Presumption of death is one of the grounds for divorce as per the Hindu Marriage Act 1955. Section 13(1)(iv) of the Act states that any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has not been heard of as being alive for a period of seven years or more by those who would naturally have heard of him or her.
In the case of K.S. Rama Rao v. K.S. Lakshmi Devi (2015) 3 SCC 727,
the Supreme Court held that the ground for divorce on the basis of presumption of death of the other party is provided under Section 13(1)(iv) of the Hindu Marriage Act 1955.
In the case of Ramesh Chander v. Savitri (2005) 1 SCC 518,
the Supreme Court held that the presumption of death should be based on the facts and circumstances of each case and that there must be clear and cogent evidence to prove that the other party has been missing for a period of seven years or more and that the party has not been heard of as being alive.
In the case of S.S. Dhanoa v. State of Punjab (1999) 6 SCC 450,
the Supreme Court held that the fact that a person has not been heard of for a period of seven years or more is not conclusive proof of death and that the court must consider other factors such as the age of the person, the circumstances in which the person went missing and the nature of the evidence presented.
It’s important to note that the act of presumption of death must be proved by the petitioner and the court must be satisfied that the other party has not been heard of as being alive for a period of seven years or more by those who would naturally have heard of him or her. In case of evidence provided is not sufficient, the court may dismiss the petition.
Also, the court may take a lenient view if the act of desertion is condoned by the other party or if it was committed due to the conduct of the other party. In such cases, the court may dismiss the petition for divorce. It’s worth noting that the concept of Presumption of death is different than that of the Adultery,Cruelty, Conversion or Desertion in marriage, and it is the burden of the petitioner to prove the act of Presumption of death rather than the burden of the respondent to prove the absence of it.