Answer By law4u team
In situations where a spouse is missing, and no court declaration of death has been made, the question of remarriage becomes complicated. While Indian law generally allows remarriage only after the dissolution of the first marriage through divorce or death of the spouse, there are provisions to handle cases where one spouse is missing for a significant period. In such cases, the law provides for the presumption of death, but this presumption needs to be established legally through a court process.
Legal Provisions Regarding Remarriage When Spouse Is Missing
Presumption of Death Under Section 108 of the Indian Evidence Act, 1872
According to Section 108 of the Indian Evidence Act, if a person has not been heard from for a period of seven years, they can be presumed to be dead. This means that if a spouse has been missing for seven years or more, the surviving spouse can apply for a court order to declare them presumed dead. This allows the surviving spouse to seek a divorce or remarry, even though the missing spouse has not been legally declared dead.
Section 108:
A person is presumed dead if they have not been heard of for a period of seven years or more. This presumption is a matter of law, and a court declaration is required to take advantage of this provision.
Court's Role:
To use the presumption of death under Section 108, a person must approach the court with a petition stating that the spouse has been missing for at least seven years. After a thorough examination of evidence, the court may issue a presumption of death for the missing spouse.
Example: If Asha’s husband Vikram has been missing for the last 10 years and there is no information about his whereabouts, Asha can file a petition in court under Section 108 to have her husband presumed dead. Once the court accepts this, she can legally remarry.
Hindu Marriage Act, 1955: Section 13
Under the Hindu Marriage Act, remarriage can take place legally after divorce or the death of the spouse. If a spouse is missing and has not been presumed dead by a court, remarriage would generally not be permitted, as the first marriage is still considered valid. However, if the spouse has been missing for an extended period (seven years or more), and the court issues a declaration of presumption of death, it will effectively dissolve the marriage, allowing the surviving spouse to remarry.
Ground for Divorce (Section 13):
If a spouse is missing for a period of seven years or more, and there is no information about their whereabouts, the other spouse can file for divorce under Section 13 of the Hindu Marriage Act. This can allow the surviving spouse to legally remarry.
Special Marriage Act, 1954
Similarly, under the Special Marriage Act, if one spouse is missing and presumed dead under Section 108 of the Indian Evidence Act, the other spouse may remarry. The process of divorce or annulment can take place if the spouse has been missing for seven years, and once the presumption of death is granted by the court, remarriage is allowed.
The Process for Remarriage When Spouse Is Missing
File a Petition for Presumption of Death
If your spouse has been missing for seven years or more, you can file a petition in the civil court requesting the court to declare the spouse presumed dead under Section 108 of the Indian Evidence Act. The court will examine the circumstances and may issue an order declaring the missing person presumed dead.
Court's Investigation and Deliberation
The court will look into the facts and evidence provided. It may require documents, such as police reports, missing person reports, or proof of last known whereabouts to establish that the missing spouse has indeed been absent for a long period and there is no reliable information about their fate.
Granting a Presumption of Death
After the court’s examination, if it is satisfied that the spouse has been missing for seven years and there is no trace of them, it may declare the missing spouse presumed dead. This will allow the surviving spouse to remarry legally.
Remarriage Post Court Order
Once the court declares the missing spouse presumed dead, the surviving spouse is no longer bound by the original marriage and can remarry legally. This could be a marriage under the Hindu Marriage Act or the Special Marriage Act, depending on the personal laws applicable to the individuals.
Challenges and Limitations
Uncertainty About Missing Spouse’s Fate
One of the challenges in such cases is that the spouse could still be alive, and a court order presuming death may be based on circumstantial evidence. The missing person may later come forward, leading to complications in the legal status of the remarriage.
No Immediate Remarriage Without Legal Procedure
A person cannot simply remarry just because their spouse is missing for a few years. There must be a legal process through court declaration, and only after that is the remarriage legally valid.
Public Policy Concerns
Allowing remarriage in cases where a spouse is missing without a court order could lead to potential issues of bigamy or matrimonial fraud, which is why the law requires a court presumption of death.
Example of Remarriage after Presumption of Death
Case Example:
Priya’s husband, Rajesh, has been missing for 8 years. Priya tried all means to find him, including contacting the police and searching for any information about him. Since there has been no news about him, Priya files a petition in court to have Rajesh presumed dead under Section 108 of the Indian Evidence Act. The court hears the case, reviews the evidence, and declares Rajesh presumed dead. Priya is now legally free to remarry, and she chooses to marry Nikhil.
Conclusion
In India, remarriage is allowed if a spouse has been missing for seven years or more and has not been declared dead. The law provides for the presumption of death under Section 108 of the Indian Evidence Act, and once the court declares the missing spouse presumed dead, the surviving spouse can remarry legally. However, the presumption of death must be legally obtained through a court process, and remarriage without this declaration is not permitted.
