Death in absentia or Presumption of death and Need of an Effective Legislation. Adv. Rohit Erande. ©,

 Death in absentia or Presumption of death 

and Need of an Effective Legislation.

                                Adv. Rohit Erande. ©,

A) INTRODUCTION :

 

In Indian philosophy, it is said that Death is the only certainty in Life. It’s inevitable. Be that it is. Death of a person brings sorrow and practical problems to his/her relatives, friends, kith and kin. Law takes care of the interests of the deceased and legal heirs/representatives of the deceased. However, the situation is totally different when one is constrained to presume Death or in other words Death in Absetntia i.e. when a person vanishes or disappears or is unheard of without a trace of his body in  Air crash or at Sea or at War or in natural calamities like Earthquake or Kedarnath flood tragedy or Chennai or Mumbai heavy rains where many people lost their lives  few years back. In such and alike cases, it become very difficult for the near and dear ones of such person to believe that the missing person is dead.  When the person is unheard of for many days, then it gives rise to many practical as well as legal problems relating to Succession, Marriage,  Insurance and many more. The Civil Suits are being filed in the Courts by Legal representatives  for getting declaration of Civil Death to the effect that such a person who is missing or unheard of for some years be declared as dead !! However practically it is very difficult to get such releifs from the Courts. 

B) Legal Position in India : 

  In India, there is no Legislation that deals with the Presumption of Death and allied issues unlike in other countries viz. U.K., Scotland, South Africa, United States of America etc., to which we shall be dealing later on. Indian Evidence Act, 1872, Sec. 107 and Sec. 108 deals with this subject to some extent. However, these are mere presumptions and therefore are rebuttable in nature. Sec. 107 deals with the presumption of continuation of life and Sec. 108 which is nature of proviso to the Sec. 107, deals with the presumption of Death. In other words, it specifies when a person was continuously absent for seven years and he was not heard by his friends and neighbors he may be presumed to have died and the burden of proving that he is alive shifts on the person claiming so. The presumption U/Sec. 107 will apply when the question is whether a person was alive or dead and not where the question is whether the person was alive or dead on a particular date. It should be remembered that the presumption extends merely to the fact of Death at expiration of seven years; but not to the time/date of the death at any particular period. i.e. there is no presumption that the death took place after the end of the period of seven years or at any other particular time within that period In an interesting case of L.I.C. Of India V/s. Anuradha , the Hon’ble Apex Court has observed that presumption U/Sec. 108 of the Evidence Act would arise only when the question is raised in a Court, Tribunal or before authority who is called upon to decide as to whether a person is alive or dead and therefore if the dispute is not raised before any forum in any legal proceedings, the question of raising presumption does not arise. In the instant case the Hon’ble Apex Court was dealing with the question as to whether the L.I.C. of India was liable to pay the benefits under Insurance Policy on the ground that the insured should be presumed to have died on date of its disappearance and therefore the Claim became payable on date of its disappearance and not after the expiry of 7 years from the date of 7 years and therefore even if the premium were not paid after disappearance, the benefits of policies cannot be withheld on ground of lapse of policy for want of premium. The Hon’ble Apex Court allowing the appeal observed that presumption as to date/time of death of a person unheard of for 7 years cannot be drawn, but can be inferred on the basis of evidence. The Hon’ble Apex Court further observed that the Insurance policy lapses the moment the premium is not paid and the claimant is entitled to paid up value of the policy. It cannot be assumed that the presumed death synchronised with date when the person was reported to be missing. 

The 185th report of Law Commission of India which tried to clarify Sec. 108 of the Evidence Act, is yet to be considered.

The above referred provisions are mere rules of Evidence and they do not provide any complete remedy as such to the person who wants to take decision in respect of re-marriage, succession etc. For this purpose it is very essential to juxtapose the Indian legal provisions on this issue with that of prevailing in other Countries in nutshell. 

1) U.K  – The English Law as stated in Halsbury’s Laws of England, paras 115 and 116 are in pari materia with provisions of Indian Evidence Act. A number of organisations offer assistance in searching for a missing person e.g. The National Policing Improvement Agency Missing Persons Bureau works alongside the police and related organizations. In India, we should have similar type of institution. The  Presumption of Death Bill 2008-2009 was presented in British Parliament. It was a private members’ Bill (Ballot Bill). 

3) Singapore  : 

It seems that the provisions of Indian Evidence Act and Singapore Evidence Act are quite similar on the current topic. The Singapore Act has made categorical provision in respect of Marriage and Divorce Law. 

4) Canada : -In my humble opinion, the Survivorship and Presumption of Death Act (RSBS 1996, Chapter 444), Canada is one of the best legislation on the topic under discussion. This Act takes care of almost all the problems which are being faced in India due lack of Legislation i.e. to say (a) Who can apply and Where can apply, (b) How death is presumed and how the order can be revoked, (c) Duties of personal representatives incase there are doubts that such person is alive, (d) Status of property if deceased later found to be alive,(e) Status of property if deceased in fact Dead. 

This Act also takes care of situation of simultaneous death and presumes that the younger survived the older, similar to Sec. 21 of the Hindu Succession Act, 1956. 

5) USA  - As per Sec. 108 of 38 U.S. Code, if a person submits satisfactory evidence to the Secretary thereby establishing a fact that a person is missing or unheard of and not traceable from home or family inspite of diligent search, for seven or more years, then the Secretary can give the finding to the effect that such missing person is dead and such finding shall be final and conclusive. 

6) Scotland  - In Scotland, the Presumption of Death (Scotland) Act, 1977 provides that a where a person who is missing is thought to have died or has not been known to be alive for 7 years, any person having an interest may seek a declaration from the Court to the effect that the missing person is dead. However, the criminal liability of such missing person is not excluded !!! If a Divorce is granted by the Decree under this Act, such dissolution of the marriage shall not be invalidated by the circumstance that the missing person was in fact alive at the date specified in the decree as the date of death. There is also provision for variation in order if the missing person found to be alive. 

7) Japan  : - In Japan, Under as per Art. 30(1) of Civil Code, 1896  , the presumption of Death of a missing person is made by the order of a family Court on application made by an interested person, when a person is missing or not heard of  for 7 years. 

It is also interesting to note that in Japan some laws like National Insurance Law and the Employees Pension Insurance Law, allow presumption of death 3 months after the accidents such as ship sinking and plane crashes.

Interestingly, the prevailing law in different countries almost one and the same and period of seven years is also common. However, why 7 years period is prescribed for is a topic for research !!!!! This time period is also required to be reduced. The Evidence Act was passed in 1872 when the Transport facilities were not even in its infancy and therefore the waiting period of 7 years  was correct. But in this IT era where the world has  become extremely closer, the period of 7 years should be reduced with other counter checks.

If anyone wants to file a suit for declaration then as per law there should be denial of one’s right which gives rise to some cause of action. However, there may be instances, where a legal representative requires such declaration for some purposes, but there is no such denial of death, then can it be said that such legal representatives are remedy less? The question also arises as to against whom such suit should be filed? Whether in each and every case the Govt. is a necessary party as Death Certificate will be issued by the Govt. agency? All such questions are unanswered and left to the Judicial Discretion of the Hon’ble Court. Why citizens should suffer for want of effective remedy? This grey area can be removed only by full proof and effective legislation on the topic under discussion. 

Thus to conclude with, again I would submit that the current law on this point does not answer the number of problems which may crop up while getting a declaration to the effect that a person is dead,  that starts with who can apply i.e. legal representatives or interested person/s, and where to apply, against whom the suit is to be filed / Whether The Government is the necessary party ? What is the remedy if the person declared dead re-appears in regard to his/her personal succession laws ? Similarly, the Act should also take care of problems that may arise after simultaneous deaths and/or deaths in natural calamities like Kedarnath, Air Crash etc.;  where bodies are not traceable. On the same line the law also has to make provisions for  unfortunate situations of bomb explosions or terrorist attacks like 9/11 or 26/11, where there was a evidence to the effect that a person was present where the bomb exploded, but his/her body later on could not be found or take the example of Torpedo explosion in Mumbai, where bodies of our soldieries could not be recovered. The list of problem will increase, but without any effective solution. Therefore, in order to overcome all these problems, the Legislature should enact an effective and suitable Legislation after considering all the aspects and laws prevailing in other countries. Because it will be really very unfortunate for the near and dear ones of such missing person to wait for seven years. 

In my humble opinion, it requires more discussion on this topic in legal fraternity to focus on other aspects of this topic, if any.

Adv. Rohit Erande

 Pune. ©,