Mumbai: The Bombay High Court has declared that a man who has been missing since 2003, is presumed to be dead. It quashed and set aside an order of a lower court that had sought evidence from the son that his missing father had suffered from memory loss.“Merely because the plaintiff could not produce any medical records of his father after a period of more than 7 years to show memory loss of the father, it cannot be a ground to disbelieve the claim made by the plaintiff. The circumstantial evidence leans in favour of the plaintiff,” said Justice Jitendra Jain on Thursday. He allowed his Borivli-based son’s appeal against the trial court’s Oct 31, 2015, order that dismissed his suit to declare his father as ‘dead’.On April 8, 2003 the father went for a medical checkup and did not return. The son lodged a missing complaint. In Nov 2011, the police certified the father is missing from April 8, 2003. However, the trial court, while dismissing his suit said no evidence was led on his father’s memory loss. Also, no evidence was given to show that other than the son, there are no other legal heirs.Justice Jain noted that the trial court had, however, accepted the son had tendered a police complaint and a certificate. The son had produced the ration card, birth certificate, passport copy and newspaper advertisement. “None of these documents were found to be incorrect or rebutted by the state-defendant,” the judges said, adding “these documents are prepared and issued by the state officers.”The son also published advertisements in a Marathi and a Kannada newspaper offering reward to anyone providing information about his father. “This also indicates the fact that from 2003, Mr D has gone missing,” said Justice Jain. He noted that birth certificate is issued by Karnataka govt, passport is issued by the Centre and ration card is issued by the local authority. “Certainly these documents cannot be brushed aside,” he added.Justice Jain said the son’s advocates, K B Adyanthaya and R K Shetty, were justified in relying on Section 108 of the Indian Evidence Act, which provides that if person is not heard for 7 years by those who would naturally have heard of him if he had been alive, then it is presumed such a person is dead. “There is nothing on record which shows otherwise and, therefore, in my view, the trial court was not justified in dismissing the suit,” he added. Allowing the son’s appeal, Justice Jain directed a decree be drawn “to declare and pronounce that D is presumed to be dead on expiry of 7 years from April 8, 2003 or thereabout.”
