Soldier Whose Whereabouts Are Unknown For More Than 7 Years Would be Presumed 'Dead', Can't Be Called 'Deserter': J&K High Court

The Bench of Justice Sanjay Dhar observed this while noting that the word 'desert' would mean illegally running away from the military service and a person, whose whereabouts are unknown and who has not been heard of for the last more than 10 years, "cannot be stated to have illegally run away from his service."

The matter before the Court

The petitioner (one Madhu Devi) filed a plea praying that her husband namely Asha Ram, be declared as dead in terms of Section 108 of India Evidence Act.

She sought a Writ of Certiorari to quash the order of respondents whereby the missing husband of the petitioner has been declared as 'deserter'.

Facts of the Case

Petitioner's husband was serving as Head Constable in 16 Battalion CRPF and was last posted at Civil Lines Mathra, UP. In June 2010, the petitioner got a phone call from the Company Commander of the Unit informing her that her husband had gone to fetch some vegetables, but did not return back.

The petitioner tried to contact her husband, but was unable to do so, the respondents also began a search for the petitioner's husband, but could not ascertain his whereabouts.

Thereafter, the salary of husband of the petitioner was stopped and it was communicated to her (petitioner) that her husband is absent from duty and that he should report for duty, else warrants of arrest would be issued against him.

The petitioner responded to the said communication stating that she had no knowledge about the whereabouts of her husband.

On 09^th November 2010, the petitioner addressed another communication to respondent No.2 requesting him to make all out efforts to locate her husband, but, instead of locating him, the respondents leveled the charge of desertion of the Unit against the husband of the petitioner.

She contended before the Court that her husband has not been heard of by the family for the last more than seven years and even the respondents have been unable to trace him despite making all out efforts including issuance of notices in the Print and Electronic Media.

On this ground, it was urged by the petitioner that her husband be declared as dead and the order of the respondents whereby he has been declared as 'deserter' be quashed.

Court's Order

Considering the surrounding circumstances, the Court noted that it was established that the petitioner's husband has remained untraceable and his whereabouts are not known since 03^rd June 2010.

Citing Section 108 of the Indian Evidence Act, the Court remarked,

"In fact, the respondents have not disputed that the petitioner's husband has remained untraceable. Therefore, it is to be presumed that petitioner's husband is dead as per Section 108 of Indian Evidence Act."

Importantly, the Court said,

"It is a case where the petitioner's husband was not available at all for joining the duties, as such, he could not report for duty. The action of the respondents in declaring the petitioner's husband as 'deserter' and thereafter handing down the punishment of dismissal to him, is unsustainable in law."

The writ petition was allowed and the petitioner's husband, namely Asha Ram was presumed to be dead. The orders of the respondents, whereby the petitioner's husband had been declared as 'deserter' and had been dismissed from service, were quashed.

The respondents were directed to release all the service/pensionary benefits of the petitioner's husband in favour of the rightful claimant(s) in accordance with the applicable rules.

Case title - Madhu Devi v. Union of India and others [OWP No. 1440/2017]

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