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 ser