Failure to Enter the Witness box

Source: Supreme Court  

Why in News? 

Recently, Justices Sanjay Karol and Prashant Kumar Mishra held that in civil cases, a party’s refusal to testify on facts within their personal knowledge can lead to serious evidentiary consequences, while hearing a property dispute involving claims based on the validity of a prior marriage. 

• The Supreme Court held this in the matter of Chowdamma (D) by LR and Another v. Venkatappa (D) by LRs and Another (2025). 

What was the Background of Chowdamma (D) by LR and Another v. Venkatappa (D) by LRs and Another (2025)? 

• The dispute arose between two sets of claimants to ancestral property. The plaintiffs were two individuals claiming inheritance rights through their deceased mother, Bheemakka (also known as Sathyakka). The defendants were Chowdamma (defendant no.1) and her son (defendant no.2), who contested the plaintiffs' claims. 
• The contested assets comprised agricultural lands bearing specific Survey Numbers (39/1B, 149, 41/lP, 37/1, 37/lA, and 29/9) and a residential house (No.38) situated in Devigere and Kallahally villages, Hosadurga Taluk. These properties were ancestral in nature, having descended from one Thimmabovi Vellappa. 
• The fundamental controversy centered on establishing the validity of the first marriage of the deceased Dasabovi (also known as Dasappa).  
• The plaintiffs contended that their mother, Bheemakka, was the lawfully wedded first wife of Dasabovi, thereby entitling them to inheritance rights in the ancestral property. Conversely, defendant no.1 (Chowdamma) asserted that she was the sole legitimate wife of the deceased Dasabovi, thus challenging the plaintiffs' entitlement to any share in the ancestral estate. 
• According to the plaintiffs' case, Dasabovi initially married their mother Bheemakka in accordance with customary practices.  
• The couple resided together at Galirangaiahnahatti, where the plaintiffs were born. Subsequently, Dasabovi entered a relationship with Chowdamma and brought her into the household as a second wife.  
• This development allegedly resulted in the displacement of the first wife and her children, compelling them to relocate to Bheemakka's parental home at Antharagange village. 
• The case presented significant evidentiary complexities due to the absence of formal documentary proof of the alleged first marriage.  
• The plaintiffs relied primarily on oral testimony, particularly that of one Hanumanthappa (PW-2), who claimed personal knowledge of the marriage and family relationships. The defendants contested this evidence and relied on revenue records showing only Chowdamma's name alongside Dasabovi's. 
• The plaintiffs initially filed a suit for partition seeking their half share in the family properties. The trial court dismissed their suit, finding insufficient proof of the alleged marriage between Dasabovi and their mother. The plaintiffs subsequently appealed to the High Court, which reversed the trial court's decision and decreed the suit in their favour. The defendants then approached the Supreme Court challenging this reversal. 

What were the Court’s Observations? 

• The Court held that when facts lie exclusively within a party's personal knowledge, failure to enter the witness box carries grave evidentiary consequences. In civil proceedings, refusal to testify on such matters constitutes deliberate evasion from judicial scrutiny.  
• The Court found defendant no.1's absence from the witness box was not procedural lapse but calculated withdrawal. Despite being physically present during other witnesses' examination, her failure to depose attracted adverse presumption under Section 114(g) of the Evidence Act.  
•  The Court dismissed the arthritis defence, noting defendant no.1 attended court multiple times during trial proceedings. Her capability to attend court negated claims of medical inability to testify.  
•  The Court accepted PW-2's testimony as credible, being rooted in personal knowledge and long-standing familiarity. His evidence withstood cross-examination and was corroborated by the genealogical chart.  
• The Court concluded plaintiffs successfully established their case through measured testimony. Defendants, bereft of probative material, relied solely on denials. When measured against preponderance of probabilities, scales tilted in plaintiffs' favour.  
•  The Court reiterated that where a party fails to appear in witness box to state their case on oath, presumption arises that their case is incorrect. A court cannot offer refuge to studied silence where duty to disclose exists.  

What is Failure to Enter Witness Box ? 

• Section 114(g) of Indian Evidence Act, 1872: The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.  
• This provision is now covered under 119 of Bharatiya Sakshya Adhiniyam, 2023. 
• Illustration (g) specifically states: "That evidence which could be and is not produced would if produced be unfavourable to the person who withholds it." 
• When a party possesses exclusive personal knowledge of material facts and deliberately abstains from entering the witness box, courts draw adverse inference under Section 114(g). The presumption operates that evidence withheld would be unfavourable to the party withholding it. 
• Judicial Precedent - Vidhyadhar v. Manikrao (1999): The Supreme Court established that where a party to the suit does not appear in the witness box to state their case on oath and does not offer themselves for cross-examination by the opposing side, a presumption arises that the case set up by them is not correct. 
• The failure to testify shifts the evidentiary burden adversely. While the initial burden lies on the plaintiff to prove their case, once established prima facie, the onus shifts to the defendant to rebut. Non-appearance in witness box when possessing exclusive knowledge constitutes failure to discharge this onus. 
• Order XXVI, Rule 1 of Code of Civil Procedure provides for recording evidence through commission in cases of age, sickness or other infirmity. Failure to invoke such provisions when claiming incapacity strengthens adverse inference.