For the presumption that a person who is not seen for seven years is dead, Spouse has to first approach civil court for declaration:

The High Court is of the opinion that there is no scope for presumption that wife would be dead, if she is not seen for about seven years. Law in this situation is that Husband has to approach the civil court seeking declaration that his wife is dead.

The said observation was held in the case of “Union of India and Ors. vs K.L. Micheal” (Writ Petition No. 981 of 2019) decided by Karnataka High Court on 20.08.2019.

Challenge:

If a spouse is missing for 7 years, presumption that he/she is dead can be made or not?

Here in the case, a retired railway employee who had committed an act of Bigamy, assuming that his wife is dead, since he had not seen her for seven years.

Held:

The division bench of High Court had modified the order of Central Administrative Tribunal (CAT), which was in favour of the Respondent i.e. K L Micheal. The tribunal (CAT) in October 2018, set aside the punishment imposed by Railways. Railway after enquiry imposed a punishment of reduction in pension benefits by 50% for five years, under the Railway (services) pension rules, for misconduct.

The Railway challenged the order of the Tribunal in High Court, arguing that respondent has committed an act of bigamy. Respondent had opposed the appeal by saying “As the first wife has eloped, he has waited for seven years and presumed her to be dead, thereafter he entered into a second marriage”.

The bench observed that there is no scope for presumption that wife would be dead, in case if she is not seen for about seven years. For the purpose of the said presumption the law provides that the husband has to approach the Civil Court seeking declaration that his wife is dead. Instead of approaching the Civil Court and obtaining decree, the respondent has presumed that she must have died and had contracted the second marriage, which on the face of it is a misconduct. Under these circumstances, the order of Tribunal is to be set aside.

The Bench further held that since he is already retired and would be completely depending upon the pension and if there is a further reduction in the same, it would be difficult for any pensioner to manage his livelihood. Under the circumstance, though we confirm the finding of the enquiry officer and the order of punishment, but the only interference to be is with regard to the reduction of period from five years to three years. Since, the respondent has already completed three years, the respondent is entitled for the complete pensionary benefits.