Report No. 69

Chapte 49

Presumption of Death

Section 108

I. Introductory

49.1. Introductory.-

To the rule contained in section 107-presumption of continuance of lif.- there is a proviso which appears in the Act in a separate section as section 108. It is usually described as dealing with the presumption of death. Appearing in the form of a proviso, it enacts that when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven 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. It is well recognised that section 108 is an exception to section 107, and takes the case out of section 107.1 Of course, this does not mean that in every case, for applying section 108, it is also necessary that section 107, should otherwise be applicable on the facts.

1. Shankarappa v. Shivrappa, AIR 1963 Mys 45.

49.2. Origin of period of 7 years.-

The period of seven years mentioned in section 108 has a history. In England, the period of seven years was inserted by an old statute of Charles II, concerning leases for lives.1 A similar period was provided in the statute in force in the seventeenth century for the punishment of bigamy. The period has since been adopted, by analogy, in other cases.2 The rule is not in England, codified. But judicial decisions have asserted, or assumed, a rule that there is a convenient presumption, applicable to certain cases of seven years' absence, where no statute applies.3

1. The Cestui qui Vie Act, 1666 (18-19 Car. 2, C. 11). See para. 49.4, infra.

2. See para, 49.5, infra.

3. See Chard v. Chard, (1955) 3 All ER 721; (Sachs J.).

II. Statutory Provisions Analogous to section 108

49.3. In order to understand the utility of a provision creating such a presumption, it will be useful to state that the question of death may arise in a variety of proceedings. It would be of interest to note statutory provisions relating to the procedure whereby the death of a missing man can be presumed. In England, the procedure, according to a study1 that was made during the Second World War, may take one of the following forms:

(1) A certificate of death issued by a Coroner under Regulation 30A of the Defence (General) Regulations, where the supposed death is the result of "war operations".

(2) An inquest held by a Coroner under section 18 of the Coroner's (Amendment) Act, 1926.

(3) A return made by the master of a British ship to the Registrar-General of Shipping and Seamen under section 254 of the Merchant Shipping Act, 1894, where the subject is missing at sea, and the subsequent issue of certificate.

(4) Presumption of the death of a sailor, soldier or airman by the Admiralty, the War Office, or the Air Ministry. A certificate issued by one of these authorities that death has been recorded is normally accepted by the Court as proof of death. Of course this is not regarded as conclusive.

(5) A petition under the Matrimonial Causes2 Act for presumption of death and the dissolution of the marriage.

(6) An application by an executor or administrator to the High Court for leave to sear death. In estates of small amount, the application is made to the Registrar.

1. See Treitel Presumption of Death, 1942 LJ 227, 283.

2. Now section 19, Matrimonial Causes Act, 1973-the present version of section 8, of the Matrimonial Causes Act, 1937.

49.4. Other English statutes.-

Besides these, there are, in England other statutory provisions relevant to the determination of death. The cestui que vie Act, 1666, provides1 that if person on whose lives estates depend remain beyond the seas or elsewhere absent themselves in this realm for the space of seven years, they shall be accounted as naturally dead.

1. The Cestui Que Vie Act, 1666 (18-9 Car 2).

49.5. Provision as to bigamy.-

Then, section 57, of the Offences against the Persons Act, 1861, defines the offence of bigamy. The proviso to that section, so far as is material, enacts:-

"Provided that nothing in this section shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years last past, and shall not have been known by that person to be living within that time."

It is sometimes said that the legislature, by this proviso, sanctions a presumption that a person who has not been heard of for seven years is dead1but the whole point of the proviso is that the accused escapes the penalty for bigamy even though the other spouse is still proved to be alive. Indeed, unless the life of the other spouse is first established, the prosecution fails in limine.2

The effect3 of an honest and reasonable mistake of fact will be further dealt with later The period of seven years mentioned in the proviso to section 57 can be traced to the original statute of 1603.4 It was subsequently adopted by analogy in the common5 law rule that a person may be presumed dead when he has not been heard of for seven years by those who would be likely to hear of him if he were alive.6

1. (a) R. v. Lumley, 1869 LR 1 CCR 196 (199). (b) R. v. Tolson, (1869) 23 QBD 168 (192).

2. G.H. T'reitel Presumption of Death, (1954) 17 Modem Law Review 530, 534.

3. 49.12, infra.

4. But under that Act it seems that accused had a defence

(i) if his spouse had been beyond the seas for seven years, even if accused knew her to be alive; and

(ii) if she was absent from him for seven years but in England or Wales, and accused did not know her to be alive.

5. A Smith & Flogan Criminal Law, (1973).

6. Doe d. Knight v. Nepean, (1833) 5 B&Ad 86 (94).

49.6. Presumption under matrimonial law.-

In relation to matrimonial proceedings, in England, the Matrimonial Causes1 Act, 1973, permits the court, in proceedings brought by a married person, to make a decree presuming the death of the other spouse on reasonable grounds and dissolving the marriage. A rebuttable presumption of the propositus death arises if he has been continually absent from the petitioner for seven years and the petitioner has no reason to believe that the propositus was living during that time. The reasons for believing in the continued existence of the propositus which prevent the presumption arising must be found in the seven-year period.2 The fact that the propositus would have been unlikely to get in touch with petitioner during the seven-year-period is immaterial, so that this is wider than the common law presumption of death.3

1. Section 19, Matrimonial Causes Act, 1973.

2. Thompson v. Thompson, (1956) 1 All ER 603.

3. Parkinson v. Parkinson, (1939) 3 All ER 108.

49.7. Provisions in India.-

Certain statutory provisions in India also deal with absence for a particular period. By way of example, mention may be made of the provisions contained in penal and matrimonial legislation.1

Section 494 of the Indian Penal Code, which punishes bigamy, has the following exception relevant to the subject under discussion:

"Exception-This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction.

Nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the some are within his or her knowledge."

It should be noted that the statutory exemption in section 494, Indian Penal Code, does not require that the accused must have made inquiries,2 on the subject of the whereabouts of the spouse.

1. Section 494, Indian Penal Code.

2. Thompson v. Thompson, (1956) 1 All ER 603.

49.7A. Under section 27(h) of the Special Marriage Act, 1954, and section 13(viii) of the Hindu Marriage Act, 1955 if a person has not been heard of as being alive for seven years or more by those who would naturally have heard of him had that person been alive, it is a ground for divorce at the instance of the other spouse. This provision is similar to section 16(2) of the Matrimonial Causes Act, 1950, which was in force1 in England when the two Acts were enacted in India. The present provision in England on the subject is contained in section 19 of the Matrimonial Causes Act, 1973, already referred to.2

1. Thompson v. Thompson, (1956) 1 All ER 603.

2. Para. 49.6, supra.

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