A cornerstone of a fair trial is the right of every party to present their case and counter the allegations made against them. The Indian law of evidence—earlier embodied in the Indian Evidence Act, 1872 and now carried forward under the Bharatiya Sakshya Adhiniyam, 2023—strikes a careful balance between the burden of proof, the obligation to lead evidence, and the judicial inferences that may arise when a party abstains from testifying. One recurring and critical question in both civil and criminal jurisprudence is whether a party’s refusal to step into the witness box invites an adverse inference.
In a recent landmark judgment, Chowdamma (D) by LR & Anr. v. Venkatappa (D) by LRs & Anr. (Civil Appeal No. 11330 of 2011, decided on 25 August 2025), the Supreme Court of India revisited this doctrine and underscored that silence, particularly where a party has exclusive knowledge of material facts, cannot be treated as neutral. Rather, such refusal attracts the presumption under Section 114(g) of the Indian Evidence Act, 1872—now reflected in Section 119(g) of the Bharatiya Sakshya Adhiniyam, 2023—allowing courts to draw an adverse inference against the party who deliberately withholds testimony.
This article explores the legal foundation of this principle, the reasoning adopted by the Court, and its broader implications for both civil and criminal proceedings.
Section 114(g) IEA / Section 119(g) BSA: Legal Basis
The starting point is Section 114(g) of Indian Evidence Act, 1872 (now Section 119 (g) of Bharatiya Sakshya Adhiniyam, 2023), which empowers courts to presume the existence of facts that ought to have been produced but were not. It provides that:
“The Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
Thus, when a party refrains from entering the witness box, particularly where the matter concerns facts exclusively within their knowledge, the Court can presume that their testimony would not have supported their case.
The principle was cemented in Vidhyadhar v. Manikrao (1999) 3 SCC 573, where the Supreme Court held that a party who abstains from the witness box, thereby denying the opponent an opportunity to cross-examine, invites the presumption that their case is not true.
Case in Focus: Chowdamma v. Venkatappa (2025)
Background
The dispute revolved around ancestral property and partition. The plaintiffs, children of Dasabovi’s first wife (Bheemakka), sought partition against the defendants — Dasabovi’s second wife (Chowdamma) and her son. The plaintiffs asserted their legitimacy as heirs, relying on oral testimony and genealogical charts to prove that their mother was married to Dasabovi.
The defendants denied the marriage and claimed exclusive ownership, supported by revenue records. Crucially, Defendant No. 1 (Chowdamma), whose testimony lay at the heart of the controversy, refused to enter the witness box. She pleaded old age and arthritis as reasons.
Trial and Appeal
- Trial Court: Dismissed the suit, holding that the plaintiffs failed to prove their mother’s marriage with Dasabovi.
- High Court: Reversed, decreeing the suit in favour of the plaintiffs, relying on credible oral evidence and noting the defendant’s refusal to testify.
- Supreme Court (2025): Dismissed the appeal, upholding the High Court’s view that refusal to testify invited adverse inference under Section 114(g).
Supreme Court’s Analysis
1. Burden and Onus of Proof
The Court reiterated that burden of proof lies on the party asserting a fact (plaintiffs in this case). Once they discharged the burden through oral testimony (notably P.W.2 Hanumanthappa, who spoke from personal knowledge under Section 50 of the Evidence Act), the onus shifted to the defendants.
Having denied the marriage, it was upon Chowdamma to rebut the presumption. Her refusal to testify meant she failed to discharge this onus.
2. Revenue Records Not Conclusive
The defendants relied heavily on revenue records bearing their names. The Court held that such records serve only fiscal purposes and do not confer title. Hence, they could not override oral testimony and genealogical evidence.
3. Refusal to Testify as Deliberate Silence
The Court found that Defendant No. 1 was present in court during other depositions, negating her plea of medical incapacity. Moreover, she did not invoke Order XXVI Rule 1 CPC, which allows for evidence on commission in cases of old age or infirmity.
This deliberate abstention was treated as “studied silence”, warranting adverse inference.
4. Reliance on Precedent
The Court relied on:
- Vidhyadhar v. Manikrao (1999) – refusal to testify allows presumption that the party’s case is false.
- Badri Prasad v. Dy. Director of Consolidation (1978) – prolonged cohabitation raises presumption of valid marriage.
- Suraj Bhan v. Financial Commissioner (2007) – revenue entries do not confer ownership.
Thus, refusal to testify, coupled with weak rebuttal evidence, left the defendants’ case untenable.
Key Highlights of the Decision
Justice Sanjay Karol and Justice Prashant Kumar Mishra stated:
A Court of law cannot offer refuge to studied silence where a duty to disclose exists. The plaintiffs anchored their claim in measured and unwavering testimony of P.W.2 (Hanumanthappa), an account rooted in personal knowledge and long-standing familiarity, which withstood the rigours of cross-examination. His evidence, unshaken and consistent, found further corroboration in the genealogical chart presented by the plaintiffs. It, therefore, stands established that the plaintiffs have discharged the evidentiary burden imposed upon them by law. In contrast, the defendants, bereft of probative material or candour, resorted solely to denials. When measured against the touchstone of preponderance of probabilities, the scales unambiguously tilt in favour of the plaintiffs.
Conclusion
The Supreme Court in Chowdamma v. Venkatappa (2025) has reaffirmed a fundamental evidentiary principle: refusal to testify, when facts are within a party’s special knowledge, attracts adverse inference under Section 114(g) of the Evidence Act [Section 119(g) of the Bharatiya Sakshya Adhiniyam, 2023]. The Court emphasised that silence in such circumstances is not neutral but deliberate evasion.
The judgment strengthens the responsibility of litigants to aid the court in truth-finding. It discourages parties from hiding behind silence when they are best positioned to clarify facts. Importantly, it also reminds litigants of procedural alternatives like evidence on commission for those genuinely unable to testify.
In sum, the ruling ensures that justice cannot be thwarted by calculated silence. It stands as a stern reminder that in law, failure to speak when one must speak louder than words.
Important Link
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