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Soldier Missing for 7 Years To Be Presumed Dead, Not as ‘Deserter’, Under Indian Evidence Act: Jammu and Kashmir High Court

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This Case concerns the dispute relating to the status of a soldier, whose whereabouts are not known for seven years.

Brief Facts of the Case:

The Petitioner, Madhu Devi had filed this petition seeking a declaration that her husband Asha Ram, be declared dead in terms of Section 108 of the India Evidence Act. A writ of certiorari to quash the order of Respondents whereby the Asha Ram was declared as ‘deserter’ had also been sought.

The Petitioner’s husband was serving as Head Constable in 16 Battalion CRPF and was last posted at Civil Lines Mathua, Uttar Pradesh. The Group Centre of the Battalion is stated to be at Ban Talab, Jammu where the Petitioner’s husband was putting up in the residential quarter allotted to him. In June 2010, the Petitioner was informed that her husband went to purchase vegetables but did not return. 

The search for him was made by the Respondents but could not ascertain his whereabouts. However, the Respondents, instead of locating him levelled charges of desertion of the Unit against the husband of the Petitioner. 

In such circumstances, the Petitioner was left with no option, but to approach this Court by filing a petition, in which she sought a writ of Habeas Corpus directing Respondents as well as the state of Uttar Pradesh to produce her husband. 

Petitioner’s argument: 

It was contended that her husband had not been heard of by the family for the last more than seven years and even the Respondents were unable to trace him despite making all-out efforts including the issuance of notices in the Print and Electronic Media. 

On this ground, it is urged by the Petitioner that her husband be declared as dead and orders of the respondents whereby he had been declared as ‘deserter’ be quashed. 

Respondent’s argument: 

After the Petitioner’s husband did not return from the market, the search parties were sent out to trace him in the local area, Bus Stand, and Railway Station. FIR was lodged in this regard with Highway Police Station, Mathura, and a letter was also addressed to SP District Chamoli(Uttrakhand), but the Petitioner’s husband could not be traced. 

On 10.06.2010, a warrant of arrest was issued against the Petitioner’s husband following the procedure, but still, he could not be traced. A Court of Enquiry was also conducted, and the Petitioner’s husband was declared as a deserter from CRPF w.e.f  03.06.2010. 

A Departmental Enquiry was ordered against the Petitioner’s husband under Sec. 11(1) of CRPF Act, 1979 read with Rule 27 of CRPF Rules, 1955, and based on departmental inquiry, charges were established against the Petitioner’s husband. In the order dated 31.03.2011, the punishment of dismissal from service was imposed upon the Petitioner’s husband. 

Observation by the Court: 

From the sequence of events, it was established that the Petitioner’s husband remained untraceable and his whereabouts are not known since 03.06.2010. 

Section 108 of the Indian Evidence Act casts the burden of proving that a person is alive, who has not been heard of for seven years upon the person who affirms it. The Petitioner provides material on record that her husband could not be traced for more than seven years i.e., w.e.f 03.06.2010. The Respondents were also not in a position to state that the Petitioner’s husband is alive. The Respondent had also not disputed that the Petitioner’s husband remained untraceable. Thus, it is to be presumed that the husband is dead as per Section 108 of the Indian Evidence Act. 

The word ‘desert’ in the present case means illegally run away from the military service. A person whose whereabouts were unknown for the last more than 10 years, cannot be stated to have illegally run away.

In the instant case, the Petitioner’s husband was presumed to be dead as his whereabouts are known for the last seven years and cannot be held guilty of deserting the service of CRPF. The action of the Respondents in declaring the petitioner’s husband as ‘deserter’ and thereafter handing down the punishment of dismissal is unsustainable in law. This view was supported in the case of N. Pankajam vs. State of Tamil Nadu (2006). 

The decision of the Court: 

The Writ petition was allowed and the Petitioner’s husband, namely Asha Ram was presumed to be dead. The order of the Respondents declaring the Petitioner’s husband ‘deserter’ and dismissing him from the service was quashed.  The Respondents were directed to release all the service/pensionary benefits of the Petitioner’s husband in favour of rightful claimants. The petition stood disposed of. 

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