JUDGMENT
Ranjan Gogoi, J.
1. The petitioner is the wife of one Nazul Haque Mazumdar, who was at the relevant point of time, serving as CO, V.D.O. of the Baithalangso Police Station. According to the petitioner, on 18.5.1996, while on duty, the husband of the petitioner was kidnapped by ULFA Extremists. In regard to the aforesaid incident, the petitioner had lodged a F.I.R. in connection with which Baithalangso P.S. Case No. 36 of 1996 under Section 365 IPC read with Sections 10/13 of the Unlawful Activities (Prevention) Act was registered. According to the petitioner, the whereabouts of her husband since 18.5.1996 are not known. In these circumstances after the repeated attempts of the petitioner to obtain financial relief at the hands of the Government had failed, the present approach to this Court has been made under Article 226 of the Constitution; The prayers made in the writ petition are for payment of the salary of the husband of the petitioner till such time that her husband can be presumed to be alive and thereafter for family pension on the presumption that her husband is no more.
2. The pleadings in the writ petition, which must be noticed by the Court, are to the effect that except for 3 months pay, which was granted by the State by an order dated 25.6.1997, no other financial benefit has been forthcoming leaving the petitioner in dire straits. The petitioner has brought on record a letter dated 17.4.1998 of the Inspector General of Police (OSD) to the Deputy Secretary to the Government of Assam, Home (A) Department requesting the State to presume the husband of the petitioner to be dead and for grant of family pension to the petitioner on that basis. The petitioner has stated that the aforesaid request has been turned down by the State Government by an order dated 21.9.1999 on the ground that the period prescribed under Section 108 of the Indian Evidence Act not being over, no presumption of death can be drawn. It is in the above circumstances that the present writ petition has been filed seeking the reliefs claimed.
3. No counter has been filed on behalf of the State respondents nor any instructions, as may have been received by Shri H.K. Mahanta, learned Government Advocate, Assam, who had represented the respondents, were placed before the Court at the hearing.
4. Shri AK Goswami, learned senior Counsel appearing for the writ petitioner, has placed before the Court the relevant provisions of Sections 107 and 108 of the Indian Evidence Act to contend that as the whereabouts of the husband of the petitioner are not known to the petitioner till date, on a conjoint consideration of the above noted provisions of the Indian Evidence Act, a presumption should be drawn by the Court that the husband of the petitioner is no more and on that basis this Court ought to direct payment of family pension to the petitioner. Elaborating, Shri Goswami, learned counsel for the writ petitioner has argued that taking into account the provisions of Sections 107 and 108 of the Indian Evidence Act/the husband of the petitioner may be presumed to have been alive till a period of seven years had elapsed from 18.5.1996 (date from which petitioners husband has been missing) and thereafter the petitioner’s husband may be presumed to be dead. In these circumstances, according to the learned counsel, the petitioner would be entitled to the salary of her husband for a period of 7 years with effect from 18.5.1996 and thereafter to family pension, on the basis of the legal presumption of death of her husband under the provisions of the Indian Evidence Act, as noted above. Reliance, in this regard, has been placed by Shri Goswami on two Supreme Court judgments, i.e., in the cases of N. Jayalakshmi Animal and Ors. v. R. Gopal Pathar and Anr. and L.I.C. of India v. Anuradha, .
5. The arguments advanced on behalf of the petitioner being on the basis of the provisions contained in Sections 107 and 108 of the Indian Evidence Act and the Court being called upon to decide on the correct meaning that should be ascribed to the said provisions, the discussion may begin by extracting the above two provisions of the Indian Evidence Act:
107. Burden of proving death of person known to have been alive within thirty years. – When the question is whether a man is alive or dead, and, it is known that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108. Burden of proving that person is alive who has not been heard of for seven years. – Provided 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.
6. Section 107 of the Indian Evidence Act provides that if a question whether a man is dead or alive is raised and if such person was alive within 30 years of the question being raised, the burden of proving that he is dead is on the person, who affirms it. In other words, Section 107 permits a presumption to be drawn that such a person is alive. On the other hand, Section 108 of the Act provides that when such a question is raised and if it is proved that the person in question has not been heard of for 7 years by those who would have naturally heard of him if he had been alive, the burden of proving that the person is alive is shifted to the person who affirms it. A reading of the two provisions of the Indian Evidence Act as noted above, would go to show that Section 108 really carves out an exception to the rule laid down in Section 107 of the Act. The presumption that the person is alive permissible under Section 107 of the Act will cease to operate if such person has not been heard of for a period of 7 years and in such a situation a presumption in law will arise that the person is dead, which presumption, however, can be rebutted by proof being laid that the person is alive. Such proof is required to be adduced by the one who affirms that such person is alive.
7. In the case of N. Jayalakshmi Ammal (supra), the question that arose before the Apex Court is whether the death of a person whose whereabouts were not known since August 1930 could be presumed on the expiration of 7 years from the said date so as to enable his widow to be entitled to half share in the husband’s property. Such share of a widow in the husband’s property came to be conferred by the Hindu Women’s Right to Property Act that came into force on 1.4.1937.
The provisions contained in Sections 107 and 108 of the Indian Evidence Act were considered by the Court in the context of the above question. The Apex Count took the view that under the provisions of Section 108 of the Act, no presumption can be drawn that the person had died on an particular date or on the expiry of 7 years from the date he had gone missing. Such facts are required to be proved by specific evidence being led before the Court to the said effect. What Section 108 of the Act enables is the drawal of a presumption that if the person missing has not been heard of for a period of 7 years/calculated back from the date when the question is raised that such person is no more. Beyond that no other presumption can be drawn.
The following passage from Sir John Woodroffe and Amir Ali’s Law of Evidence, 15th Edn. relied on by the Apex Court may be usefully extracted herein below for better understanding of the question:
The principle of Section 107 is that when once a state of things is shown to exists there is in law a presumption of its continuance for a period for which such state of things ordinarily lasts. This section is merely a deduction from this presumption. If a person is shown to have been alive within thirty years of the date on which the question whether he is alive or dead arises, there is a presumption of his being alive, and the burden of proving that he is dead lies on him who asserts that he is dead. But this presumption is rebutted, if it is shown that he has not been heard of for seven years by those who if he had been alive, would naturally have heard of him and, on such proof being given the burden of proving that he is still alive, is under Section 108, upon those who assert that he is alive. The presumption under Section 108 is as to the fact of death at the time the question was raised and antecedent time. There is no presumption also to the cause and circumstances of the death.
Section 107 deals with the presumption of continuation of life, whereas Section 108 deals with the presumption of death. Section 108 enacts a proviso to Section 107 by specifying that when a person was continuously absent for seven years and he was not heard by his friends and neighbours he may be presumed to have died and the burden of proving that he is alive under Section 107 ceases at the expiration of seven years from the period when the person in question was last heard of. The presumption under Section 107 will apply when the question is whether a person was alive or dead and not where the question is whether the person was alive or dead on particular date.
8. The question came up before the Apex Court once again in the case of LIC (supra). For a better understanding of the question involved, the facts in C.A. No.2655/99 disposed of by the Apex Court by the aforesaid judgment, may be noticed, in brief:
One Sham Prakash Sharma had taken out a LIC Policy with effect from 8.2.1986. The premium was payable every six months. For a period of two years, the premiums were paid. The policyholder disappeared/went missing on 17.7.1988. As the premiums were not being paid, the LIC sent an intimation that the Insurance Policy had lapsed. On 29.6.1996, the wife of Sham Prakash Sharma raised a claim that the benefits under the policy should be paid to her on the basis that, as the whereabouts of Sham Prakash Sharma were not known for a period of seven years, he should be presumed to be dead. As against this, the stand of the LICI was that the policy had lapsed after two years of its operation on account of non-payment of premiums. The above controversy was agitated by the parties before the Court and the answer initially provided appears to be that on the expiry of seven years from the date when the person went missing, he may be presumed to be dead. Such presumption of death will be on the date when the person went missing. Accordingly, the claim was answered against the LIC. The Apex Court, on an elaborate consideration of the law applicable, took the view that under Section 108 of the Indian Evidence Act, a limited presumption that a person who has not been heard of for seven years is dead may be drawn provided a period of seven years had elapsed when the question of his being dead or alive was raised. The Apex Court had clearly laid down that at what point of time the person was dead cannot be presumed under Section 108 of the Act as the same is a matter of evidence. The view expressed by the Apex Court as stated in paragraphs 14, 15 and 16 of the judgment being appropriate to the instant matter, the aforesaid paragraphs may be conveniently extracted hereunder:
14. On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words the law as to presumption of death remains the same whether in the common law bf England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of the Evidence Act, though Sections 107 and 108 are drafted as two sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it.
An occasion for raising the presumption would arise only when the question is raised in a court, tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise.
15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence, direct or circumstantial, and not by assumption or presumption. The burden of proof would lie on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely may it be permissible to proceed on the premise that the death had occurred on any given date before which the period of seven years absence was shown to have elapsed.
16. We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in the consumer forum or civil court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only could the death be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies, it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant LIC was justified in turning down the claims by pleading that the policies had lapsed, and all that could be paid to the claimants was the paid-up value of the policies.
9. Applying the principles noticed above, what is evident in the present case is that though in the writ petition filed it has been clearly averred that the whereabouts of the husband of the petitioner were not known, the period of seven years, expiry of which alone will permit the drawal of the presumption under Section 108 of the Indian Evidence Act had not elapsed on the date when the writ petition was filed, i.e., on 29.5.2001. However, as the writ petition had remained pending thereafter the question as to whether the husband of the petitioner is dead or alive may be understood to have been before the Court, all along. The stipulated period of seven years elapsed on 19.5.2003. On the said date, i.e., 19.5.2003, the question as to whether the petitioners husband was dead or alive was very much a live issue before the Court. Calculated backwards for a period of seven years with effect from the said date, i.e., 19.5.2003 the whereabouts of the petitioner’s husband were not known. Such whereabouts are not known even till date. The petitioner, as the wife, would have, in the normal course, heard of her husband, if he had been alive. In the above circumstances the burden of proving that the husband of the petitioner is alive is on the respondents so as to enable them to justify their actions in not paying family pension to the petitioner. The Respondents in the present case have not denied or disputed the fact that the whereabouts of the husband of the petitioner were not known on 19.5.2003 or even as on date. In fact the learned State Counsel, in the course of his submissions, has been fair to say that, the whereabouts of the husband of the petitioner not being known, all legal presumptions as may be permissible in law, has to be drawn by the Court. In the above situation, there is no escape from the conclusion that on 19.5.2003 a presumption could be drawn that the husband of the petitioner is no more. It must be made clear that the presumption of death is not on any particular date, much less, on the date coinciding with the expiry of seven years from 18.5.1996. The presumption that is permissible to be drawn and, therefore, is being drawn by the Court is that on 19.5.2003 it may be presumed that the husband of the petitioner has not remained alive. There is no evidence, either, that the petitioner’s husband is alive as on date. The petitioner, therefore, would be entitled to payment of family pension with effect from 19.5.2003.
The further argument of the learned counsel for the petitioner is that for a period of seven years from the date when her husband went missing, since he cannot be presumed to be dead, he must be presumed to be alive. The argument is logical and is also warranted under Section 107107 of the Indian Evidence Act. It is on the basis of the aforesaid argument that the learned counsel for the petitioner submits that the petitioner would be entitled to the salary of her husband for a period of 7 years from the date when he went missing. It is the latter part of the argument, which the Court finds difficult to accept. If the whereabouts of the petitioner’s husband were not known it would be correct to assume that he had not worked/rendered service during the said period. The petitioner, therefore, will not have any legal right to claim the salary of her husband for the aforesaid period. That the disappearance of the petitioner’s husband had brought untold miseries on the petitioner and other members of the family by itself can hardly be a justification for a direction for payment of salary. Any payment for the aforesaid period has to be an act of gratis and what is payable on account of gratis sought not be enforced by a Court of Law. In such circumstances, the aforesaid part of the claim of the petitioner, i.e., salary for a period of 7 years from 18.5.1996, (date of disappearance of the husband of the petitioner) is left to be decided on the wisdom and discretion of the respondents, which decision, the facts of the case would require to be spelt out at the earliest.
10. In the light of the foregoing discussions, this Writ Petition has to be partly allowed and to the extent indicated above, which I hereby do.