Under the Hindu Marriage Act, 1955, a marriage can be dissolved based on the assumption of death of one of the two persons in the marriage. This is a term called divorce on the presumption of death.
The so-called presumption of death is the one that happens when a person is missing for a continuous period of seven years or more, and their whereabouts are unknown. In a situation like this, the court may assume that the person is dead and so it may issue a divorce to the other spouse.
In order to file for divorce on the basis of death, the spouse who is claiming the other spouse is dead must first show that the other spouse has been missing for at least seven years. This can be achieved by the way of generating evidence like police reports, newspaper advertisements, and other documents that are usually involved in the process. The court will then give a notice to the person who left, telling them they can be there and challenge the divorce petition.
If the unreachable spouse does not reply to the notice, the court may then go ahead with the case and decide to grant a divorce on the basis of the presumed death. Yet, in case the missing spouse does show up and challenges the case, the court will be required to look at their objections and make the decision whether or not to grant the divorce.
The same goes with divorcing on the grounds of death which is a last option and should only be applied if all other ways of finding the missing spouse have failed. If the missing spouse is found alive after the divorce has been granted, they can seek to review the divorce decree and have it discharged.
Moreover, if the absentee spouse is later discovered to be alive, the affected spouse may have to pay damages for the property or assets that were awarded to him/her as part of the divorce settlement. Thus, one should be very careful and do his/her homework properly in finding the missing spouse before filing a divorce on the basis of death.
To establish the presumption of death for the purpose of obtaining a divorce under the Hindu Marriage Act, the following steps may be taken:
Filing of a petition: The wronged spouse has to file a petition before the court in charge of the case asking for the annulment of the marriage on the ground of the presumed death of the other spouse.
Evidence of missing person: The petitioner must prove with the help of the evidence that the missing spouse has been missing for at least 7 years and that the whereabouts of the spouse is unknown. Among the most common sources of the information are newspaper ads, police reports and any other documents that can be used to support the case.
Investigation by the court: After the petition is filed, the court will conduct an investigation by issuing the notices to the authorities that are concerned, for instance, the police and municipal authorities, for checking the details provided by the petitioner.
Notice to the missing spouse: The court, after the investigation, if it is satisfied that the missing spouse cannot be found, will issue a notice to the missing spouse, asking them to come before the court within a certain time period.
Publication of notice: The missing spouse may not be present in the court and, therefore, the court may order the publication of a notice in a newspaper requesting information about the missing person.
Presumption of death: If the missing spouse does not show his/her face before the court or if the newspaper notice of the missing spouse is not answered, the court may conclude that the missing spouse is dead and grant a divorce to the petitioner.
The courts will grant a divorce on the presumption of death only after it is proved that all efforts to locate the missing spouse have been done. Furthermore, in case the missing spouse is discovered to be alive in any time after the divorce is granted, they have the right to contest the divorce decree and have it annulled. Hence, it is of the utmost importance to the letter before declaring a divorce on the presumption of death the missing spouse is properly located.
To sum up, divorce on the basis of death is a legal clause that the missing spouse can use under the Hindu Marriage Act in case of divorce. Nevertheless, it is advisable to use it as the final option and with a lot of care, since it can cause serious problems if the disappeared spouse turns out to be alive.
Also read – https://desikaanoon.in/presumption-of-death-as-a-ground-for-divorce-under-hindu-marriage-act-1955/
