Indian Evidence Act

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Question asked on: 24/01/2015

My father has been missing for the last 30 years. He was a businessman and went to Bombay for business purpose. However, my grandfather had filed an FIR in Bombay but he was unable to pursue the case. Therefore, The case was lagging behind and there was no clue of my father. Can the court resume that his death in these circumstances.

Advised by: Shivendra Pratap Singh,

Section 108 of the Indian Evidence Act which reads: “Provided that when the question is whether a man is alive or dead, and it is proved that he has not bean heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.”

Section 107 of the Indian  Evidence Act which says that:  “Whew the question is whether a man is alive or dead, and it is shown that he was alive within 30 years, the burden of proving that he is dead is on the person who affirms it.”

Section 108 is an exception to Section 107. If a case comes within the four corners of Section 108 it is taken out of the purview of Section 107. Section 108 is only of assistance for the purposes of proving the factum of death and not the time or the date of death. If time or date of death becomes material in any particular case, that fact will have to be proved as any other fact, no assistance being available from Section 108.

If a person has not been heard of for 7 years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the 7 years lies upon the person who claims a right to the establishment of which that fact is essential.

There is no legal presumption either that the person concerned was alive up to the end of the period of not less than seven years, or that he died at any particular point of time during such period, the only presumption being that he was dead at the time the question arose, if he has not been heard of during the preceding seven years.

law only presume that the person concerned is died which has never been heard in past seven years. this presumption of the law is called presumption of judicial death. Judicial death is a term used by the framers of Indian evidence act for deciding of the case in absence of any fact regarding death of the person concerned.

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