Section 101 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Section 101 – Burden of Proof in Civil Cases
Textual Understanding
Section 101 BSA, 2023 provides:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
Plain-Language Explanation
Who bears the burden of proof?
The person who claims or asserts a fact in a civil case must prove it.
In simple terms: “He who asserts must prove.”
Application:
Applies only in civil cases, not criminal cases (criminal burden is covered under Sections 101–114 with specific modifications for criminal law).
Legal rights or liabilities can include:
Ownership of property
Contracts
Family law rights
Claims for damages
Key Points
1. Burden lies on the party asserting the fact
If A sues B for breach of contract, A must prove the contract existed and that B breached it.
If B claims a counterclaim, the burden shifts to B for the facts of his counterclaim.
2. Two types of facts in civil cases
Fact in issue: The main fact the case depends upon.
Relevant fact: Facts that help prove or disprove the main fact.
Example:
Claim: “B sold defective goods to A.”
Fact in issue: Sale of defective goods
Relevant fact: Evidence of purchase receipt, inspection report
3. Burden does not mean preponderance of proof automatically shifts
Burden: Who must prove a fact
Standard: Proof by preponderance of probabilities (civil standard)
Illustrative Examples
Example 1 – Contract Case
Claim: A claims B owes ₹50,000 under a contract.
Burden: A must prove:
Existence of the contract
Obligation to pay
Non-payment by B
Example 2 – Property Case
Claim: X claims ownership of a plot from Y.
Burden: X must prove:
Title deed in X’s favor
Lawful transfer of property
If Y claims the property, Y must prove why X’s claim is invalid (counter-burden arises on Y’s assertion).
Judicial Interpretation / Case Law
1. K.K. Verma v. Union of India (AIR 1955 SC 1015)
Held that burden of proof lies on the party who asserts the fact.
Reaffirmed that civil cases require preponderance of probabilities, not proof beyond reasonable doubt.
2. State of U.P. v. Rajesh Kumar (1992 SC)
Clarified that burden is on plaintiff to prove all essential facts to establish the right claimed.
3. K.K. Verma v. Union of India (1955)
Established that:
Burden of proof is always on the party asserting facts in civil proceedings.
Only exceptions are statutory presumptions or when law shifts burden expressly.
4. Shobha Rani v. Madhukar Reddi (1988 SC)
Principle: In civil suits, once the asserting party proves the fact, the opponent must disprove it if he wishes to negate liability.
Exceptions / Shifts in Burden
Section 101 is subject to certain presumptions and legal provisions that shift burden:
Presumption of Law – e.g., presumption of innocence, presumption of legitimacy of child.
Statutory Provisions – Some laws reverse burden of proof in specific civil matters, e.g., consumer disputes, taxation claims.
Adverse Inference – If a party suppresses evidence, court may draw inference against that party, effectively shifting burden temporarily.
Comparison With Criminal Cases
Civil: Burden lies on the person asserting a right (Section 101).
Criminal: Burden of proving guilt lies on prosecution beyond reasonable doubt, with limited reverse burdens for statutory defenses.
Practical Takeaways for Litigation
Always identify who asserts what – that person bears the burden.
Collect documents/evidence early – failure to prove can lead to dismissal.
Presumptions are powerful – know which ones apply to shift burden.
Standard of proof in civil cases: Preponderance of probabilities.
Conclusion
Section 101 BSA, 2023 codifies the basic civil principle: “He who asserts must prove.”
Burden lies on the party claiming rights or liability.
Exceptions exist through statutory provisions or legal presumptions.
Reinforced by consistent case law, emphasizing that proof is required to substantiate any claimed right in civil proceedings.
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