Patna High Court
Smt. Rita Dey vs Chandan Kumar Dey on 14 October, 1998
Equivalent citations: 1999(1)BLJR585
JUDGMENT S.K. Chattopadhaya, J.
1. An interesting question has arisen in this case as to whether after decree of divorce is passed, ex-parte or bipartite against either of the spouses, the right to sue survive for the spouse against whom such decree has been passed by the Court even after the death of either of the spouses.
2. Mr. Laik and Mr. Banerjee, learned Counsel appearing for the respective parties, have frankly admitted that they could not lay hand on any decision of this Court, either for or against the proposition. However, whereas Mr. Banerjee, learned Counsel appearing for the appellant, has strongly relied on the decision in the case of Vadalasetti Sanjayamma v. Badalasetti Nagamma, , for his contention that even after the death of either of the spouses, during pendency of the appeal against a judgment of dissolution or divorce, the right to sue/survives and thus, legal heirs of the deceased spouse can be substituted, Mr. Laik, Counsel for the deceased-respondent, relying on a judgment of the Bombay High Court In the case of Suhas V. Manohar Pande v. Nanohar Shamrao Pande. reported In , urged that a judgment of divorce being a judgment of personem, after the death of the husband, as In the present case, the appeal filed by the wife automatically abates.
3. Before considering the points involved, the facts of the case may be granted in short. The deceased-husband got a decree for divorce against the appellant-wife by filing a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') and ground for divorce was that the wife voluntarily deserted the husband and stayed elsewhere for more than two years and finally she declined to stay with the husband. The trial Court, accepting the allegations of the husband, granted the judgment of divorce on 13.8.87, which has been impugned by the appellant-wife in the instant appeal by filing the same In the year, 1988. During pendency of the appeal, by filing a petition, one Nand Kumar Dey, brother of the deceased-husband, informed this Court about the death of sole respondent. This petition was placed for orders and on that occasion Mr. Laik, the counsel for the sole-respondent urged before the court to order dismissed of the instant appeal as the same has been abated on the death of one of the spouses namely, the respondent-husband.
4. In the case of Vadalasetti (supra), the point for consideration was as to whether after the death of one of the spouses any legal representative of the deceased can be lmpleaded for continuing the proceeding under Section 13 of the Act and as to whether a petition under Order XXII, Rule 4 of the Code of Civil Procedure, is applicable to the proceeding under the Act. A learned Single Bench of the Andhra Pradesh High Court, noticing various decisions of different High Courts as well as of the Supreme Court, has held that the Judgment dissolving the marriage is a judgment in rem and will not merely involve the personal status of the wife, but would involve her property rights and as such, legal heirs of the deceased spouse can be substituted.
5. The Division Bench of the Bombay High Court in the case of Suhas Manohar Panda (supra), in my view, has not differed with the decision of the Andhra Pradesh High Court, inasmuch as the said High Court has also held that the provisions of Order XXII of the Code will also be applicable in a proceeding under the Act. However, their Lordships were of the view that if the right to continue the appeal does not survive and the sole respondent having died then the appeal as a natural consequence must abatement has to be dismissed and no fresh duit could be brought on the same cause of action. Thus, this decision of the Division Bench also does not support the contention raised by Mr. Laik.
6. In the case of Ramsarup Das v. Rameshwar Das , the question arose as to whether In a case where the plaintiff suing to establish his personal right entitling him to possession of the property, on the death of the sole plaintiff the suit abates as a whole or not. The Division Bench of this Court, after interpreting the provisions of Order XXII, Rules 1 and 11 of the Code, has held that on the death of the plaintiff, in such type of suit, the suit becomes in fructuous. However, this decision of the Patna High Court was overruled by the Supreme Court in the case of Krishna Singh v. Mathwa Ahir reported In AIR 1986 SC 707.
7. In this connection, we may usefully refer to the decision of the Apex Court in the case of Maharani Kusumakumar v. Kusumakumari Jadeja, , in which relying on the report of the Law Commission relating to amendment of the Act in the year 1976, their Lordships held that a petition filed even after the death of the other spouse for declaration of nullity of marriage, in maintainable. It was suggested in the Law Commission report that there is no general rule that where one of the parties to a divorce suit is dead, the suit abates, so that no further proceeding can be taken in it and that it is unhelpful to refer to abatement at all. One of the situations in which the further proceedings will continue, is the nature of the further proceedings sought to be taken.
8. However, the point of controversy raised on behalf of the parties in the instant appeal has been set at rest by the Supreme Court recently in the case of Smt. Yallawan v. Smt. Shantavva . As in the present case in the case before the Supreme Court the husband got a decree of divorce against the wife on the ground that she deserted him for a continuous period of not less than two years. This type of petition could have been filed by either of the spouses and to that extent in view of their Lordships, it is certainly a personal cause of action based of one or more matrimonial misconduct alleged in the petition against the erring spouse. If in such proceeding either of the spouses expire before any decree comes to be passed then the personal cause of action would Le. with the person. However, such civil proceeding should not abate only if right to sue survives after the death of one or more of the parties to the proceedings as laid down by Order XXII, Rule 11 of the Code. Thus, it has been held that If during the pendency of the petition for divorce either of the spouses expires, the cause of action being personal to both of them the right to sue would not survive. But where after the decree of divorce is passed exparte or bi-parte against the other spouse, the right to sue would survive for the spouse against whom/such decree has been passed, their Lordships noticing various provisions of the Act as well as provisions of the Hindu Adoption and Maintenance Act, 1956 and other allied Acts have held as follows:
It must, therefore, be held that when a divorce decree is challenged by the aggrieved spouse in proceedings whether by way of appeal or by way of application under Order IX. Rule 13 of CPC for setting aside the exparte 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 appeal is filed against the same by the aggrieved spouse or application is made under Order IX, Rule 13 by the aggrieved spouse for getting such an exparte decree of divorce set aside. Similarly the right to sue would also survive even if the other spouse dies pending such appeal or application under Order IX, Rule 13 C.P.C. 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.
9. According to their Lordships, save and except the personal cause of action which dies with the deceased on the principle of "actto personal is moritur cum personal, i.e." personal cause or action dies with the person, all the rest of cause of action which have impact on proprietary rights and ascot legal status of the portion cannot be said to have died with such a person.
10. In the background of this authoritative pronouncement of their Lordships, In my view, the contention of Sri Naik that after the death of the respondent-husband the appeal has abated and there is no scope or filing any substitution petition by the appellant, is not sustainable. Thus, I hold that even after the death of sole-respondent, Chandan Kumar Dey, the appeal does not abate and the appellant is at liberty to file a petition under Order XXII of the Code for substituting, the legal heirs of her deceased-husband, if so advised. The substitution petition must be filed within three weeks from today. However, it is needless to say that the substituted heirs, on their appearance, may raise any objection as they feel necessary.