Orissa High Court
Tribeni Mohapatra vs Sub-Collector on 24 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22951 of 2018
(Through Hybrid mode)
Tribeni Mohapatra .... Petitioner
-versus-
Sub-Collector, Subarnapur and .... Opposite Parties
others
Advocates appeared in this case:
For petitioner : Mr. Manoj Kumar Das, Advocate
Mr. S. Rath, Advocate
Mr. S. K. Rout, Advocate
Mr. Sangeneria, Advocate
(Amicus Curie)
For opposite parties : Mr. A. K. Sharma, AGA
CORAM: JUSTICE ARINDAM SINHA
JUDGMENT
24.01.2023
1. Mr. Das, learned advocate appears on behalf of petitioner and
submits, his client has not been granted legal heir certificate in spite
of her being widow of the deceased. He draws attention to order dated
31st October, 2015, made in the criminal proceeding initiated by his
client under section 125 in Code of Criminal Procedure, praying for
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interim maintenance. The family Court found, admittedly his client is
married wife of the since deceased.
2. Mr. Sharma, learned advocate, Additional Government
Advocate appears on behalf of State and submits with reference to
impugned order dated 24th September, 2016, the Revenue Officer
gave reasons relying on report of the Revenue Inspector saying, inter
alia, petitioner had absconded and got married to another person. He
relies on clause-(b) in note under rule 3 of Odisha Miscellaneous
Certificates Rules, 2017, published in Odisha Gazette Extra Ordinary
on 17th April, 2017 providing, inter alia, in disputed cases applicants
may be advised to approach civil Court.
3. Mr. Sangeneria, learned advocate present in Court is
appointed Amicus Curiae. He submits, the Supreme Court in
Yallawwa v. Shantavva, reported in AIR 1997 SC 35 had said that
ex-parte divorce decree obtained against the wife and thereafter the
husband having died, would not prevent the aggrieved wife for filing
application to set it aside.
4. Mr. Das taking cue from Amicus Curiae, relies on view taken
by a learned single judge of the Delhi High Court in Kimti Lal v.
WP(C) no.22951 of 2018
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Indu Kundra, reported in AIR 1999 Delhi 325, wherein paragraph
10 in Yallawwa (supra) was relied upon. Paragraph 10 from
Yallawwa (supra) is reproduced below.
"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. At this stage there remains no
marriage to be dissolved by any decree of divorce.
WP(C) no.22951 of 2018
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Consequently, now the ex parte decree is set aside, no
useful purpose will be served by directing the Trial Court
to proceed with the 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 be 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."
(emphasis supplied)
5. Mr. Sharma points out that private opposite party no.4,
mother of the deceased, has not been properly noticed. Noting says
that address on the postal article was not sufficient. Court strikes out
name of private opposite party no.4, as neither necessary nor proper
party for adjudication of the writ petition.
6. Rule 3 in order XXII of Code of Civil Procedure provides,
inter alia, for situation where a sole plaintiff dies and the right to sue
survives. The Court on an application made, shall cause the legal
representative(s) of the deceased plaintiff, to be made a party and
shall proceed with the suit. In this case, mother of the deceased
husband is a legal representative. However, she cannot apply to be
added as party in the divorce suit, to obtain divorce from her
WP(C) no.22951 of 2018
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daughter-in-law. In other words, the right to sue of deceased husband
did not survive on his death. This position stood declared by the
Supreme Court in saying that original petitioner seeking decree of
divorce against the wife, being no longer available to pursue the
proceeding, it will certainly assume the character of a personal cause
of action for the deceased husband and there being no decree
culminating into crystallized rights and obligations of either spouse,
the said proceeding would obviously stand abated on the ground that
right to sue would not survive for the other heirs of the deceased
husband. Sub-rule (1) in rule 3 of order XXII is reproduced below for
appreciating law declared by Yallawwa (supra).
"3. Procedure in case of death of one of several plaintiffs
or of sole plaintiff.--(1) Where one of two or more
plaintiffs dies and the right to sue does not survive to the
surviving plaintiff or plaintiffs alone, or a sole plaintiff or
sole surviving plaintiff dies and the right to sue survives,
the Court, on an application made in that behalf, shall
cause the legal representative of the deceased plaintiff to
be made a party and shall proceed with the suit."
(emphasis supplied)
7. As noticed and aforesaid, petitioner had obtained interim
maintenance. The direction was made in consideration of her husband
WP(C) no.22951 of 2018
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drawing pension of Rs.15,000/- (fifteen thousand) per month. Her
husband is no more. Hence, the direction too cannot be enforced
against any other. On the other hand, the divorce proceeding must
abate. The consequence is that petitioner remains wife and widow of
the deceased.
8. Petitioner will produce this order before the appropriate
authority, along with fresh application, for issuance of legal heir
certificate. The authority is directed to consider the application in
light of this judgment and either issue legal heir certificate including
petitioner's name or give some other reason(s) for not being able to
do so. This must be done within four weeks of communication.
9. Court appreciates assistance rendered by Amicus Curiae.
10. The writ petition is allowed and disposed of.
(Arindam Sinha)
Judge
Prasant
WP(C) no.22951 of 2018
