INTRODUCTION
The Hindu Marriage Act, 1955 is a law that governs the matrimonial causes of every person married as per Hindu rituals in India. Divorce was an alien concept and traditionally, no school of Hindu law recognizes divorce as marriage is considered a sacrament and not a contract under Hinduism. Keeping with modern times, the Hindu Marriage Act has made provisions for divorce under Section 13 and has enabled it to happen for the following grounds, namely adultery, cruelty, desertion, conversion, unsoundness of mind, venereal disease, leprosy, renunciation of the world and presumption of death. Under this Act, a divorce may even occur by the mutual consent of both the spouses[1]. Certain grounds are provided exclusively to the wife to obtain a divorce from her husband under Section 13(2) such as repudiation of marriage, non-resumption of cohabitation after a decree of maintenance, rape, sodomy or bestiality.
The Courts have traditionally taken the opinion that good 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 favored or encouraged by courts; it is permitted only for serious and grave reasons[2]. In this article, we shall look exclusively at the concept of Presumption of Death and its application as a ground for Divorce under the extent and the ambit of this Act.
PRESUMPTION OF DEATH
Before we proceed to how Presumption of Death acts as a ground for divorce, we must first understand its meaning. It is a view taken in both Indian[3]as well as English[4] law that when a person is not seen or heard from in seven years or more, he is presumed to be dead. This presumption must be made by the Judges with the due exercise of diligence and in the words of G.H. Treitel,
“…it is clear that the mere fact that a person has not been heard of is not sufficient if news of him could have been obtained by the exercise of reasonable diligence. Just as the person who seeks to set up the presumption is not bound to listen to idle gossip, so also he must not shut his eyes to possible sources of reliable information[5].”
A common example of this can be taken when a man, who is on a sea-faring journey has been shipwrecked and not been seen or heard from for the next 7 years, the Courts here may presume the man dead. This is also called death in absentia, meaning that he has been declared dead without any actual proof of that person’s death.
The burden of proof for proving whether that person is alive is on the person claiming so. However, it must be noted that Section 108 of the Indian Evidence Act only lays down as to the presumption of the existence of a person. This refers only to the death of the person, that the rule cannot be extended even after the specified period of seven years even if the period is only six years and 364 days. More specifically, this assumption does not apply to the time of the subject person’s death. That statement must be proven by direct or circumstantial evidence.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[6]. This is, however, not the view taken by English law where the Presumption of Death Act may also enable the court to declare the date of death of the missing person as was seen in the case of Greathead v. Greathead[7]where the missing person was declared dead by the Court on the day he was last seen after seven years of his disappearance. Under the Hindu Marriage Act of 1955, this operates as a legitimate ground for obtaining a divorce from the spouse missing. If a spouse is missing for over 7 years, the other may obtain a divorce as it shall be declared by the Courts that he/she has died and it shall have the effect of the same.
AS A GROUND FOR DIVORCE
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 a period more than seven years by those who would have normally heard of him. One must wonder then whether seven years was an appropriate period of absence to presume a person to be dead. The answer to that has been explained by various authorities as to when this law was first formalized because the means of communication were rudimentary then, as compared to today[8]. The burden of proof, as discussed earlier lies on the person affirming it. In case of a divorce, it is the petitioner who must prove that his or her spouse could be in fact, alive. This is a principle that has been accepted by almost every personal law relating to matrimony in force in India. In light of this, it should go without saying that merely on this rule of evidence a spouse cannot deem himself or herself to be a widower or a widow and to remarry without getting a divorce[9].
A key difference must be drawn between the presumption of Death and Desertion [Section 13(1)(ib)] as grounds for obtaining a divorce to provide a better understanding of the concept in question. If a spouse leaves his/her other spouse or pushes him/her to leave the matrimonial home deliberately or ignores him/her without any justification valid in law, the spouse has committed the marital offense of desertion. The key element to constitute desertion is the intention to end cohabitation with the other spouse. When a spouse disappears and is not heard from, there is no such express intention conveyed 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.
To obtain a decree of divorce under this ground, it is essential to prove or disprove the existence of a spouse if rebutted so. In the case of Nirmoo v. Nikkaram[10], it was held that when a person presumes his/her spouse’s death and marries another person without obtaining a divorce decree, the spouse can then challenge the legitimacy of the second marriage after his return. This law also overrides any existing custom which provides for a period lesser than seven years for presuming the death of a spouse as was seen in the case of Parkash Chander v. Parmeshwari[11]where it was contended that the customs of the Karewa marriage permits remarriage after the husband has not been heard from in 2/3 years. Here, 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.
If the other partner, assuming that he or she has become a widower or widow, contracts a second marriage and after some time the absent partner reappears, the second marriage is invalid under Section 11 and the spouse may also be sued for bigamy under Section 494 of the Indian Penal Code except when the absent spouse has not been heard from for a continuous period of seven years and a decree of dissolution of marriage has been obtained. In such a case, even if the spouse appears the very next day after the decree has been passed, the other’s remarriage stands valid.
Presumption of Death also acts as a ground for divorce in other personal laws. For example, the Malikis, the Hanbalis, and the more preferable view among the Hanafi Schools of Muslim Law opined that dissolution is permitted in the case of a missing husband, but they differed on the minimum period of his disappearance to enable a wife to claim for dissolution[12]. In India, the Dissolution of Muslim Marriages Act, 1939 also provides imprisonment for more than seven years as a valid ground for divorce[13]. In the case of Indian Parsis, a suit for dissolution may be filed if either spouse has not been heard from since the past seven years[14]. For Christians, there is no specific provision to obtain a dissolution on this ground but it is possible through Section 7 of the Indian Divorce Act, 1869 which enables Indian Christians to the same reliefs as have been opined in judicial precedents.
CONCLUSION AND COMMENTS
Presumption of Death as a doctrine has found use throughout history. It is not common for a person to go missing, either by choice or not. In an institution as daunting as marriage, it becomes even more common as spouses tend to be overwhelmed by the responsibilities of having to maintain a family. In ancient Hindu Law, this was acknowledged and it was possible to dissolve a marriage after a spouse has not been heard from for a continuous period of twelve years[15]. But this too was not used for the dissolution of marriage being beyond ‘shastrik’ contemplation. Like any law, this is also not perfect and has certain lacunae in it which are pointed out as follows:
- The period of seven years itself is too long for contemporary application and needs to be amended. It should be noted that the Indian Evidence Act was introduced in 1872 and the means of communication have improved considerably since then.
- The death or in this case, the presumed death of a spouse should ipso facto act as an end to the existing marriage[16]. It is made unnecessarily complicated to obtain a decree of divorce after having declared that the spouse is dead. The presumption of death should dissolve the marriage in the same way as the person has died.
- It is extremely difficult for a person to prove that the fact of the disappearance of his/her spouse for seven years enough to be presumed to have died if he had not been heard of alive during that period of seven years by the petitioner-spouse and other persons who have naturally heard of him/her had the spouse been alive.
- It is possible for the spouse to disappear to evade the law for some crime he/she had done or simply had reason to evade marital responsibility, in this case, death cannot be presumed. In case he/she changes his/her identity, it would not be possible for the person to file a case to presume the spouse’s death.
It has been observed by jurists both in India as well as in England that this provision of presuming the death of the spouse is superfluous and too rigid. Even so, it exists to serve the purpose of removing the suffering of a person whose life exists in confusion, anxiety, and fear of the fact that his or her spouse is living in a situation similar to the Schrodinger’s Paradox.
By-
Shivam Mulik
[1]Hindu Marriage Act, 1955, Section 13(1-A)
[2]Smt. Mala v. Bal Krishna[AIR 2016 (Sikkim) 28]
[3]Indian Evidence Act, 1872, Section 108
[4]Presumption of Death Act [2013 (UK), Section 1(1)(b)]
[5] G.H. Treitel, The Presumption of Death (1954), 17 Mod. Law Rev. 530.
[6]LIC of India v. Anuradha AIR 2004 SC 2070; Darshan Singh v. Gujjar Singh[AIR 2002 SC 606].
[7]Greathead v. Greathead[2017] EWHC 1154
[8] Paras Diwan, Law of Marriage and Divorce, 1stEdn. (1988)
[9]Id
[10]Nirmoo v. Nikkaram[AIR 1968 Del 260]
[11]ParkashChander v. Parmeshwari[AIR 1987 P&H 37]
[12]Tengku Fatimah MulianaTengku Muda, AzizahMohd, Muslim Women’s Right to Marriage Dissolution in the Case of Missing Husband: A Juristic Analysis on Missing Passengers of MH 370, Shariah Journal, Vol. 23, No. 3 (2015) 495-516
[13]Dissolution of Muslim Marriages Act, 1939, Section 2(iii).
[14]Parsi Marriage and Divorce Act, 1936, Section 32.
[15] B.P. Beri, Law of Carriage and Divorce in India (1982)
[16] P.V. Deolalkar, Hindu Marriage Act, 1955 (1964)
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