The Courts have traditionally taken the opinion that morality, public policy, and the interests of society require that marriage be surrounded by all protections and that its end be allowed only in the manner prescribed by law. Divorce is not generally favoured or encouraged by courts. It is permitted only for grave reasons[1]
The Hindu Marriage Act has made provisions for divorce under Section 13 enabling various grounds for the dissolution of marriage. Under which there is a legal presumption of death as a ground for divorce which traces its origin back to English law. Under the Indian Evidence Act, 1872, a person is presumed to death if he/she has no longer been heard of as being alive for at least seven years. The concept of Presumption of Death and its application as a ground for Divorce under the ambit of this Act gives a wider meaning.
What is a presumption of death?
The view can be taken from both English[2] and Indian[3] laws. When a person is not seen or heard for seven years or more, he is presumed to be dead. Considering Hindu law a presumption of death is not like general presumption under modern law, there should be a lapse of twelve years to be presumed that a person had died. But the current legal presumption is different from the ancient Hindu law. The presumption under the provision of law is flexible and death may be presumed even before the lapse of seven years, in case of special instances considering the wellness of the spouse.
For example, where a man has been working overseas and was present there during a natural calamity. He was not seen or no news was heard about him for the next 7 years. The courts here with a general assumption may presume the man dead. This death may also be termed as a death in absentia, meaning that he has been declared dead without any actual proof of that person’s death. This presumption is because if that person were living, there would have been no communication or a hint from some of the person’s acquaintances or relatives. Also, reasonable enquiry about the person has to be made and the presumption should be made after a reasonable exercise of due diligence. In case if someone thinks that the person is alive, then it has to be proven by the person who pleads so.
This assumption specifically does not apply to the time of the death of the person. The statements must be proved by either direct or circumstantial shreds of evidence. Referring to this situation, the Supreme Court in a noted judgment has held that after the lapse of seven years, only and only the death of that person may be presumed and not the time of the death.[4]
How can it be a ground for divorce?
This principle of presumption of death has been accepted by almost every personal law relating to matrimony in India. According to Section 13(1)(vii), a marriage may be dissolved by a decree of divorce on the ground that either spouse has not been heard alive for more than seven years. The decree obtained would not be a decree of the actual death of the missing person but a presumption based on the given criteria. In this case of divorce, the onus of proving that the missing spouse might be dead lies on the petitioner who is applying for a divorce.
In these inevitable circumstances, it becomes essential for the spouse to apply for a divorce. Divorce should be granted to the individual on this ground after waiting for seven years and not hearing any information from the people around the missing person. It should also go without saying that merely on this rule a spouse cannot deem himself or herself to be a widower or a widow and to remarry without getting a divorce. The surviving spouse is only allowed to re-marry after a valid decree of divorce has been obtained by a competent court. This divorce will be rebutted if the person has been missing for years after being charged for murder. In that case, the person has been voluntarily missing for years to escape.
How to prove the presumption of death?
The details of the case as to what happened to the missing person, his whereabouts; his period of missing etc has to be taken into consideration. In the case of divorce, its application and how it needs to be handled will be analyzed by a divorce lawyer. The petitioner is required to give particulars about the last date of cohabitation, particulars about the missing person’s last seen place, and any other details necessary to trace the alleged missing person. After a reasonable enquiry, the search about the existence of the petitioner should be produced before the court. In case, if the missing person is found to be alive before granting a divorce, then the petitioner has to take the burden of proving that the respondent is alive. In this case, the decree will be resounded when the respondent is proved to be alive.
In the customs of the Karewa marriage, the wife is permitted to remarry after the husband has not been heard from in 2 or 3 years. Here, in this case, the Court held that the husband cannot be presumed to be dead unless the matter comes to the appropriate Court, even so, the period of seven years under Section 108 of the Indian Evidence Act may not be whittled down to only 2-3 years.[5]
Pieces of evidence required
A set of documents which includes marriage certificate address proof of both husband and wife, their temporary residence details, Proof that the respondent’s relatives have not heard about his/her existence for 7 years, Details about special circumstances where the missing person has to be presumed death before 7 years, Particulars of last seen if any and proof that effective search about the missing person has been made will have to be produced with any other valid evidence relating to the particular case to obtain a divorce under this ground and the particulars have to be true.
Also, a key element is to constitute the difference between desertion on the part of the respondent and the presumption of death of the respondent. If a spouse leaves the other spouse who abandons the matrimonial home deliberately or ignores the other spouse without any justification valid in law, the spouse has committed the marital offence of desertion. But when a spouse disappears and is not heard from for 7 years, there is no such express intention conveyed as it is in desertion and such absence for extended periods can raise the presumption of death and such cannot be said to be a fault ground in Indian law as can be seen in the case of desertion.
Comments on this doctrine as a ground for divorce
This doctrine of presumption of death has been used in law in various cases throughout history. Under this doctrine, a person cannot go missing by choice. Therefore in an institution like marriage, this is used as a remedy where it is possible to dissolve a marriage after one of the spouses goes missing. Marriage cannot be universally dissolved by the point of presumption of the death of the spouse. The surviving spouse should initiate a divorce proceeding on this particular ground and after proving this ground according to the above-mentioned circumstances and then the surviving spouse can enter into a new marriage.
This legal presumption of death should not be restricted only in cases of natural calamities, man-made disasters, terrorism that would endanger the lives of the missing person. It should also be taken into consideration when the person concerned is missing after a certain period has elapsed without any details about his/her existence and it cannot be attributed to anything other than death. In case the spouse had disappeared for a point of time to simply evade the law, divorce cannot be obtained using this ground as a defence.
Every ground of divorce has its own share of challenges. In some cases, the period of waiting for 7 years is considered to be so long but taking each case individually, will have its drawbacks and with instructions from the lawyer, a divorce can be obtained before the lapse of 7 years in very special circumstances after providing all the essential supporting evidence. It is also extremely difficult to prove the fact of the disappearance of a person. However, the steps to prove the death of the missing person and obtain a decree of death can be a challenging one but it is possible with the help of an eminent divorce lawyer.
[1] Smt. Mala v. Bal Krishna[AIR 2016 (Sikkim) 28]
[2] Presumption of Death Act [2013 (UK), Section 1(1)(b)]
[3] Indian Evidence Act, 1872, Section 108
[4] LIC of India v. Anuradha AIR 2004 SC 2070; Darshan Singh v. Gujjar Singh[AIR 2002 SC 606].
[5] Chander v. Parmeshwari [AIR 1987 P&H 37]
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