Madhya Pradesh High Court rues lack of support for kin of missing soldiers, says Army behaviour turns rude

The Madhya Pradesh High Court recently said that when a soldier goes missing, the Indian Army’s behaviour towards his kin becomes rude and the military instead of helping his family compels them to move court for declaration of his civil death [Chhaya vs Public At Large]..Justice Anil Verma said the Indian Army expects the kin to get the date of soldier's civil death declared through civil Court and they are denied the pension and other retirement allowances of the missing solider, the Court said. The Court made the observation while dealing with a case related to the civil death of Army Signalman Surendra Singh Solanki, who went missing in 2010 when he had been called for military training to Goa. While acknowledging that history of Indian Army is full of unique tales of courage, sacrifice and martyrdom, the Court said,“The brave soldiers of the Indian Army live for the country and die for the country. But unfortunately when a soldier suddenly goes missing, the Indian Army's behaviour towards him becomes somewhat rude. Instead of helping the family of the missing solider, the Indian Army expects them to get the date of his civil death declared through civil Court, and they are denied to release the pension and other retirement allowances of the missing solider.”Though the same is done because of the existing rules, it causes hardship to the families of missing soldiers, the Court said.“It is a hardship for grieving family of a missing soldier. Although this is done under certain rules, but considering the pride and self respect of the soldier, now these worn out Rules need to be abolished.” .In the present case, Solanki’s parents had started receiving ordinary family pension in 2010 but in 2020 they received a communication from the authorities that due to the unavailability of death certificate, Special Family Pension and other arrears could not be paid to them.The parents then moved the civil court for a declaration regarding Solanki’s civil death. In 2020, the Civil Judge decreed the suit by declaring Solanki’s civil death from the date of institution of civil suit which is June 24, 2020.The decision was confirmed in civil appeal by the District Judge, leading to filing of the present second appeal before the High Court. It was argued before the High Court that the authorities had already considered Solanki’s date of death as July 25, 2010, when the ordinary family pension was granted..Considering the submissions, the Court at the outset looked at the provisions of Indian Evidence Act on the burden of proving someone is dead..After examining the provisions, the Court said they do not throw any light on the date on which a person can be presumed to be dead.“In other words, the doubt or dilemma that arises in cases of this nature is as to the date of death of the person in respect of whom the presumption is raised. The moment it is established that a person has not been heard of for 7 years, the presumption of death arises. Although the presumption under the Evidence Act is confined only to the factum of death, but is silent in respect of the actual date of death or presumed death.”.Looking at the facts of the case, the Court noted that the Court of Inquiry has considered Solanki missing since July 25, 2010. It also took into account Solanki’s parents' evidence that the Military Training Center informed them on October 27, 2010 about their son being missing, after which they had lodged a missing person report at police station Ponda in Goa.It also found that Solanki’s brother had stated in his deposition that they tried to search for him but did not find any information about his whereabouts.Thus, the Court concluded that it would have to be held that Solanki died on July 25, 2010, and modified the trial court rulings by issuing a declaration that he had died in 2010 and not 2020..Consequently, it also ordered that his parents would be entitled to all the benefits including GPF, gratuity and family pension as per the instructions of the Government of India.“If he was alive after 25.7.2010, there was no reason for him not to contact his immediate family members. It is not the case that Surendra Singh left the house in distress or he was under some disability which prevented him from returning home or even contacting his family members. Nor is it shown that Surendra Singh was missing in such circumstances or could be at such place wherefrom he could not even contact his parents or close family members,” the Court reasoned. .Advocate Nitin Singh Bhati represented the appellants.Advocate Himanshu Joshi represented the respondents.[Read Judgment]