Section 108: Burden of Proving That Person is Alive

Overview

Section 108 of the Bhartiya Sakshya Bill, 2023, deals with a common but sensitive legal question: is a person alive or dead? It establishes a rule about *who* needs to prove what when someone hasn’t been heard from for a long time. Essentially, after seven years of no contact, the person claiming the missing person is still alive has to provide evidence to support that claim. This shifts the usual burden of proof.

Key Principles / Ingredients

• Type of Evidence: This section primarily deals with circumstantial evidence – the lack of information about a person. It doesn’t focus on direct evidence like a photograph or a witness seeing the person.
• Conditions for Relevancy: The section becomes relevant only when it’s established that a person hasn’t been heard from for a continuous period of seven years. “Heard from” means any reliable information about their well-being from sources who would naturally have that information.
• Burden of Proof Implications: Normally, the person alleging something has to prove it. Here, the law *shifts* the burden. If seven years have passed with no news, the person saying the individual is still alive must prove it, rather than the person claiming they are dead needing to prove death. This is a presumption that operates against the person asserting life.

How Courts Use this Provision

Judges use Section 108 when a person’s existence is central to a legal case – for example, in inheritance disputes, insurance claims, or family law matters. The court first confirms the seven-year period of no contact. If confirmed, the person claiming the missing person is alive must present evidence like bank statements, letters from abroad, or credible reports from people who might have encountered them. The court assesses the evidence to determine if the burden has been met.

Illustrations and Examples

• Example 1 – Simple Situation: Ravi’s brother, Vijay, left for the US ten years ago. No one has heard from him since. Ravi wants to claim Vijay’s property as inherited. Under Section 108, Ravi must prove Vijay is still alive to prevent the property being distributed as if Vijay is deceased.
• Example 2 – More Complex Situation: Priya’s husband, Arun, disappeared seven years ago. His family claims he’s living a secluded life in an ashram. Priya wants a divorce, arguing Arun is presumed dead. The family must present evidence – perhaps a recent sighting reported to authorities, or a letter from someone at the ashram – to prove Arun is still alive. A vague rumour won’t be enough.

Important Provisos / Explanations

The Bill does not contain any specific provisos or explanations attached to Section 108. The section operates on the straightforward principle of a seven-year absence creating a presumption about death, shifting the burden of proof.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the principles of Section 108 as it existed in the Indian Evidence Act, 1872. There are no significant changes to the core rule regarding the seven-year period and the shifting of the burden of proof.

Key Takeaways

• Seven years of no contact creates a legal presumption.
• The burden of proving life shifts to the person claiming the individual is still alive.
• Circumstantial evidence is key – direct proof is not always required, but credible evidence is.
• This section is crucial in cases involving inheritance, insurance, and family law.