1. This suit is filed by a wife against her husband for a declaration that the defendant, not having been heard of since February 1937, into be deemed to be dead. When the plaint was presented to me in Chambers, as leave under Clause 12 of the Letters Patent had to be obtained, it appeared to me that it was doubtful whether such a suit could lie. Thereafter, counsel appeared before me and requested me to admit the plaint and have it numbered for the purpose of enabling me to determine in the suit whether such a suit lies before issuing any process. I acceded to that request and the matter has now come on before me for argument as to whether such a suit is competent.
2. It appears that a similar suit was filed in this Court being suit No. 1998 of 1945 and in that suit a decree was passed by my learned brother Coyajee J. in the following words :
Declare that the defendant not having been heard of since the day of he is deemed to be dead.
It appears that my learned brother's attention was not drawn to the question whether such a suit was competent and that question was not considered or disposed of by my learned brother.
3. The facts stated in the plaint are that the plaintiff was married to the defendant, a British subject of English domicile, who was at the time of the marriage employed in Bombay. He has, however, not been heard of since February 1937, and although the plaintiff had made several attempts to find out his whereabouts, she has not succeeded in doing so. The plaintiff, therefore, avers in para 7 of the plaint.
that in the premises reasonable grounds exist to suppose that the defendant is dead and the plaintiff believes that the defendant is dead.
4. I may state that there is no precedent in England for such a suit; but it appears that a provision which can be resorted to under similar circumstances was incorporated in the Matrimonial Causes Act, 1937, Sub-section (J) of Section 8 whereof is in these terms:
Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the Court to have it presumed that the other party is dead and to have the marriage dissolved, and the Court, if satisfied that such reasonable grounds exist, may make a decree of presumption of death and of dissolution of marriage.
Sub-section (2) of the same section provides that a presumption of death would arise after a period of seven years' absence. In Latey on Divorce (80th Edition) at p. 473 will be found a form of petition for presumption of death and dissolution. The person not heard of for over seven years is the respondent to the petition and it ends with a prayer for a decree for presumption of death and dissolution of marriage. In the notes under this form it is stated that the notice should be endorsed as usual, an application being made later to dispense with service or for substituted service according to the circumstances. Under this procedure, therefore, it is open to a wife, similarly placed as the plaintiff in the present suit, to present a petition for presumption of death. Apparently the provision was made by the English Act because no such declaration could, up to that date, be obtained by any process known to the Courts.
5. Of course, I must point out that in England where executors and administrators are required to swear as to the date of death of the deceased and the death is a mere matter of presumption, a petition lies for an order giving leave to swear to the death of a person who has not been heard of for over seven years. Under Rule 659 of the High Court Rules the practice and procedure followed by the High Court of Justice in England is followed by our High Court in its testamentary and intestate jurisdiction, in so far as it may not be inconsistent with the rules made by our High Court. Following the English practice, this High Court has in exercise of its testamentary jurisdiction made similar orders for the purposes of testamentary matters.
6. The first difficulty that is raised by the present plaint is that it is a suit for a declaration and it cannot be entertained unless it falls within the scope of Section 42 of the Specific Relief Act. That section inter alia provides that any person entitled to any legal character may institute a suit against any person denying or interested to deny his title to such character, for a declaration that he is so entitled. The declaration sought in this suit is not a declaration of such a kind. The plaintiff does not claim to be entitled to any legal character nor can it be said that there is any person denying or interested to deny such character, because the plaintiff herself states that the plaintiff believes that the defendant is dead. Section 42, in my opinion, postulates the existence of a defendant who denies or is interested to deny the legal character. The possibility of his existence is, in my opinion, not sufficient. Secondly, apart from any statutory provision such as is made in the Matrimonial Causes Act, 1937, in England, I find it difficult to entertain a suit against a person who the plaintiff avers is dead and to proceed, as the plaintiff must seek leave to proceed hereafter, to serve the defendant by substituted service. I am therefore of the opinion that a suit of this nature is not competent.
7. I may point out that a person placed as the plaintiff is in this case may be subject to a great deal of hardship as the law exists at present, because there is no procedure that I know of whereby she can obtain the relief she claims. But that is a matter for the Legislature to look into. It may be that if their attention were drawn to the hardship involved, they may be induced to enact a provision similar to the one contained in Section 8(2) of the Matrimonial Causes Act, 1937. Of course, in the present case, even that provision would not be sufficient for the purpose of the plaintiff because being the wife of a British subject domiciled in England she has the domicile of her husband and is not subject to the matrimonial jurisdiction of this Court; but it appears to me that it would be open to her in this case to resort to the provisions of the Matrimonial Causes Act, by taking proper proceedings in England.
8. The suit is therefore dismissed.