Declaring a Missing Person’s Civil Death by a Civil Court

A Missing Person can be Declared to be Dead

A person who has been missing for seven years or more can be presumed to be dead and declared to have undergone civil death for legal purposes. Such a declaration is granted through a civil suit.

The Legal Principle behind Presumption of Death

The foundation for this legal process is Section 108 of the Indian Evidence Act, 1872. This section establishes a rebuttable presumption of law: if a person has not been heard of for seven years by those who would naturally have heard of them (e.g., close family), the burden of proving that person is alive shifts to the party who asserts it. The court, in the absence of contrary evidence, will presume the person is dead.

Procedure for Obtaining a Declaration

A declaration of civil death is not an administrative process but a judicial one.

1. Jurisdiction: An interested party, such as a legal heir, must file a civil suit in a competent court under Section 9 of the Code of Civil Procedure, 1908.
2. Relief Sought: The suit should seek a declaratory decree as to the person’s status under Section 34 of the Specific Relief Act, 1963.
3. Evidence: The plaintiff must provide sufficient proof to the court’s satisfaction that the person has been missing and unheard of for the statutory period of seven years.

The Kerala High Court in Shajeev George v. The Chief Registrar affirmed that this is a serious matter requiring sufficient proof, and it falls exclusively within the purview of the judiciary.

Important Nuances and Supreme Court Clarifications

While the principle seems straightforward, case law has clarified its application:

• Purpose of the Suit: A suit for declaration is not meant to be filed in a vacuum. The Supreme Court in L.I.C. of India v. Anuradha 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). Echoing this, the Calcutta High Court in Narayan Nayak v. SBI held that a suit for a mere declaration of death is not maintainable unless the plaintiff is seeking to establish a right to property or a legal character.
• Scope of the Presumption: The Supreme Court also clarified that Section 108 only presumes the fact of death; it does not establish the exact date or time of death. That must be proved separately if relevant to the dispute.

The Role of Registrar of Births and Deaths

The Registrar of Births and Deaths is a statutory authority for registering actual deaths and is not empowered to conduct the evidentiary analysis required to declare a civil death.

However, once a court has issued a declaratory decree, administrative bodies must act on it. The Madras High Court in N. Arunkumar v. The Secretary directed, in pursuance of a Government Order: G.O.Ms.No.18, Labour and Employment Department dated 23.01.2020, that upon production of a court order, the competent District Registrar shall issue a “Certificate of Presumption of Death”.

Reference

1. Shajeev George v The Chief Registrar of Births And Deaths.
2. Raeesa Bano v Smt. Tabassum Jahan & Others
3. Subhash Ramchandra Wadekar v Union of India [AIR 1993 BOMBAY 64]
4. Narayan Nayak v State Bank of India & Others
5. L I C. of India vs. Anuradha [MANU/SC/0285/2004]
6. Arunkumar v. The Secretary