J&K HC said “A soldier whose whereabouts are not known cannot be called as a deserter”

Govt seeks to criminalize adultery only for the armed forces

Case: Madhu Devi v. Union of India and others 

Citation: [OWP No. 1440/2017]

Coram: Hon’ble Justice Sanjay Dhar

“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,’’ Justice Dhar said.

The Jammu & Kashmir High Court recently observed that a Soldier, if his whereabouts remains unknown for more than seven years will be believed to be dead, but not by imagination he could be held guilty of having deserted the service of CRPF.

Facts of the case

The husband of the petitioner served as Head Constable in 16 CRPF Battalion and was last posted at Mathura, UP, Civil Lines. The petitioner received a phone call from the Unit Company Commander in June 2010, telling her that her husband had gone to get some vegetables, but did not return.

The petitioner attempted to reach her husband but could not reach him and respondents also started a search for the husband of the petitioner but were unable to determine his whereabouts. The petitioner’s husband’s salary was then stopped and the petitioner was told that her husband was absent from duty and that he should report for duty, or an arrest warrant would be issued against him.

The petitioner replied to the respondents, claiming that she had no idea of her husband’s whereabouts. The petitioner asked the respondent on 09 November 2010, to make efforts to locate her husband, but instead of locating him, the respondents levied the charge of desertion of the unit against the petitioner’s husband.

She contended in the Court that for more than seven years the family had not heard of her husband and even the respondents were unable to trace him despite all attempts, including the publication of notices in the print and electronic media. On this ground, the petitioner requested that her husband be pronounced dead and to quash the order of the respondents under which he was declared as ‘deserter’. She sought a Writ of Certiorari to quash the order of respondents in which her husband has been declared as ‘deserter’.

Court’s Order

In view of the surrounding circumstances, the Court noted that it was established that the husband of the petitioner remained untraceable and that his whereabouts as of 03 June 2010 was not known. The Court noted, citing Section 108 of the Indian Evidence Act, “In reality, the respondents did not dispute that the husband of the petitioner had remained untraceable and that his whereabouts were not known. Thus, it is to be presumed that the petitioner’s husband is dead as per Section 108 of the Indian Evidence Act.”

The Court also noted that it was a situation where the petitioner’s husband was not at all available for the purpose of entering the duties and, as such, was not in a position to report for duty. The respondents’ action to declare the husband of the complainant as ‘deserter’ and subsequently hand over the dismissal penalty to him is unsustainable in law. The writ petition was permitted, and the husband of the petitioner was presumed to be dead. The respondents’ orders, under which the petitioning husband was declared a ‘deserter’ and dismissed from service, were quashed. In accordance with the applicable rules, the respondents were directed to release all the service/pensionary benefits of the husband of the petitioner in favour of the rightful claimants.

Priyanshi Budholia
I am Priyanshi Budholia, a student of B.A.LL.B (Hons.) from Dharmashastra National Law University, Jabalpur. I always like to express my concern in research & writing skills as it enhances my skills for future endeavors in the legal field. I prefer to live in a dynamic environment where people help others to develop their skills.