For Presumption That Wife Who Is Not Seen For Seven Years Is Dead, Husband Has To First Approach Civil Court Seeking Declaration: Karnataka HC

For Presumption That Wife Who Is Not Seen For Seven Years Is Dead, Husband Has To First Approach Civil Court Seeking Declaration: Karnataka HC

Judiciary

The Karnataka High Court on August 20, 2019, in the case of Union of India v. K.L. Micheal has held that for the presumption that wife who is not seen for seven years is dead, the law provides that the husband has to first approach the Civil Court seeking declaration that his wife is dead.

A Division Bench comprising of Justice L. Narayana Swamy and Justice R. Devdas in this respect has held that “Instead of approaching the Civil Court and obtaining decree, the respondent has presumed that she must have died and had contracted the second marriage, which on the face of it is a misconduct.”

In this case, the petitioner-Railway Authority has issued Articles of Charge alleging that the respondent-employee has contracted the second marriage during the subsistence of first marriage. The Authority took into consideration the enquiry report submitted by the enquiry officer and imposed a punishment of reduction of pension by 50% for a period of five years against the respondent. The same was challenged before the Central Administrative Tribunal which by its order dated 10th October 2018 quashed the order of punishment. This led employer-Railway to move the High Court.

Railways argued before the High Court that the “Tribunal has made a discussion (in its order) to the extent that the respondent has committed an act of bigamy and when things are not disputed even by the respondent himself, setting aside the punishment order is contrary to principles of law.”

The respondent opposed the appeal by submitting that “As the first wife has eloped, respondent (he) has waited for seven years and presumed that she had died, thereafter entered into a second marriage. There is no error committed by the tribunal.”

After hearing both the parties, the Bench observed that “There is no scope for presumption that wife would be dead, in case if she is not seen for about seven years. For the purpose of the said presumption law provides that the husband has to approach the civil court seeking declaration that his wife is dead. Instead of approaching the civil court and obtaining decree, respondent has presumed that she must have died and had contracted second marriage, which on the face of it is misconduct. Under these circumstances, the order of the tribunal is to be set aside since the reason assigned is contrary to law and fact.”

As regards reduction in punishment period, the Bench said “Honorable Supreme Court has held that interference with the enquiry report and punishment is not for the courts. But in the facts and circumstances of the case that the respondent has retired from service and he is surviving only on pension, if it is deprived, it is nothing but deprival of livelihood of a person. If punishment would have been imposed upon respondent during the period of his service, that would have been a different thing. Under the circumstance, though we confirm the finding of the enquiry officer and the order of punishment, but the only interference to be is with regard to the reduction of period of five years to three years.”

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