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LAW OF EVIDENCE

BURDEN OF PROOF IN CASES RELATED TO RAPE AND CUSTODY

1ST CHAPTER

INTRODUCTION:

Sexual assault in various forms has been recognized as a crime by almost all religions and
cultures throughout the recorded history. It is a crime against basic human rights of an individual
and a most common crime against women in India. In India, "rape laws" began with the
enactment of Indian Penal Code in 1860. There have been subsequent amendments, and the main
issue of focus remained the definition of rape which has been recently broadened to include a
wide range of sexual activities. The inclusion of "marital rape" in the ambit of rape remains a
matter of debate. With a long history, the sexual offence in the form of sexual assault has been
discussed from legal and mental health perspective in this presentation. Social and psychological
impact of sexual assault on the victim has also been discussed.1

 BURDEN OF PROOF. This phrase is employed to signify the duty of proving the
facts in dispute on an issue raisedbetween the parties in a cause.
 The burden of proof always lies on the party who takes the affirmative in pleading.
 In criminal cases, as every man is presumed to be innocent until the contrary is
proved,the burden of proof rests onthe prosecutor, unless a different provision is
expressly made by statute.
Sec 155 4 of the Indian Evidence Act explains the burden of proof.2

Burden of proof can define the duty placed upon a party to prove or disprove a disputed fact, or it
can define which partybears this burden. In criminal cases, the burden of proof is placed on the p
rosecution, who must demonstrate that thedefendant is guilty before a jury may

convict him orher. But in some jurisdiction, the defendant has the burden of establishing the

existence of certain facts that give rise to a defense, such as the insanity plea. In civil cases,

the plaintiffis normally charged with the burden of proof, but the defendant can be required

1
http://www.indjsp.org/text.asp?2015/31/1/9/161992
2
Sec 155 4 of iea
to establish certain defenses.

Burden of proof can also define the burden of persuasion, or the quantum of proof by which the
party with the burden ofproof must establish or refute a disputed factual issue. In criminal cases,
the prosecution must prove the defendant's guilt beyond a reasonable doubt.

HOWEVER, IN CASES REGARDING CRIMES AGAINST WOMEN, SINCE WOMEN ARE


AN OPPRESSED CLASS IN INDIA, THEY ARE GIVEN BENEFIT OF DOUBT. IN OTHER
WORDS BURDEN OF DISPROOF IS ON MEN.

How this ties into custody disputes shall be dealt with in the research.

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