Allowed

Vimala a.K, v. State of Kerala

Kerala HC19 Nov 2019WP(C)/12193/2019

Case brief

AI extract

What is this about?

In a writ petition filed by a wife seeking a death and heirship certificate for her husband who disappeared in 2008 at an offshore site in Qatar, the High Court of Kerala allowed the petition. Relying on Section 108 of the Indian Evidence Act regarding presumption of death after seven years of missing without news, the court directed the State and concerned officials to issue the certificates.

What did the court decide?

Direction to respondents 1 to 3 to issue death certificate and heirship certificate to the petitioner within the minimum period required.

Vimala a.K, Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941

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WP(C).No.12193 OF 2019(Y)

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PETITIONER:

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VIMALA A.K, AGED 52 YEARS WIFE OF LATE BALAKRISHNAN, ATHANIKUZHIYIL, VIMALA NIVAS, PALAYADUNADA POST, VATAKARA, PIN 673 521

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BY ADVS. SRI.MANJERI SUBIN SUNDER RAJ SRI.A.SANOOJ SMT.M.M.BABY

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RESPONDENTS:

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1 STATE OF KERALA, REP BY THE DISTRICT COLLECTOR, KOZHIKODE, CIVIL STATION, CALICUT, PIN 673 020

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2 THE TAHSILDAR, VATAKARA, VATAKARA THALUK, VATAKARA PIN 673 101

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3 THE VILLAGE OFFICER, PALAYADU NADA VILLAGE, P PALAYADUNADA, PIN 673 521

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4 THE CONSULAR OFFICER, EMBASSY OF INDIA, PO BOX 2788, DOHA-QUTAR, [email protected]

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WPC No.12193 of 2019

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5 UNION OF INDIA, REP. BY THE SECRETARY TO MINISTRY FOR FOREIGN AFFAIRS, GOVT. OF INDIA, NEW DELHI

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R4-5 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA BY GOVERNMENT PLEADER SMT. PRINCY XAVIER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC No.12193 of 2019

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P.B.SURESH KUMAR, J.

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W.P.(C) No.12193 of 2019

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Dated this the 19^th day of November, 2019

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J U D G M E N T

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The petitioner is the wife of one Balakrishnan who was a crane operator in an establishment at Qatar. It is stated by the petitioner that Balakrishnan had fallen into the sea on 13.11.2008 in the course of his employment on crash of the crane in which he was working and his whereabouts are not known thereafter. The case of the petitioner is that since the husband of the petitioner has not been heard of for more than 7 years by those who would naturally have heard of him, if he had been alive, he shall be presumed to have been dead. It is also the case of the petitioner that she is, therefore, entitled to the death certificate as also the heir ship certificate of her

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WPC No.12193 of 2019

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husband. It is alleged that the aforesaid certificates are not being issued to the petitioner and as a result, the petitioner is not able to receive the various benefits due to her on account of the death of her husband from the employer of her husband and from other sources. The petitioner, therefore, seeks appropriate directions in this regard, in the writ petition.

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A statement has been filed on behalf of the

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Consular Officer, Emabassy of India at Qatar and the Union of India, respondents 4 and 5 in the matter. The stand taken by respondents 4 and 5 in the statement is that Balakrishnan went missing on 13.11.2008 while working on a crane at an offshore site in Qatar and that the information provided by the Ministry of Foreign Affairs of Qatar is that the forensic team which investigated the case reported that it was not possible to conclusively identify the body recovered as that of the deceased as the same was decomposed and some parts were missing. It is also the stand of the aforesaid respondents that death certificates are usually issued by the Embassy based on

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WPC No.12193 of 2019

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the report of the local authorities and that it was since there was no conclusive report by the local authorities in the case of Balakrishnan that the Embassy did not issue the death certificate.

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Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned Central Government Counsel.

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It is evident from the statement filed by

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respondents 4 and 5 that Balakrishnan, the husband of the petitioner was found missing while working on a crane at an offshore site in Qatar from 13.11.2008. It is also seen from the statement that the Embassy of India at Qatar is unable to issue the death certificate as the local authorities have not confirmed the death of Balakrishnan. It is also evident from the statement that the local authorities are not confirming the death of Balakrishnan for want of conclusive evidence. Under Section 108 of the Indian Evidence Act, if a person has not been heard of for more than 7 years by those who would

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WPC No.12193 of 2019

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naturally have heard of him, if he had been alive, he can be presumed to have been dead. None of the respondents have a case that Balakrishnan, the husband of the petitioner has been heard of since 2008. Further, it is seen that the petitioner is moving from pillar to post for the last almost 11 years to obtain the basic documents which are needed to claim the benefits due to her from the employer of her deceased husband and others. In the circumstances, I am of the view that it is a fit case where a direction can be issued to the respondents concerned to issue death certificate and heir ship certificate concerning the husband of the petitioner based on the presumption under Section 108 of the Indian Evidence Act. Similar view is taken by this court in Indira v. Union of India [ILR 2005(3)Kerala 801] and in W.P.(C) No 8107 of 2010.

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In the result, the writ petition is allowed and respondents 1 to 3 are directed to issue death certificate and heir ship certificate to the petitioner in respect of her husband in accordance with law. This shall be done within the minimum

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WPC No.12193 of 2019

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period required for issuance of such certificates.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

WPC No.12193 of 2019

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE AADHAR CARD OF THE PETITIONER.

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EXHIBIT P2 TRUE COPY OF PASSPORT NO.E8339482 OF MISSING MAN ATHANI KUZHIYIL BALAKRISHNAN, DOB 08/10/1958, VADAKARA, ISSUED ON 18/03/2004 VALID UP TO 17/03/2014 BY PASSPORT OFFICE, KOZHIKODE.

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EXHIBIT P3 TRUE COMPUTER PRINTOUT COPY OF VISA INFORMATION (VISA NO.0420008174064) DATED 16/10/2008 ISSUED ROM MINISTRY OF INTERIOR, STATE OF QATAR RELATING TO BALAKRISHNAN ATHANIKUZHIYIL.

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EXHIBIT P4 TRUE COPY OF HELICOPTER PASS OF BALAKRISHNAN ISSUED BY MAERSK OIL, QATAR AND ID CARD ISSUED TO BALAKRISHNAN BY OCB,OFFSHORE INTERNATIONAL MANAGEMENT PVT. LTD.

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EXHIBIT P5 TRUE COPY OF THE LETTER DATED NOVEMBER 2008 FROM SRI.E AHAMED, MINISTER OF STATE FOR EXTERNAL AFFAIRS, GOI, TO ADV. P SATHEEDEVI, MP REGARDING MISSING OF BALAKRISHNAN.

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EXHIBIT P6 TRUE COPY OF LETTER DATED 02/03/2009 FROM ASST.CONSULAR OFFICER, EMBASSY OF INDIA, DOHA, QATAR.

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WPC No.12193 of 2019

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EXHIBIT P7 TRUE COPY OF TWO CHEQUES BY HABIB QATAR INTERNATIONAL EXCHANGE LTD. FOR INR.2,12,743/- AND FOR INR 14,464/ISSUED TO VIMALA, A/C NO.16669 IN FEDERAL BANK, VATAKARA BRANCH. EXHIBIT P8 TRUE COPY OF LETTER FROM FRIENDS OF BALAKRISHNAN SENDING CHEQUE FOR RS.2,12,020/- COLLECTED BY THEM FOR BALA AND HIS FAMILY SENT TO MRS. BALAKRISHNAN.

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EXHIBIT P9 TRUE COPY OF LETTER DATED 14/11/2016 FROM DISTRICT COLLECTOR, KOZHIKODE TO THE PVT. SECRETARY TO CHIEF MINISTER OF KERALA TO INCLUDE THE MATTER CONCERNING MISSING OF BALAKRISHNAN TO GET HIS DEATH CERTIFICATE, COMPENSATION ETC.;

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EXHIBIT P10 TRUE COPY OF LATTER DATED 22/10/2016 FROM THE TRAHSILDAR, VATAKARA, TO THE DISTRICT COLLECTOR, KOZHIKODE REGARDING BALAKRISHNAN.

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EXHIBIT P11 TRUE COPY OF THE RECEIPT NO. CA (PG) NO.71/17 DATED 25/01/2017 FROM THE RDO, TO VIMALA A K.

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EXHIBIT P12 TRUE COPY OF THE LETTER 04/04/2017 TO VIMALA FROM THE DISTRICT COLLECTOR, KOZHIKODE TO THE PVT. SEC, TO THE CHIEF MINISTER, KERALA TO PLACE THE MATTER OF MISSING OF BALAKRISHNAN IN THE CM'S JANASAMPARKAPARIPADI.

WPC No.12193 of 2019

EXHIBIT P13

TRUE COPY OF T6HE LAWYER NOTICE DATED 01/09/2018 BY PETITIONER'S COUNSEL TO THE 1ST RESPONDENT, KOZHIKODE DISTRICT COLLECTOR, WITH POSTAL RECEIPT AND ACKNOWLEDGMENT CARD.

Vimala a.K, v. State of Kerala

Case brief

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Vimala a.K, v. State of Kerala

Case brief

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