Kimti Lal vs Smt. Indu Kundra
1999 Latest Caselaw 499 Del

ORDER

Cyriac Joseph, J.

1. This revision petition arises from an order passed by the trial court in divorce petition No. 530/88- titled Shri Kimti Lal Vs. Smt. Indu Kundra.

2. The divorce petition was filed by the husband Shri Kimti Lal against his wife Smt. Indu Kundra on the ground of cruelty. During the pendency of the divorce petition Shri Kimti Lal died. When the divorce petition came up before the trial court on 20.5.1998 learned counsel for the petitioner/husband submitted that the petitioner had expired. Hence the trial court dismissed the divorce petition observing that as the petitioner had expired the cause of action did not survive. A legal representative of late Shri Kimti Lal has filed this revision petition challenging the order of the trial court dismissing the divorce petition.

3. According to the revision petitioner the trial court ought to have continued with the proceedings in the divorce petition notwithstanding the death of the petitioner/husband. In support of this contention learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in Smt. Yallawwa Vs. Smt. Shantavva (JT 1996 (9) S.C. 218). I have considered the said judgment and I find that the said judgment does not in any way support the case of the petitioner. In my view the said judgment is against the petitioner.

4. In the above mentioned case before the Supreme Court the respondent Smt. Shantavva was the wife of one Shri Basappa and the appellant Smt. Yallawwa was the mother of the Shri Basappa. Shri Basappa filed a petition for obtaining divorce against his wife Smt. Shantavva on the ground of desertion. The said petition was moved by Shri Basappa under Section 13(1)(i-b) of the Hindu Marriage Act, 1955. The said divorce petition came to be decreed ex parte against the respondent on 15.12.1989. Shri Basappa died on 26.5.1990. Thereafter Smt. Shantavva filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte divorce decree passed on 15.12.1989. According to Smt. Shantavva she had come to know about the ex parte divorce decree only on 31.3.1990 and she had not been served with the summons in the divorce petition filed by Shri Basappa. She also filed an application for condensation of delay in filing the application for setting aside the ex parte decree. The learned trial court held that the delay was not properly explained by Smt. Shantavva and that she was aware of the divorce proceedings much prior to the date on which she alleged to have come to know about the divorce decree. The trial court dismissed the application under Order IX Rule 13 of the Code of Civil Procedure as time barred. Thereupon Smt. Shantavva filed a revision petition in the High Court. The learned Single Judge of the High Court allowed the said revision petition on the ground that Smt. Shantavva being an illiterate lady would not have read the notice published in the newspaper about the pendency of the divorce petition taken out by her husband Shri Basappa against her. The learned Single Judge set aside the ex parte divorce decree and also ordered that the divorce petition be restored to the file. The trial court was directed to take up the matter and dispose it of in accordance with law as expeditiously as possible.

The said order of the learned Single Judge of the High Court was challenged in the Supreme Court by Smt. Yellawwa, mother of Shri Basappa, claiming that she was the legal heir of her deceased son, Smt. Yellawwa had opposed the application under Order IX Rule 13 of the Code of Civil Procedure filed by Smt. Shantavva wife of Shri Basappa. One of the contentions raised by the appellant before the Supreme Court was that the respondent's application under Order IX Rule 13 of the Code of Civil Procedure was not maintainable as Shri Basappa who obtained the decree of divorce against the respondent was already dead by the time the respondent filed the application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. According to the appellant the proceedings by way of the said application had stood abated as divorce proceedings represented a personal cause of action both for the husband as well as for the wife and consequently the right to sue had not survived for challenging the ex parte divorce decree after the death of the decree holder husband. However the respondent contended that once an ex parte order was passed against the wife on the ground of desertion, apart from the stigma which would be attached to the respondent by the said decree, she would loss proprietary right in the husband's property. In case of demise of the husband in the absence of such a decree of divorce she would be entitled to inherit the deceased husband's property as his widow, being a heir of first class along with the appellant mother of the deceased. According to the respondent whom an ex parte divorce decree has such pernicious consequences against the wife, it could not be said that the proceedings for setting aside such an ex parte decree would abate on the death of the petitioner/husband after he had obtained such an ex parte decree.

5. After considering the rival contentions of the parties the Hon'ble Supreme Court held that when a divorce decree is challenged by the aggrieved spouse. Whether by way of appeal or by way of application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree of divorce, right to sue survives to the aggrieved surviving spouse if the other spouse having obtained such decree dies after the decree and before the appeal is filed against the same by the aggrieved spouse or the application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the decree is moved by the aggrieved spouse. The Hon'ble Supreme Court further hold that the right to sue would also survive even if the other spouse died pending such appeal or application under Order IX Rule 13 of the Code of Civil Procedure. In either case proceedings can be continued against the legal heirs of the deceased spouse who may be interested in supporting the decree of divorce passed against the aggrieved spouse. At the same time the Hon'ble Supreme Court pointed out that a petition for divorce can be moved either by the husband or by the wife as the case may be and to that extent it is certainly a personal cause of action based on one or more matrimonial misconducts alleged in that petition against the erring spouse. The Court also held that in such proceedings, before any decree was passed if either of the spouses expired then the personal cause of action would die with the person.

6. It is clear from the above mentioned judgment of the Hon'ble Supreme Court that if the husband or the wife expires before passing the decree in a divorce petition the cause of action does not survive and the proceedings in the divorce petition cannot continue. It may be noted that after upholding the judgment of the High Court by which the ex parte divorce decree was set aside and the divorce petition was restored to the file, the Hon'ble Supreme Court held that the divorce petition filed by Shri Basappa would be treated to have abated and would stand disposed of as infructuous since the petitioner in the said divorce petition had expired and the right to sue would not survive for the other heirs of the deceased husband to get any decree of divorce against the wife. For convenience paragraph 10 of the judgment of the Hon'ble Supreme Court is abstracted hereunder:-

"Now remains the question as to whether the proceedings for divorce as restored by the High Court by its impugned order and required to be proceeded further or the curtain must be dropped on the said proceedings. As the ex parte decree is found to be rightly set aside by the High Court, the marriage petition would automatically stand restored on the file of the learned Trial Judge at the stage prior to that at which they stood when the proceedings got intercepted by the ex parte decree. Once that happens it becomes obvious that the original petitioner seeking decree of divorce against the wife being no longer available to pursue the proceedings now the proceedings will certainly assume the character of a personal cause of action for the deceased husband and there being no decree culminating into any crystallized rights and obligations of either spouse, the said proceedings would obviously stand abated on the ground that right to sue would not survive for the other heirs of the deceased husband to get any decree of divorce against the wife as the marriage tie has already stood dissolved by the death of the husband. No action, therefore, survives for the court to snap such a non-existing tie otherwise it would be like trying to slay the slain. As this stage there remains no marriage to be dissolved by any decree of divorce. Consequently, now that the ex parte decree is set aside, no useful purpose will be served by directing the Trial Court to proceed with Hindu Marriage petition by restoring it to its file. The Hindu Marriage Petition No. 25 of 1989 moved by Shri Basappa, the husband of the respondent on the file of the Court of Civil Judge, Gadag will treated to have abated and shall stand disposed of as infructuous. The appeal is disposed of accordingly. In the facts and circumstances of the case, there will be no order as to costs."

7. In the light of the discussion above I hold that the divorce petition was rightly dismissed by the learned trial court and that there is no merit in this revision petition. The revision petition is dismissed. There will be no order as to costs.