A civil court can declare a person legally dead if they have not been heard from for seven years, based on Section 108 of the Indian Evidence Act, 1872. This is typically done when a legal heir files a civil suit for a declaration of presumed death to settle matters like inheritance, remarriage, or insurance.
Legal Provision on Presumptive Civil Death
Section 108 of the Indian Evidence Act, 1872, creates a legal presumption that if a person has not been heard from for seven years by those who would naturally have heard from had he been alive, then the person is presumed to be dead. This means that after seven years of no contact, the law assumes the person is dead unless the other party can prove otherwise. This presumption is applied only when a court, tribunal, or other authority must decide whether a person is alive or dead.
Procedure for Getting a Declaration on Civil Death
To obtain a formal declaration of civil death related to the missing person, a civil suit must be filed in a civil court for the declaration of his presumptive death.
The person filing the suit (the petitioner) must provide evidence, such as:
- The First Information Report (FIR) or a missing person report.
- Proof of search efforts, like police investigation reports or newspaper advertisements.
- Affidavits from family members, relatives, or neighbours.
The court will review the evidence, issue notices, and hold hearings. If satisfied, the court will pass an order declaring the person civilly dead. Following the court’s declaration, the petitioner can use the court order to apply for a death certificate from the relevant municipal authority.
This Presumption can be Raised When a Dispute Exists
The Supreme Court in LIC of India v. Anuradha [MANU/SC/0285/2004] held that the presumption under Section 108 is raised only when a tangible dispute is before a court (e.g., a claim for insurance benefits, succession to property).
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