“Burden of Proof in Cases of Gender-Based Violence: A Study of Judicial Trends in India.”

By Niroopama of Lovely Professional University 

Abstract

The principle of burden of proof forms the cornerstone of criminal jurisprudence, ensuring that no individual is convicted unless their guilt is proven beyond reasonable doubt. However, when applied to cases of gender-based violence (GBV)—including rape, sexual harassment, dowry-related deaths, and domestic abuse—this principle faces distinctive challenges. The inherently private nature of such offences, coupled with societal stigma and unequal power dynamics, often makes it difficult for survivors to present direct or corroborative evidence.

This research paper explores how Indian courts have interpreted and adapted the doctrine of burden of proof in GBV cases to promote substantive justice. It examines relevant statutory provisions and landmark judgments under the Indian Evidence Act, 1872, and their contemporary reinterpretation within the framework of the Bharatiya Sakshya Adhiniyam, 2023. Through an analysis of judicial precedents, the paper highlights a gradual shift toward a victim-centric approach, where the evidentiary process is designed to safeguard the dignity of survivors while maintaining fairness for the accused.

Further, the study traces the evolution of statutory presumptions such as those under Sections 113-A and 113-B of the Evidence Act, which allow for a partial shifting of the evidentiary burden in cases involving cruelty and dowry deaths. It also considers the growing role of digital and electronic evidence, now formally recognized under the 2023 Adhiniyam, and its potential to reshape future GBV trials.

In conclusion, while the Indian judiciary has demonstrated increasing sensitivity and adaptability in addressing evidentiary challenges in gender-based offences, a consistent, reform-driven, and survivor-oriented approach is still required. Only by ensuring a balanced interpretation of the burden of proof can the criminal justice system effectively protect both the rights of the accused and the pursuit of justice for survivors.

Introduction

Gender-based violence (GBV) remains one of the most pervasive and deeply entrenched social issues in India. It not only exposes the enduring inequality between men and women but also highlights the structural and cultural barriers that prevent survivors from accessing justice. Offences such as rape, sexual assault, domestic violence, dowry deaths, and harassment often take place behind closed doors, leaving minimal or no direct evidence. In such circumstances, the burden of proof—a foundational principle of criminal law—becomes a critical factor in determining whether justice is served or denied.

Traditionally, under the criminal justice framework governed by the Indian Evidence Act, 1872, the doctrine of presumption of innocence requires that the prosecution bear the full burden of proving the guilt of the accused beyond reasonable doubt. This safeguard protects individuals from wrongful conviction. However, in the context of gender-based violence, a rigid application of this principle can place victims at a disadvantage. Many survivors already face social stigma, psychological trauma, and systemic apathy, which make it difficult to gather corroborative evidence or meet the demanding threshold of proof. Consequently, numerous legitimate cases fail not because the allegations lack truth, but because the evidence falls short of the conventional standard. Over time, the Indian judiciary has acknowledged these challenges and adapted the evidentiary framework to ensure greater gender sensitivity and fairness. Courts have repeatedly held that the credible testimony of a victim, even without corroboration, can be sufficient for conviction in sexual offence cases. Legislative reforms have also responded to the unique nature of such crimes by introducing reverse burden clauses and statutory presumptions, such as those under Sections 113-A and 113-B of the Evidence Act, which apply in cases involving cruelty and dowry-related deaths. These provisions signify a conscious move toward balancing the scales of justice in favour of victims, without compromising the fundamental rights of the accused.

The enactment of the Bharatiya Sakshya Adhiniyam, 2023, represents a major step in the modernization of India’s evidentiary law. Replacing the colonial-era framework, the new legislation formally recognizes electronic and digital forms of evidence, enhances procedural safeguards, and strengthens mechanisms for protecting vulnerable witnesses, including survivors of gender-based offences. It reflects India’s constitutional vision of gender equality and its international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

In this backdrop, analysing the burden of proof in gender-based violence cases becomes essential for understanding how the justice system balances competing interests—the presumption of innocence of the accused and the right of the victim to fair and effective redress. This research seeks to explore the evolving judicial interpretations, legislative developments, and the role of emerging evidence in shaping a more equitable approach to justice in gender-based violence cases in India.

Literature Review

The issue of burden of proof in cases of gender-based violence (GBV) has been the subject of extensive debate among legal scholars, jurists, and policymakers in India. Its evolution reflects the intersection of criminal jurisprudence, human rights discourse, and feminist legal theory. The existing literature demonstrates how Indian courts and lawmakers have sought to balance the presumption of innocence with the need to secure justice for victims of gender-based crimes.

1. Historical Foundations and Legal Framework

The Indian Evidence Act, 1872, drafted by Sir James Fitzjames Stephen during the colonial era, laid down the basic principles governing the burden of proof in criminal proceedings. It emphasized the prosecution’s duty to establish guilt beyond reasonable doubt—a standard designed to safeguard individuals from wrongful conviction. However, this rigid evidentiary framework often proved inadequate in cases involving offences committed in private settings, such as domestic violence and sexual assault.

Legal scholars like Ratanlal and Dhirajlal (The Law of Evidence, 25th ed., 2018) have observed that the original structure of the Act was primarily tailored to regulate commercial and property disputes, not crimes rooted in gender and social inequality. Consequently, this created systemic barriers for victims of GBV, who were often unable to satisfy the strict evidentiary standards required for conviction.

2. Feminist Legal Scholarship and Gender Sensitivity

Feminist legal theorists, including Ratna Kapur and Brenda Cossman, have consistently emphasized the importance of interpreting evidentiary rules through a gender-sensitive perspective. In their seminal work Subversive Sites: Feminist Engagements with Law in India (1996), they highlight how patriarchal assumptions embedded within legal processes often silence women’s voices and delegitimize their lived experiences.

The 172nd Law Commission Report (2000) echoed similar concerns, recommending crucial reforms in rape laws, such as redefining consent and relaxing the mandatory requirement of corroboration of the victim’s testimony. These insights collectively underline the need for a reformed evidentiary system that recognizes the structural disadvantages faced by women in seeking justice.

3. Judicial Interpretation and Evolving Standards

Judicial interpretation has been instrumental in reshaping evidentiary standards in GBV cases. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983), the Supreme Court held that the credible testimony of the prosecutrix alone can suffice for conviction. This landmark ruling was reinforced in State of Punjab v. Gurmit Singh (1996), where the Court observed that demanding corroboration in every rape case reflects a patriarchal and outdated mindset.

Further, in Gurbachan Singh v. Satpal Singh (1990) and Kans Raj v. State of Punjab (2000), the judiciary upheld statutory presumptions under Sections 113-A and 113-B of the Evidence Act, effectively shifting part of the evidentiary burden to the accused in cases of cruelty and dowry deaths. These decisions represent a decisive move toward a victim-centric approach, balancing procedural fairness with the imperative of protection for vulnerable individuals.

4. Legislative Developments and Reform Movements

The Criminal Law (Amendment) Act, 2013, enacted in the aftermath of the Nirbhaya case, marked a turning point in India’s legal response to gender-based violence. It broadened the definitions of sexual offences, enhanced punishments, and emphasized speedy trial mechanisms.

More recently, the Bharatiya Sakshya Adhiniyam, 2023, has further modernized India’s evidentiary framework. By recognizing electronic and digital evidence (Sections 61–65), it aims to strengthen the investigation and prosecution of crimes such as online harassment and cyberstalking. Legal scholars like Prof. N.V. Paranjape and Avtar Singh have noted that these reforms signify India’s continuing efforts to harmonize domestic legal principles with constitutional morality and international human rights commitments, particularly those under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979.

5. Critical Perspectives and Remaining Gaps

Despite the progressive nature of these reforms, academic literature continues to point out existing gaps in implementation. Scholars argue that while the judiciary has shown increasing empathy toward victims, inconsistencies persist across jurisdictions. Issues such as procedural delays, lack of effective witness protection, and deep-rooted social biases continue to undermine survivors’ confidence in the justice system.

Critics also caution that while presumptions and reverse burden clauses are necessary to protect victims, they must be applied judiciously to avoid compromising the fundamental presumption of innocence. The central challenge, therefore, lies in maintaining a fair equilibrium—ensuring that measures designed to empower victims do not inadvertently erode the principles of due process and fair trial.

Relevance of the Topic and Objectives

Relevance of the Topic

The question of the burden of proof in cases of gender-based violence (GBV) is one of the most pressing and complex issues in India’s legal landscape. Gender-based violence—which includes acts such as rape, sexual assault, domestic abuse, dowry-related deaths, and harassment—continues to be a profound violation of human rights and a major barrier to achieving genuine gender equality. Despite the existence of strong laws and judicial reforms, conviction rates in GBV cases remain disappointingly low. A key reason for this is the challenge victims face in proving their cases, as these crimes often take place in private settings, leaving behind little or no direct evidence.

Traditionally, under the Indian Evidence Act of 1872, the burden of proof lies solely on the prosecution, and the accused enjoys the presumption of innocence until guilt is established beyond reasonable doubt. While this principle is fundamental to ensuring a fair trial and protecting against wrongful convictions, it can unintentionally disadvantage victims of gender-based violence. Many survivors struggle to produce tangible proof or eyewitnesses, as fear, social stigma, and emotional trauma often prevent them from coming forward or fully participating in the legal process.

Acknowledging these realities, the Indian judiciary and legislature have gradually developed a more sensitive approach to evidentiary standards in GBV cases. The introduction of statutory presumptions under Sections 113-A and 113-B of the Evidence Act—dealing with cruelty and dowry deaths—was a major step toward addressing the imbalance between the rights of victims and the accused. More recently, the Bharatiya Sakshya Adhiniyam, 2023, has modernized India’s evidentiary framework by recognizing digital and electronic evidence, thereby expanding the scope of proof in cases involving online abuse, cyberstalking, and other modern forms of gender-based violence.

The relevance of this research lies in examining how these legal and judicial developments have shaped the balance between the protection of victims and the preservation of due process rights. It also highlights how courts interpret and apply these evidentiary standards in practice, ensuring that justice is not hindered by outdated procedural constraints. Beyond its legal importance, this study holds deep social and ethical significance, as it reflects India’s ongoing effort to harmonize gender justice, human dignity, and the principles of fairness in its criminal justice system.

Objectives of the Study

 

1. 1. To study the evolution of the concept of burden of proof under the Indian Evidence Act, 1872 and its reinterpretation under the Bharatiya Sakshya Adhiniyam, 2023.

1. 1. To analyze key judicial pronouncements that have shaped the evidentiary approach in gender-based violence cases, particularly regarding the credibility of victim testimony.

1. 1. To examine statutory presumptions and reverse burden clauses, such as Sections 113-A and 113-B, and assess their role in protecting women from domestic cruelty and dowry-related violence.

1. 1. To identify challenges faced by victims in meeting the evidentiary requirements in cases where offences occur in private or within domestic spaces.

1. 1. To evaluate the impact of technological and legislative advancements, including the recognition of electronic and digital evidence, on the evidentiary process in GBV cases.

1. 1. To propose reforms and judicial best practices aimed at creating a more balanced, gender-sensitive, and effective system of evidence and proof in gender-based offences.

Research Quality and Methodology

The research adopts a doctrinal and analytical methodology, relying primarily on statutory interpretation, judicial precedents, and secondary academic literature.

Sources Used

 

1. 1. Primary Sources:
      

       

      • • Bharatiya Sakshya Adhiniyam, 2023 (Sections 104–123 on Burden of Proof).
      • • Indian Evidence Act, 1872 (for comparative analysis).
      • • Relevant provisions from the Indian Penal Code and special legislations like:
          

           

          • • The Protection of Women from Domestic Violence Act, 2005,
          • • The Sexual Harassment of Women at Workplace Act, 2013,
          • • The Criminal Law (Amendment) Acts of 2013 and 2018.

      • • Judicial decisions of the Supreme Court and High Courts interpreting evidentiary burdens in gender cases.

1. 1. Secondary Sources:
      

       

      • • Law Commission of India reports.
      • • Articles from legal journals, commentaries on evidence law, and feminist legal critiques.

Method of Analysis

The research follows a comparative approach—examining how traditional evidentiary rules have evolved in the context of gender crimes. Judicial pronouncements are analyzed chronologically to identify trends and shifts in the understanding of burden of proof. The study also examines how presumptions under law (e.g., Section 113-A and 113-B of the Evidence Act) are applied to protect women from dowry death and cruelty.

Argumentation and Critical Analysis

 

1. 1. Traditional Rule: Burden Lies on the Prosecution

Under Section 101 of the Indian Evidence Act, 1872 (now Section 104 of the Bharatiya Sakshya Adhiniyam, 2023), the fundamental rule of evidence is that “he who asserts must prove.” In criminal law, this means the prosecution bears the responsibility of proving the accused’s guilt beyond reasonable doubt. This principle forms the cornerstone of criminal jurisprudence and safeguards against wrongful convictions.

However, when applied to gender-based violence (GBV) cases such as sexual assault, domestic abuse, or dowry harassment, this rule encounters unique difficulties. These crimes often occur in private spaces, leaving little scope for direct or corroborative evidence. As a result, the testimony of the victim frequently becomes the most crucial form of evidence, compelling courts to adopt a more contextual and realistic interpretation of the burden of proof.

2. Victim’s Testimony and Judicial Sensitivity

Over the years, the Indian judiciary has recognized that victims of gender-based crimes face deep social and emotional barriers that make producing evidence extremely difficult. Hence, courts have evolved a victim-centric approach, holding that a credible victim’s testimony can, by itself, sustain a conviction.

State of Punjab v. Gurmit Singh (1996) 2 SCC 384:

The Supreme Court held that the sole testimony of the prosecutrix, if trustworthy, is sufficient for conviction. The Court emphasized that demanding corroboration in every rape case reflects a patriarchal mindset inconsistent with modern justice.

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217:

Justice Chinnappa Reddy observed that “corroboration in every rape case is not necessary,” and rejecting a woman’s testimony without reasonable grounds would be “adding insult to injury.”

State of Maharashtra v. Chandraprakash Kewalchand Jain (1990) 1 SCC 550:

The Court reaffirmed that the victim’s statement must be treated at par with that of an injured witness, reflecting the reality that the harm suffered is both physical and psychological.

Through these judgments, the judiciary has progressively lowered the evidentiary burden on victims and replaced outdated notions of distrust with empathy and fairness.

3. Statutory Presumptions and the Reverse Burden

Acknowledging the imbalance between the victim and the accused in GBV cases, the legislature introduced statutory presumptions that partially shift the burden of proof to the accused. These are found under Sections 113-A and 113-B of the Indian Evidence Act, and they continue under the new Bharatiya Sakshya Adhiniyam (BSA) framework.

Section 113-A: Presumption as to Abetment of Suicide by a Married Woman

If a woman commits suicide within seven years of marriage and evidence shows cruelty by her husband or in-laws, the court may presume that they abetted the act.

Gurbachan Singh v. Satpal Singh (1990) 1 SCC 445: The Supreme Court held that once cruelty is proved, the burden shifts to the accused to disprove abetment.

Section 113-B: Presumption as to Dowry Death

Where a woman dies under unnatural circumstances within seven years of marriage and was harassed for dowry, the law presumes the husband or his relatives responsible.

Kans Raj v. State of Punjab (2000) 5 SCC 207: The Court clarified that once cruelty is shown, the accused must rebut the presumption.

Bhanuben v. State of Gujarat (2020) 12 SCC 687: The Court reaffirmed that such presumptions are essential to combat the social evil of dowry-related deaths.

These provisions represent a shift from absolute presumption of innocence to a balanced evidentiary framework where justice for women is prioritized without completely disregarding the rights of the accused.

4. Constitutional and Human Rights Perspective

The judiciary has consistently interpreted evidentiary principles in light of constitutional values of dignity and equality.

Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490:

The Supreme Court recognized rape as a violation of the fundamental right to life and dignity under Article 21. It urged that procedural and evidentiary laws be interpreted through a gender-sensitive and rights-based lens.

State of Karnataka v. Krishnappa (2000) 4 SCC 75:

The Court observed that “sexual violence degrades the soul of a woman” and called for utmost sensitivity in adjudicating such cases, prioritizing the victim’s testimony over rigid technicalities.

These judgments affirm that the burden of proof must not become an instrument of injustice, but a tool for upholding human dignity and gender equality.

5. Dying Declarations and Domestic Violence

In many cases involving domestic cruelty or dowry deaths, dying declarations serve as critical evidence, especially when the victim cannot testify.

Khushal Rao v. State of Bombay (1958) SCR 552:

The Court held that a dying declaration, if voluntary and reliable, can alone form the basis for conviction.

P.V. Radhakrishna v. State of Karnataka (2003) 6 SCC 443:

It was held that the absence of a medical certificate should not automatically invalidate a dying declaration if it inspires confidence.

These rulings acknowledge the unique evidentiary challenges faced by victims in domestic spaces and ensure that their last words are given the weight they deserve in pursuit of justice.

6. Modern Judicial Trends and Digital Evidence

With the rise of technology, the courts have begun to accept digital evidence—such as call logs, chat records, CCTV footage, and social media messages—to substantiate allegations in GBV cases.

Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473:

The Supreme Court clarified the admissibility of electronic records under Section 65-B of the Evidence Act, marking a turning point for evidence collection in digital contexts.

The Bharatiya Sakshya Adhiniyam, 2023, simplifies the rules around electronic records, empowering victims to rely on digital evidence when physical witnesses or traditional proof are unavailable—especially relevant in cases of online harassment and cyberstalking.

7. Critical Appraisal and the Way Forward

While India’s judiciary and legislature have made remarkable progress toward victim-sensitive justice, several challenges persist. Inconsistencies in interpretation, deep-seated social biases, and procedural delays still hinder fair outcomes. In some cases, courts have reverted to stereotypical reasoning, questioning the victim’s character, conduct, or delay in reporting—thereby shifting the burden back onto her.

The path ahead requires uniform application of gender-sensitive principles across all judicial levels and greater training for judges and prosecutors to understand the realities of gender-based violence. The justice system must continue evolving so that the burden of proof serves the ends of justice, not as a barrier that silences victims.

Suggestions

Based on the analysis of existing laws, judicial precedents, and contemporary challenges surrounding the burden of proof in gender-based violence (GBV) cases, the following suggestions are proposed to strengthen the evidentiary and procedural framework in India:

1. Adoption of Gender-Sensitive Evidentiary Standards

Courts must adopt gender-sensitive interpretations of evidentiary laws, recognizing the unique circumstances of GBV cases. Traditional standards that demand strict corroboration or physical evidence often disadvantage victims. Judicial officers should be trained to assess the credibility of the victim’s testimony without bias or preconceived notions about conduct, dress, or delay in reporting.

2. Mandatory Judicial and Police Training

There is an urgent need for periodic training and sensitization of police officers, prosecutors, and judges. Specialized modules on handling GBV cases, evidence collection, and trauma-informed interviewing techniques should be integrated into their professional curriculum. This would ensure that investigations and trials are conducted with empathy, competence, and fairness.

3. Strengthening the Role of Forensic and Digital Evidence

With the implementation of the Bharatiya Sakshya Adhiniyam, 2023, electronic and digital evidence have gained statutory recognition. Law enforcement agencies must be equipped with advanced forensic tools and trained personnel to collect and preserve such evidence efficiently. This can significantly ease the victim’s burden by providing objective proof in cases of cyber harassment, stalking, and sexual assault.

4. Institutional Support for Victims

The establishment of One-Stop Centres, victim-witness support cells, and legal aid clinics should be expanded across the country. Victims should have access to psychological counseling, legal assistance, and protection from intimidation or retaliation. These institutional mechanisms can ensure that victims are not re-traumatized during the evidentiary process.

5. Need for Statutory Clarification on Reverse Burden of Proof

While statutory presumptions under Sections 113-A and 113-B of the Indian Evidence Act (and their equivalents under the Bharatiya Sakshya Adhiniyam) are crucial in cases like dowry deaths and abetment of suicide, their scope and limits must be clearly defined. Parliament or the judiciary should issue interpretative guidelines to prevent misuse while maintaining the intent of protecting victims.

Conclusion

The study of the burden of proof in cases of gender-based violence (GBV) reveals a complex interplay between legal principles of fairness and the social realities of victimization. Traditionally, Indian criminal jurisprudence, guided by the Indian Evidence Act, 1872, upheld the maxim “ei incumbit probatio qui dicit, non qui negat” — the burden of proof lies on the one who affirms, not on the one who denies. While this principle safeguards the accused from wrongful conviction, it has also inadvertently imposed a disproportionate evidentiary burden on victims of gender-based crimes, who often struggle to provide direct or corroborative evidence due to the nature of such offences.

The evolution of Indian judicial thinking shows a conscious attempt to balance these competing interests. The judiciary, through landmark decisions such as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983), State of Punjab v. Gurmit Singh (1996), and Kans Raj v. State of Punjab (2000), has progressively recognized the credibility of the victim’s testimony and upheld statutory presumptions in cases involving cruelty, dowry deaths, and sexual assault. These judgments signify a shift from a rigid evidentiary model to a victim-centric and context-sensitive approach, ensuring that justice is not denied due to technicalities or societal biases. The legislative framework has also evolved to reflect this change. The Criminal Law (Amendment) Act, 2013, the Protection of Women from Domestic Violence Act, 2005, and the Bharatiya Sakshya Adhiniyam, 2023 collectively represent India’s ongoing efforts to strengthen the evidentiary process and provide a gender-sensitive justice system. The inclusion of provisions relating to electronic and digital evidence has further expanded the scope of proof in cases of online harassment and abuse, aligning Indian law with contemporary realities. However, the research also underscores certain persistent challenges. The implementation gap between law and practice continues to hinder the effective realization of justice.