“Missing Presumed Dead” in Indian Law: Evidentiary Presumptions, Temporal Uncertainty, and Practical Consequences

“Missing Presumed Dead” in Indian Law: Evidentiary Presumptions, Temporal Uncertainty, and Practical Consequences

Introduction

The disappearance of an individual for a prolonged period generates complex legal questions across diverse branches of law—succession, insurance, service jurisprudence, limitation and even criminal investigation. Indian law predominantly addresses the issue through Sections 107 and 108 of the Indian Evidence Act, 1872. The legislative text is deceptively brief, yet a rich corpus of case-law has exposed both the utility and the limits of the so-called “seven-year rule.” This article critically analyses the Indian doctrine of missing presumed dead, drawing upon leading authorities such as Lal Chand Marwari v. Mahant Ramrup Gir[1], LIC v. Anuradha[2] and a series of High Court decisions dealing with probate, pensions, insurance and limitation issues. It interrogates three core themes: (i) the allocation of the burden of proof, (ii) the indeterminacy surrounding the time of death, and (iii) the disparate consequences produced in different legal settings.

Statutory Framework

Sections 107 and 108, Evidence Act, 1872

Section 107 casts the initial burden of proving death on the party who asserts it when the person was known to be alive within thirty years. Section 108, framed as a proviso, reverses that burden once it is proved that the person has not been heard of for seven years by those who would naturally have heard of him. Notably, the statute is silent on the moment of death; it merely shifts the evidentiary burden as to continued life.

Ancillary Legislation and Executive Instruments

  • Central Civil Services (Pension) Rules, 1972, Rule 54 and the Government of India circular dated 3-3-1989, allowing release of benefits after seven years (or earlier in special cases)[3].
  • Pension Regulations for the Army, 1961 (Part II), particularly Para 213, governing “missing presumed dead” cases in the armed forces.
  • Limitation Act, 1963—various articles that trigger from the date of death for succession or from the date the right accrues; uncertainty in the date of death therefore influences the computation of limitation.

Judicial Construction of the Seven-Year Rule

A. Presumption of Death v. Presumption as to Time of Death

In Lal Chand Marwari, the Privy Council clarified that while a presumption of death arises at the end of seven years of unexplained absence, there is no concomitant presumption that the death occurred on the last day of that period or on any identifiable date inside it.[1] The onus of establishing a specific time of death remains on the party for whose claim that fact is essential—a principle consistently applied by Indian courts (e.g., R. Gopala Pathar v. N. Jayalakshmi Ammal[4] and Huseinny J. Bhagat v. LIC[5]).

B. The Supreme Court in LIC v. Anuradha

The apex Court, while addressing a disputed life-insurance claim, reiterated that Section 108 merely raises a rebuttable presumption of death after seven years, without presuming the time of death.[2] Consequently, insurance contracts often stipulate that unless the claimant proves that death occurred while the policy was in force, the insurer is not liable. The Anuradha principle has reverberated in consumer fora, such as the J&K High Court’s decision in LIC v. Anuradha (J&K)[6], which expressly declined to infer the date of death for policy purposes.

C. Burden-Shifting Dynamics

Decisions such as E.J. George Kutty v. Ouseph Varkey[7] illustrate the practical function of Section 108: once the seven-year absence is proved, the party alleging continued life must furnish affirmative proof. Yet, because many legal consequences hinge on the timing rather than the fact of death, litigants still confront significant evidentiary hurdles.

The Temporal Indeterminacy Problem

A. Succession and Probate

Where inheritance is contingent on the sequence of deaths, courts require cogent evidence beyond the statutory presumption. In Paul Raj v. Narayani Verghese[8] the Madras High Court granted probate upon proof of due execution of a will; however, where beneficiaries’ rights depend on whether the testator pre-deceased or survived another missing person, a mere Section 108 presumption may prove insufficient. The Supreme Court’s reasoning in Ramrati Kuer v. Dwarika Prasad Singh[9] demonstrates judicial reliance on contemporaneous proprietary statements under Section 32(3) Evidence Act to fix chronological facts that the presumption alone cannot.

B. Limitation

In suits for recovery of property or mesne profits, the starting point of limitation can be determinative. The Privy Council in Lal Chand Marwari emphasised that unless the plaintiff positively establishes the date of the predecessor’s death, limitation may bar the action. Indian courts continue to follow this restrictive approach, thereby compelling plaintiffs either to procure direct proof or to risk dismissal on limitation grounds.

C. Insurance and Contractual Benefits

Insurance policies often require that premiums be kept alive until proof of death. After LIC v. Anuradha, courts have declined to presume any specific date of death, thereby obliging claimants either to negotiate contractual clauses or to furnish circumstantial proof (e.g., medical condition, last-seen evidence) to approximate the time of death. The J&K High Court in LIC v. Anuradha (J&K) affirmed this orthodoxy.[6]

D. Service and Pension Law

The harshness of waiting seven years for family pension led to administrative innovations. The Ministry of Defence letter dated 3-6-1988 allows armed-forces families to receive provisional pension within six months of an inquiry, though final “missing presumed dead” status still invokes Section 108.[10] Decisions such as K. Indira v. Union of India[11], Maya Thapa v. Chief of Army Staff[12] and Baljinder Kaur v. Union of India[13] underline judicial willingness to compel authorities to apply these executive instructions empathetically. Nonetheless, as the Armed Forces Tribunal observed in Geeta Devi v. Union of India[14], bureaucratic delay and misapplication of “desertion” labels persist.

Reconciling Evidentiary Doctrine with Practical Justice

The jurisprudence suggests a tension between certainty (needed for property and commercial transactions) and compassion (necessary for dependants left in limbo). Two doctrinal refinements emerge:

  1. Context-Specific Standard of Proof. While strict proof is warranted where third-party rights are affected (e.g., creditors, rival heirs), service-benefit and pension regimes—being ex gratia in nature—justify a lower evidentiary threshold coupled with indemnity undertakings from beneficiaries.
  2. Flexible Inferential Reasoning. Courts increasingly admit circumstantial indicators—health condition, last communication, perilous circumstances—to approximate the time of death (K. Indira invoked illness and police reports to peg death to the date of disappearance). Such reasoning aligns with English authorities like In re Phene’s Trusts but is cautiously applied in India.

Emerging Trends and Reform Proposals

  • Statutory Clarification. A legislative amendment specifying a rebuttable presumption that death occurred at the midpoint or end of the seven-year period—unless evidence suggests otherwise—would reduce litigation over the date issue.
  • Digital Traceability. With Aadhaar-based databases, banks and telecom providers can furnish negative confirmation (no transactions, no activity) to strengthen disappearance evidence earlier than seven years.
  • Unified Administrative Protocol. Harmonising civilian and military pension rules with insurance industry norms would alleviate hardships for families and minimise forum shopping.

Conclusion

The Indian doctrine of missing presumed dead strikes a delicate balance between evidentiary prudence and humanitarian concern. Section 108 of the Evidence Act provides a vital—but limited—tool: it presumes the fact of death, not its timing. Judicial decisions from the Privy Council era to recent High Court and Tribunal rulings demonstrate consistent adherence to this distinction, while simultaneously revealing pragmatic departures in service-benefit contexts. Continued doctrinal evolution, supported by statutory refinement and administrative sensitivity, is essential to ensure that the law serves both the demands of certainty and the imperatives of justice.

Footnotes

  1. Lal Chand Marwari v. Mahant Ramrup Gir, AIR 1926 PC 9.
  2. Life Insurance Corporation of India v. Anuradha, (2004) 10 SCC 131.
  3. Government of India, Department of Pension & Pensioners’ Welfare, Circular No. 4-52/86-Pen. dated 3-3-1989.
  4. R. Gopala Pathar v. N. Jayalakshmi Ammal, AIR 1984 Mad 235.
  5. Huseinny J. Bhagat v. LIC of India, AIR 1965 Mad 429.
  6. LIC of India v. Anuradha, 1999 SRILJ 2 529 (J&K HC).
  7. E.J. George Kutty v. Ouseph Varkey, 1990 (1) KLT 286.
  8. Paul Raj v. Narayani Verghese, 2023 Mad HC (unreported O.P. granting probate).
  9. Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134.
  10. Ministry of Defence Letter No. A/36151/159/AG/PS-4 (c) dated 3-6-1988.
  11. K. Indira v. Union of India, 2005 (3) KLT 734.
  12. Maya Thapa v. Chief of Army Staff, 2021 SCC OnLine AFT 1562.
  13. Baljinder Kaur v. Union of India, 2001 (3) RSJ 20 (P&H HC).
  14. Geeta Devi v. Union of India, 2010 SCC OnLine AFT 19.