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Indian Evidence Act, 1872 · Chapter VII: Of the Burden of Proof

Section 102: On whom burden of proof lies

The Indian Evidence Act, 1872 was repealed and replaced by the Bharatiya Sakshya Adhiniyam, 2023 from 1 July 2024. It still applies to offences and proceedings from before that date.

Now in the BSA section 105 (On whom burden of proof lies)

In plain words

The burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given by either side.

Example: A sues B on a bond whose execution is admitted, but B claims it was obtained by fraud. Without evidence A would win, so B must prove the fraud.

A simplified explanation, prepared with AI assistance from the official text below and checked automatically against it for numbers and cross-references. The official text is the law and prevails over this summary. Not legal advice.

Read the in-depth explanation, with key Supreme Court rulings ↓

Official text

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustrations

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.

(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.

Corresponding sections were matched by comparing the wording of both official texts, and for the IPC and BNS, also against a published correspondence table. Wording, punishments and structure often changed, so read both sections before relying on the match.

Source: India Code (Legislative Department), the text of the Act as it stood before its repeal. Words in square brackets [ ] were inserted or substituted by later amending Acts, and *** marks words omitted by an amendment. The amendment footnotes are not reproduced here.

Understanding this section

Section 102 gives a practical test for who carries the burden of proof in a suit or proceeding: the person who would fail if no evidence at all were given on either side.

The test

Imagine neither side leads any evidence. Whoever would lose bears the burden. A plaintiff suing for land in another's possession, claiming under a will, would lose without evidence, so the burden is on him.

Relation to section 101

Section 101 says the person asserting facts must prove them; section 102 identifies who that is in the overall case. Section 103 then deals with burdens on particular facts within the case.

Common mistakes

  • Confusing the overall burden in section 102 with the burden on particular facts in section 103.

Read with: Section 101 Evidence Act, Section 103 Evidence Act, Section 105 BSA

Prepared with AI assistance as a study aid. Every ruling listed was checked against the Supreme Court's own judgments on this site, and quoted words appear in those judgments; linked names open the full judgment. Read the judgments themselves before relying on them. Not legal advice.

Supreme Court judgments citing the section 102