9 Major differences between “May Presume” and “Shall Presume” are listed below:
May Presume:
1. The word “may” itself denote ‘expressing or seeking permission’. Example: “May I come in, Sir.” Giving the permission depends upon the discretion of the teacher or boss, as the case may be. “May presume” is based upon this concept.
2. The first clause of Sec. 4 of the Evidence Act defines “may presume”.
ADVERTISEMENTS:
3. According to the first clause of Sec. 4, whenever it is provided by this Act that the Court may presume a fact,—
(i) It may either regard such fact as proved, unless and until it is disproved; or
(ii) It may call for proof of it.
4. The word provided in the first clause is weaker than the word directed in the second clause.
ADVERTISEMENTS:
5. The expression may presume gives a wide discretion to the Court,—
(i) To presume a fact as proved; or
(ii) To call for proof of it.
6. Sections 86 to 90-A, 113-A, 114 and 114-A of the Evidence Act provide the necessary presumptions for “may presume”.
ADVERTISEMENTS:
7. The presumptions under the first clause of Sec. 4 (May Presume) may also be called as “Presumptions of Fact”; “Natural Presumptions”. “Permissive Presumptions”; “Rebuttable Presumptions”.
8. These presumptions do not constitute a branch of jurisprudence.
9. These are natural, permissive and rebuttable.
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Shall Presume:
1. The word ‘shall’ itself denote a “strong assertion or intention or determination”. Example: “I shall go to picture.” “Shall presume” is based upon this concept.
2. The second clause of Sec. 4 of the Evidence Act defines “shall presume”.
3. According to the second clause of Sec. 4, whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
4. The word directed in the second clause is stronger and determinative than the word provided in the first clause.
5. The expression shall presume gives no discretion to the Court, but to accept a fact as proved, unless and until it is disproved.
6. Sections 79 to 85-C, 89 and 105,111-A, 113-B of the Evidence Act provide necessary presumptions for “shall presume”.
7. The presumptions under the Second Clause of Sec. 4 (Shall Presume) may also be called as “Presumptions of Law”; “Artificial Presumptions”; “Obligatory Presumptions”; “Rebuttable Presumptions of Law”.
8. These presumptions constitute a branch of jurisprudence.
9. These are artificial, obligatory and compelling.
