUTES
Evidence Act 2031
Muluki Ain 2020
TABLE OF CASES
Bacchi Bista v. Kabinddra Bista, NKP 2034
Bal Krishna Subedi v. Kuntimaya Subedi, NKP 2-42, Vol.12, page 1105 Bhajan Yadav v. Kariwati Yadavni, NKP 2041, Vol.8, DB decision no:2093, page 736 Kamti Devi v. Poshi Ram, (2001) 5 SCC 311
Kedar Manandhar v. Purna Laxmi Manandharni, NKP 2018, F.B. – 3, decision no: 153, page 124 Michael H. v. Gerald D., 491 U.S. 110, 131 (1989) (Scalia, J., plurality opinion) Ram Jas v. Surendra AIR 1980 All 385(388) FB:1980 ALL W.C.730 Ratna Sambhav Tuladhar v. Sonam Tuladhar, NKP 2041, Vol.5 FB- 3, decision no.1987, page 424 Roshan Maharjan v. Siddhilal alias Bhuyucha Maharjan, NKP 2063, Vol.11, DB, Decision no:7784, page 1420 Sodhi Transport Co. v. State of U.P (1986) 2SCC 486: AIR 1986 SC 1099 (1105 – 1106) Tribhuvan University Office v. Bishnu Prasad Sharma etal, NKP 2043, p417
In absence of absolute certainty, we resort to presumptions. The word ‘presume’ means “supposed to be”. The word ‘presumption’ means “an inference from known facts”. ‘Presumption is an inference, which takes place in the absence of absolute certainty as to truth or falsehood of a fact. In other words, presumption is an inference drawn by the court as to the truth of a particular fact, from other known or proved facts.
In Law of Evidence, a presumption is a conclusion or inference as to the truth of some fact in question, drawn from some other fact judicially noticed or proved or admitted to be true. Presumptions are drawn from the course of nature, the usage of society and transactions in business.
A Full Bench of the Allahabad High Court has held in Ram Jas v. Surendra Nath that law of Evidence does not effect substantive rights of parties, but only lay down law for facilitating the course of Justice. The presumptions under the Evidence Act are only the inferences which a logical and reasonable mind normally draws. Whenever, the law permits the raising of a presumption the Court can by reason of Section 4 of Evidence Act raise the presumption of proof of a fact. If the presumption is available in one section it can raise it under that Section if it is not available in one Section and is available in another Section, then the court can raise presumption under that Section. It all depends upon the circumstances available in the case as applicable to a particular document.
Presumption is not Evidence itself. It is the inferences, drawn by the court during the proceeding of the case until other aspect is not proved. After the collection of evidence is finished the court then decides whether to be guided by presumption or not.
In a case of The Office of Tribhuvan University v. Bishnu Prasad Sharma etal. the Supreme court decided the Presumption is not evidence in itself. It is just inferences taken by judges while deciding the case.