Advocate Tripathi (Blog)

Introduction:

The Indian Evidence Act, 1872, is a fundamental piece of legislation that governs the admissibility of evidence in Indian courts. Among its many provisions, one area of great importance is the presumption of death, or as it is often referred to, the “shall presume” clause. In this blog, we will delve into the intricacies of this provision and its significance in the Indian legal system.

Understanding the ‘Shall Presume’ Clause:

Section 108 of the Indian Evidence Act deals with the presumption of death. It states that when a person has not been heard of for seven years by those who would naturally have heard of them if they were alive, the law shall presume that person to be dead. This presumption, in essence, shifts the burden of proof from the party asserting death to the party disputing it.

Significance in Legal Proceedings:

The ‘shall presume’ clause holds significant relevance in various legal proceedings, including:

1. Succession and Inheritance: In cases involving the distribution of property, especially when there is a dispute over inheritance, the presumption of death plays a pivotal role. The Act’s provision simplifies matters by presuming a person dead after seven years of unavailability.

2. Matrimonial Disputes: In cases of divorce or disputes related to a missing spouse, the presumption of death can be crucial. It allows the court to determine the status of the missing spouse, which, in turn, affects the outcome of the case.

3. Insurance Claims: In life insurance claims, the ‘shall presume’ clause can affect the eligibility of the claimants. If the insured person has been missing for seven years, the insurance company may presume the person’s death, making the claim process more straightforward.

Challenges and Controversies:

While the presumption of death simplifies legal proceedings in many cases, it is not without its challenges and controversies:

1. The Seven-Year Rule: The Act’s requirement that a person must be missing for seven years can be a considerable burden in certain situations, such as natural disasters or accidents where conclusive evidence may be difficult to obtain.

2. Abuse of the Provision: In some cases, parties might manipulate the presumption of death to their advantage, leading to disputes and fraudulent claims.

Conclusion:

The ‘shall presume’ clause in the Indian Evidence Act, 1872, provides a legal framework for handling cases involving the presumption of death. It serves as a valuable tool in simplifying legal proceedings related to inheritance, matrimonial disputes, and insurance claims. However, its rigidity in the seven-year rule and the potential for misuse underscore the importance of a nuanced approach to its application in practice. As Indian society evolves and technology advances, it may be necessary to revisit and update this provision to better align with the complexities of modern life.