Executive authorities under the Births and Deaths Act lack jurisdiction to declare death based on statutory presumption.

The Petitioner, wife of Mr. Jivan Kumar Singh (a Delhi Police Sub-Inspector), sought a direction for the issuance of a death certificate for her husband who went missing on 08.06.2005

Despite a missing complaint filed in 2005 and subsequent police investigations, his whereabouts remained unknown for over 20 years

The Petitioner applied to the Sub-Divisional Magistrate (SDM) under Section 13(3) of the Registration of Births and Deaths Act, 1969, for delayed registration of death

The SDM, via an RTI response, declined the request, stating that while a presumption of death exists under Section 108 of the Evidence Act, a formal declaration must be obtained from a competent Civil Court

The Petitioner challenged this inaction, seeking registration based on the statutory presumption of death after seven years

Section 13(3) of the Registration of Births and Deaths Act, 1969, and Rule 9(3) of the Delhi Rules, 1999, which govern the delayed registration of births and deaths upon the order of a Magistrate after verifying "correctness"

Section 108 of the Indian Evidence Act, 1872 (and Section 111 of Bharatiya Sakshya Adhiniyam, 2023), which shifts the burden of proof to the person affirming a man is alive if he has not been heard of for seven years

Reliance was placed on LIC of India v. Anuradha (2004), establishing that the presumption under Section 108 is evidentiary and pertains only to the factum of death, not the date or time, and typically arises in judicial proceedings before a "Court" as defined in Section 3 of the Evidence Act

The court reasoned that the SDM functions in an administrative capacity under Section 13(3) of the Act, intended for registering events that have already occurred, rather than adjudicating civil status

Since Section 1 of the Evidence Act limits the application of evidentiary presumptions to "judicial proceedings," the SDM—not acting as a "Court" in a lis inter partes—cannot unilaterally invoke Section 108 to declare a person dead

However, the court observed that where a person has been missing for nearly 21 years (three times the statutory period), strict adherence to procedural rigours (civil suits) causes extreme hardship and "legal suspension" for the family

While upholding the SDM's legal stand that they lack inherent adjudicatory power, the High Court invoked its equitable jurisdiction under Article 226 to prevent summum jus, summa injuria (extreme law resulting in extreme injustice)

The Court directed the SDM to publish a public notice in English and Hindi newspapers inviting objections to the presumption of Mr. Kumar's death. If no objections are received within 30 days, the SDM is directed to pass an order under Rule 9(3) and instruct the Registrar to issue the death certificate. If objections arise, the Petitioner must approach a Civil Court.