Madras High Court
Saraswathi Ammal vs Lakshmi on 23 December, 1988
Equivalent citations: (1989)1MLJ166
ORDER Ratnam, J.
1. In these civil Revision Petitions, an interesting question as to whether proceedings for obtaining a decree for divorce instituted by the husband against his wife can be continued by the wife after the death of her husband against her mother-in-law, arises.
2. The facts are few and simple and are undisputed. One Ramanathan, the son of the petitioner in these Civil Revision Petitions, married the respondent herein on 17.2.1975. O.P. No. 30 of 1983 Sub Court, Kumbakonam, was filed by Ramanathan against the respondent in these Civil Revision Petitions under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') praying for a decree of divorce on the ground that the respondent had intentionally and without any justification deserted him. On 24.10.1983 Ramanathan obtained an ex parte decree of divorce against the respondent herein and subsequently, he died on 3-6-1984. Thereupon, the respondent herein filed I.A.Nos. 66 and 67 of 1985 under Order 22, Rule 4 and Order 9, Rule 13, Code of Civil Procedure respectively in O.P. No. 30 of 1983 to implead her mother-in-law, the petitioner in these Civil Revision Petitions, as the legal representative of her deceased husband Ramanathan and to set aside the ex parte decree of divorce obtained by him in O.P. No. 30 of 1983 on 24-10-1983. The petitioner herein opposed those applications on the ground that the remedy of divorce sought for by deceased Ramanathan in O.P. No. 30 of 1983 was a personal remedy arising between the parties to the marriage and could not be prosecuted against the estate of deceased Ramanathan, represented by his mother the petitioner herein. The learned Subordinate Judge accepted this stand of the petitioner and dismissed I.A. No. 66 of 1985 holding that the relief sought for by deceased Ramanathan in O.P. No. 30 of 1983 was purely personal to him and on his death, the respondent cannot prosecute the proceeding against the estate, represented by his legal representative. Consequent upon the dismissal of I.A.Nos. 66 of 1985 the learned Subordinate Judge also dismissed I.A. No. 67 of 1985. Against the dismissal of I.A.Nos. 66 and 67 of 1985 in the manner aforesaid, the respondent herein preferred C.M.A.Nos. 31 and 32 of 1985 to the District Court, West Thanjavur at Thanjavur. The learned District Judge was of the view that the status of the respondent, whether she is the wife of Ramanathan or whether she is a divorcee, is involved and for a decision on that aspect it was unnecessary that her husband should be alive and it was, therefore, open to the respondent to continue the proceedings in O.P. No. 30 of 1983, Sub Court, Kumbakonam, initiated by her husband by bringing on record the petitioner herein, her mother-in-law as the legal representative of deceased Ramanathan in order to thrash out her rights as a wife. In this view, the learned District Judge allowed C.M.A. No. 31 of 1985 and impleaded the petitioner herein as a party to O.P. No. 30 of 1983 in order to enable the respondent to proceed further therein. Consequent upon the order so passed, the learned District Judge allowed C.M.A. No. 32 of 1985 and remanded I.A. No. 67 of 1985 to the Sub Court, Kumbakonam, for disposal according to law. It is the correctness of the order so passed by the learned District Judge in C.M.A.Nos. 31 and 32 of 1985 that is questioned by the petitioner in these Civil Revision Petitions.
3. Learned Counsel for the Petitioner first contended that the relief of divorce prayed for by deceased Ramanathan in O.P. No. 30 of 1983 on the ground of desertion arose purely out of the relationship of husband and wife that then subsisted between him and the respondent herein and was purely personal between the husband and the wife and on the death of the husband, the right to continue the proceedings against the legal representative of the deceased husband did not survive, as the action commenced by deceased Ramanathan was purely a personal action. In order to emphasise the purely personal nature of the action in O.P. No. 30 of 1983, learned Counsel also invited attention to Sections 9 and 13 of the Act to contend that the condition precedent for obtaining the reliefs of restitution of conjugal rights or a decree or divorce is that the husband and wife should be both alive in order to enable one spouse to initiate proceedings against the other and seek appropriate relief and in the absence of one due to death, the other surviving spouse cannot initiate any action at all or obtain those reliefs. Reliance was also placed by the learned Counsel upon the decisions in Marsh v. Marsh A.I.R. 1945 P.C.188 and Bhan Kaur v. Isher Singh . On the other hand, learned Counsel for the respondent submitted that the death of the husband of the respondent, would not in any manner alter the situation as to the respondent, her status as a widow was very important in that she could claim rights to the properties of her deceased husband and, therefore she could prosecute the further proceedings initiated by her deceased husband against the representative of her husband's estate. To support this arguments, learned Counsel invited attention to the decisions reported in Thulasi Ammal v. Gowri Ammal and Ponnuthayee Ammal v. Kamakshi Ammal,(1978)1 M.L.J. 446.
4. The main ground upon which deceased Ramanathan instituted proceedings in O.P. No. 30 of 1983, Sub Court, Kumbakonam, praying for a decree or divorce against his wife, the respondent herein was her desertion of the matrimonial home. Broadly stated desertion is the breach of an obligation of the married status in that there is an intentional and permanent for saking and abandonment of one spouse by the other without the consent of the other and without just or reasonable cause. One of the basic marital obligations between spouses is that each spouse should give the other his or her company and should not either forsake or abandon the other without justification therefore. When there is a breach of such an obligation by either of the spouses, it is really in the nature of a personal injury inflicted by the erring spouse on the other in relation to the rights, duties and obligations in the matrimonial home. The rights and obligations in the matrimonial home between the spouses stem out of the union of the husband and the wife for their joint lives. If during the subsistance of the marriage between the husband and the wife, any one of them commits a breach of the obligations arising out of the union, it could at best be regarded as an utter disregard of the obligations arising out of the marital status and an injury as well to the party who is affected by the breach of the obligations committed by the other. Viewed thus, O.P. No. 30 of 1983 filed by deceased Ramanathan has to be considered as a complaint to the Court about the breach of one of the obligations of the marital status by the respondent in that she had intentionally and permanently abandoned him without his consent and without any justification. That complaint was purely a personal complaint of Ramanathan against the respondent herein with which the petitioner, mother-in-law, had nothing whatever to do. From this, it is clear that the very basis for the initiation of proceedings in O.P. No. 30 of 1983 was purely personnel to Ramanathan and when he died, there was no question of its survival in the estate of deceased Ramanathan either for his benefit or for the benefit of the respondent herein. It is necessary to remember that deceased Ramanathan was not seeking the enforcement of any right, which, on his death, would vest in his heir at law or the representative of his estate. There could, therefore, be no transmission of his interest in favour of the petitioner on his death. It may be that the desertion attributed to the respondent might have continued to remain as a wrong perpetrated by her, but after the death of Ramanathan, who is really the person injured by the conduct of the respondent in relation to the rights and obligations in the matrimonial home none else can complain of it. In other words the proceeding for divorce in O.P. No. 30 of 1983 Sub Court, Kumbakonam, initiated by deceased Ramanathan was purely personal to him founded on the subsistance of the marriage between him and the respondent herein and on his death, the proceedings at whatever stage they were had abated.
5. Earlier, it has been noticed how on 24-10-1983 deceased Ramanathan had obtained an ex parte decree of divorce against the respondent herein. That decree had the effect of dissolving the marriage from the moment it was pronounced and the marriage was at an end. On the passing of the decree of divorce, though ex parte, the respondent became a divorcee. On the death of Ramanathan on 3-6-84, the status of the respondent got unalterably fixed as a divorcee. The question of status of the respondent is only incidental and not the object of the proceedings commenced by deceased Ramanathan. The possibility of securing some collateral advantage based on status would not affect the real situation which obtained on the facts of this case by the ex parte decree of divorce as well as the demise of Ramanathan. The Court below was of the view that as the status of the Respondent as a wife or a widow was involved that would justify her bringing on record the petitioner herein as the representative of her deceased husband. This view is plainly erroneous, for as pointed out earlier, the incidental resulting status was not the object of the proceedings initiated by Ramanathan nor even the securing of any collateral advantage thereby. On the passing of the ex parte decree of divorce, the marriage between the respondent and deceased Ramanathan stood dissolved and on the death of Ramanathan, even on the footing that there had been no prior dissolution of marriage the matrimonial knot was once and for all irrecovably united on 3-6-1984. It is doubtful whether even in cases where the marriage has been dissolved by death there is a power in the Court to declare that it continued for some other reasons. It is necessary to remember that a man after his death can no more be divorced or secure a decree of divorce than he can be considered to be married or even condemned to death. On the death of the husband, in this case, the matrimonial knot did not any longer subsist and thereafter there cannot be a decree of divorce dissolving the marriage. The so-called question of status on the basis of which the lower appellate Court was inclined to implead the petitioner as a legal representative does not carry any conviction. In this case on the obtaining of the decree of divorce ex parte the respondent became a divorcee and that status was unalterably fixed to her by the subsequent demise of Ramanathan. It is difficult to understand how and by what process the respondent, who was a divorcee, on 24-10-1983, when the ex parte decree of divorce was passed and on 3-6-1984, when Ramanathan died could claim the status of a widow. This would assume that despite the decree of divorce dissolving the marriage, the marriage had continued to subsist till the date of death of Ramanathan for which there is no basis whatever in law. Further when the marital knot had been united by the decree of divorce, there is no basis whatever for assuming that the marriage had subsisted even thereafter in order to confer the status of a widow on the respondent herein on the death of Ramanathan. On the facts of this case, it is seen that the respondent was only a divorcee from the date of passing of the decree and also on the date of death of her husband and she cannot lay any claim as the widow of Ramanathan unless she can resort to some statutory provisions enabling her to do so. The Court below was, therefore in error in holding that the question of the status of the respondent would make some difference of the factual situation obtaining in this case.
6. It would be unnecessary in view of the aforesaid discussion to refer to the decisions cited at the Bar. Since the Court below has placed considerable reliance upon the decisions in Thulasi Ammal v. Gowri Ammal and Ponnuthayee Ammal v. Kamakshi Ammal (1978)1 M.L.J. 448, it becomes necessary to make a brief reference to them. These cases did not deal with a proceeding for divorce at all, but were concerned with the effect of declaration of the invalidity of the marriage on the legitimacy of children and in that context the question arose whether such a declaration of invalidity of the marriage can be obtained after the lifetime of one of the spouses. That question does not at all arise on the facts of this case. Apart from that, it is seen from the decision in Thulasi Ammal v. Gowri Ammal that the Division Bench has made it clear at page 230 that it prefers not to express any opinion upon this question. The other decision in Ponnuthayee Ammal v. Kamakshi Ammal , which had left the question open. Those decisions cannot, therefore, have any application whatever to this case and the Court below was in error in relying upon those decisions to permit the respondent herein to bring the petitioner, her mother in-law, on record as the legal representative of her deceased husband. As pointed out earlier, the cause of action for the institution of the proceedings by deceased Ramanathan in O.P. No. 30 of 1983, Sub Court, Kumbakonam, against the respondent herein was purely personal to him and on his death, that cause of action did not survive to anyone else, as it died with him, and there cannot be flesh and blood resurrection of a dead cause of action under the guise of the status of the respondent.
7. Learned Counsel for the petitioner, referring to Section 21 and 28 of the Act next contended that against the ex parte decree of divorce passed on 24.10.1983, the respondent should have preferred an appeal under Section 28(1) of the Act and an application under Order 9, Rule 13, Code of Civil Procedure, to set aside the ex parte decree was not maintainable. Reliance was placed in this connection upon the decision in Anjan Kumar v. Minakshi (. On the other hand, learned Counsel for the respondent submitted that as there is no provision in the Act as well as the Rules framed thereunder for setting aside on ex parte decree, under Section 21 of the Act, the proceedings under the Act would be regulated by the provisions of the Code of Civil Procedure but also substantive part of it. Reliance was also placed by the learned Counsel upon the decision in Iravya v. Shivappa .
8. Under Section 21 of the Act it has been provided that subject to the other provisions of the Act and also to the Rules framed thereunder, all proceedings under this Act shall be regulated as far as may be, by the code of Civil Procedure. Section 28(1) of the Act states that all decrees made by the Court in any proceeding under this Act shall be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeal ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction. Encouraged by the provision so made under Section 28(1) of the Act, learned Counsel for the petitioner was emboldened to contend that the remedy of the respondent was only an appeal and not an application to set aside the ex parte decree. There is no provision either in the Act or in the Rules framed thereunder as to the setting aside of an ex parte decree passed under its provisions. It is also not disputed that the Rules framed by this Court do not provide for it. In the absence, therefore, of provisions in the Act and also the Rules framed thereunder under Section 21 of the Act the proceedings under the Act stand regulated by the provisions of the code of Civil Procedure. In Section 21 of the Act, there is no indication that procedural part of the Code of Civil Procedure alone would be applicable and not the substantive part of it. Prima facie, it would appear that in the absence of any restriction to the applicability of the substantive provisions of the Code of Civil Procedure an application for setting aside the ex-parte decree passed under the Act would lie under Order 9, Rule 13, Code of Civil Procedure. It would be relevant in this connection to refer to the decision of the Supreme Court reported in Vijayalakshmi v. G. Ramachandra Sekhara Sastry . In that case, in an application filed under Section 25 of the Code of Civil Procedure before the Supreme Court for transfer of rival proceedings under the Act from the Court in Rajasthan to the Court in Andhra Pradesh, a preliminary objection was raised that Section 25 of the Code of Civil Procedure would not apply to proceedings under the Act and, therefore, the Court had no power to transfer the proceedings instituted by the husband in the Court at Rajasthan to the Court at Andhra Pradesh. This contention was repelled by the Supreme Court at page 1145 with the following observations.
...In the first place it is difficult to accept the contention that the substantive provision contained in Section 25, C.P.C. is excluded by reasons of Section 21 of the Hindu Marriage Act, 1955. Section 21 of the Hindu Marriage Act merely Provides: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as maybe by the Code of Civil Procedure, 1908." In terms Section 21 does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code as far may be shall apply to all proceedings under the Act and the phrase "as far as may be "means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the Character of substantive law are excluded by implication as not such implication can be read into Section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act.
Earlier, it has been noticed that there are no provisions at all either in the Act or in the Rules framed thereunder for setting aside an ex parte decree passed under the provisions of the Act and in view of the principles laid down by the Supreme Court referred to above, it follows that the Substantive provisions of Order 9, Rule 13, Code of Civil Procedure, will apply, as there is no other provision either in the Act or in the Rules framed thereunder inconsistent with that. In the decision relied on by the learned Counsel for the petitioner in Anjan Kumar v. Minakshi , Section 21 of the Act had not been interpreted in the light of the decision of the Supreme Court and therefore, that decision cannot be accepted as laying down the correct law. In so far as the decision in Iravya v. Shivappa is concerned, it is seen that even though there is no reference to the decision of the Supreme Court referred to already, it has been held that an application under Order 9, Rule 13, Code of Civil Procedure, is maintainable and to this extent, the decision is quite right. However, the decision also proceeds to hold that the right to set aside an ex parte decree would be available under Order 9, Rule 13, Code of Civil Procedure, to the wife even after the death of her husband and this, as already pointed out in the course of the earlier discussion, cannot be done as, after the death of the husband, nothing survives and, therefore to this extent, the decision cannot be accepted, as laying down the correct law.
9. Consequently, the Civil Revision Petitions are allowed and the judgment and decrees of the Court below in C.M.A.Nos. 31 and 32 of 1985 are set aside and the order in I.A. No. 66 and 67 of 1985 in O.P. No. 30 of 1983 passed by the Sub Court, Kumbakonam, will stand restored. There will be no order as to costs in these Civil Revision Petition.