Section 494 of IPC does not extend to any person, if such husband or wife, shall have been continuously absent from such person for the space of seven years, and shall not heard of by such person as being alive within that time provided that the person contracting such subsequent marriage shall, before such marriage take place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. Question Can a person remarry without moving to family court if the spouse is absconding for more than 7 years.
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Has missing complaint been filed with police
2Under Section 108 of the Indian Evidence Act, 1872, a missing individual for over seven years is assumed dead
3) you have to approach the civil court by filing a civil suit seeking a declaration that the said person is dead since his whereabouts are known for the past seven years.
4) then you can remarry
No. It is not a case of absconding. If spouse is not heard for seven years then a declaration to this effect is required from court by filing suit for declaration
If he is absconding and declared deed and spouse has filed a complaint on that basis then she can get divorce on that ground from court
- If a Hindu male marries another woman during the existence of his first wife, he shall be liable under Section 494 of the Indian Penal Code, 1860.
- Hence, even the spouse is absconding for more than 7 years , then also the person cannot do second marriage without getting a legal divorce from the spouse , and the said second marriage will be invalid
- The person can file a divorce petition on the ground of separation before the family court for getting divorce ,and if the said spouse is not traceable then the person can file a declaration suit before the family court for getting divorce.
First, a 'missing person' complaint needs to be lodged with the police followed by a newspaper advertisement. After the lapse of 7 years, a 'non-traceable' certificate has to be obtained from the police. Even though the missing person is presumed to be dead legally, the family court has to be approached to grant permission to remarry based on the evidence presented.
If the spouse is absconding for more than 7 years without having made any contact and the whereabouts are unknown, the other spouse can obtain the death certificate of the missing person and then such a spouse can remarry.
The missing person is to be declared civil dead b y an order of court suit for declaration filed by the person making this complaint.
It is essential that a complaint with the concerned police to have been lodged which will be an evidence to prove that so and so person has been reported missing for so many years.
Without the declaration by a judgment of a court of law about the civil dead, the remarriage by the spouse would be considered as an act of bigamy, punishable under criminal law
Dear Client,
Has a missing complaint been lodged with the police?
According to Section 108 of the Indian Evidence Act, 1872, an individual who has been missing for over seven years is presumed dead.
To proceed, you must approach the civil court by initiating a civil suit, seeking a declaration that the said person is deceased, given that their whereabouts have been unknown for the past seven years.
Once the court declares the person as deceased, you will be eligible to remarry.
