The petitioner is the wife of one Mr. M. Radhakrishnan who while in the service of the Army as a Sepoey was found missing from 5.10.1995 onwards. The Army declared him a deserter under Section 106 of the Army Act and after waiting for three years, on 5.11.1998 the said Mr. Radhakrishnan was dismissed from service. The dismissal is communicated to his wife namely, the petitioner. While counsel for the petitioner contended that petitioners husband is missing while he was in service and by virtue of Section 108 of the Indian Evidence Act, 1872 there is a presumption of death after seven years from the date of missing and therefore, petitioner’s husband should be taken to have died in service and all consequential benefits should be given to his family, the Additional Central Government Standing Counsel appearing for the respondents contended that since petitioner’s husband was declared as a deserter and was dismissed from service, no benefits including pension are available to the family members.

2. The petitioner’s husband joined service in the Army as a Sepoey on 24.10.1979. His tenure of colour service was 17 years and he had to serve another two years under reserved service. However, if the service person becomes sick and is declared low medical category, he is not bound to complete the two years of reserved service. It is conceded by respondents that the petitioner’s husband turned sick and he was admitted in the Military Hospital. Jabalpur on 22.3.1995. Since petitioner’s husband had to undergo major surgery, he was sent to Base Hospital, Lucknow and was admitted there on 25.3.1995. The petitioner has produced Ext.P1 letter written by petitioner’s husband to their daughter stating that he had to go to Lucknow for a surgery which is a position conceded by the respondents. The ACGSE appearing for the respondents submitted that the medical records at Lucknow Hospital pertaining to petitioner’s husband are not traceable and therefore, the exact date of admission, the date of surgery and the time he spent in the hospital are not available. However, it is admitted that the petitioner’s husband underwent surgery and thereafter reported at the Army Unit at Bangalore on 4.10.1995 wherefrom he was advised to go to Jabalpur and attend the Medical Board for considering his medical fitness after surgery. According to the respondents, petitioner’s husband though was to report at the Military Hospital, Jabalpur for examination by Medical Board, he never reached there. After reporting at Army office at Bangalore on 4.10.1995, petitioner’s husband was not heard of and is treated missing from 5.10.1995 onwards. The Army conducted enquiry under Section 106 of the Army Act, first declared the petitioner’s husband absent and later declared him a deserter and then reported the matter to the Police who could not trace him so far. The tenure of petitioner’s husband would have been over on 28.2.1996 if he was declared low medical category and in any case his service would have been over with another two years reserved service i.e., by 28.2.1998. However, strangely the Army dismissed him from service only with effect from 5.11.1998. If a service person deserts while in service, he is liable to be declared so under Section 106 of the Army Act and can be dismissed from service for that reason. However, the question is whether in this case the presumption of death of petitioner’s husband is available under Section 108 of the Evidence Act and if so, what are the consequences. There is no conflict between Section 106 of the Army Act Section 108 of the Evidence Act. While the Army is entitled to declare a person who absents from service a deserter, Section 108 of the Evidence Act entitles to draw a presumption of death for all purposes after 7 years from the date, a person is not head of or missing. The petitioner’s husband is not heard of for the last nine and a half years is a fact which cannot be denied by anyone including the respondents. E