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Madhya Pradesh High Court · body

2005 DIGILAW 533 (MP)

Madan Mohan Sharma v. Shakuntla Sharma

2005-04-19

P.K.JAISWAL, S.S.JHA

body2005
ORDER Jha, J. -- 1. Heard on I.A. 3585/04 for substitution of legal representatives of the appellant. This application is opposed by the respondent on the ground that after the death of appellant Madan Mohan Shanna, right to sue does not survive and the appeal has abated. 2. Facts of the case are that a petition for divorce was filed by the appellant before the Family Court. Decree for divorce was granted. After the decree for divorce was granted, an application under Order IX Rule 13, CPC for setting aside ex parte decree was filed by the respondent. Family Court allowed the application and set aside the decree for divorce. Order by which decree has been set aside has been challenged in this appeal. 3. Question arising in this appeal is whether order allowing application under Order IX Rule 13, CPC is appealable under section 19 of the Family Courts Act. 4. It may be mentioned that originally appeal was preferred under Order XLIII Rule 1, CPC. Office has raised an objection that the appeal as filed is not maintainable under Order XLIII, CPC. Thereafter, the appeal is converted into one under section 19 of the Family Courts Act (hereinafter, referred to as the "Act"). At this stage, there is no decree for divorce between the parties and the application for divorce filed by the appellant is pending before the Family Court. 5. Counsel for the appellant has referred two judgments of the apex Court in the cases of Yallawwa v. Shantavva ( AIR 1997 SC 35 ) and R. Lakshmi v. K. Saraswathi Ammal [ (1996) 6 SCC 371 ], wherein it is held that substitution in such cases is permissible. Counsel for the respondent submitted that both the cases referred to by the counsel for the appellant have no application in the present set of facts of the case. The appeal has abated and it be dismissed as abated. 6. In the case of Yallawwa (supra) it is held that after the decree for divorce is obtained by the petitioner husband against his wife, then the wife has right to file appeal. Such appeal does not abate on the death of husband whether said death took place prior to filing of the appeal or pending the appeal. 6. In the case of Yallawwa (supra) it is held that after the decree for divorce is obtained by the petitioner husband against his wife, then the wife has right to file appeal. Such appeal does not abate on the death of husband whether said death took place prior to filing of the appeal or pending the appeal. Similarly if the ex parte decree of divorce is obtained against wife and thereafter husband dies, aggrieved wife can maintain application under. Order IX Rule 13, CPC even though husband might have died prior to moving of that application or during the pendeney of such application. In all such cases, other legal heirs of the deceased husband can be brought on record as opponents or respondents in such proceedings by the aggrieved spouse who wants such decree to be set aside and when the other heirs of the deceased husband would naturally be interested in getting such decree confirmed either in appeal or under Order IX Rule 13, CPC. It is held in para 7 as under : "Under these circumstances, if the aggrieved spouse who suffers from such legal effects of the adverse decree against him or her is told off the gates of the appellate proceedings or proceedings for setting aside such ex parte decree, the concerned spouse would suffer serious legal damage and injury without getting any opportunity to get such a decree set aside on legally permissible grounds. Consequently, it may be held that once the petition under section 13 of the Hindu Marriage Act results into any decree of divorce either ex parte or bipartite then the concerned aggrieved spouse who suffers from such pernicious legal effects can legitimately try to get them reserved through the assistance of the Court. In such an exercise, all other legal heirs of deceased spouse who are interested in getting such a decree maintained can be joined as necessary parties. Section 13(1) of the Hindu Marriage Act can obviously come in the way of such proceedings being maintained against the legal heirs of the decree-holder spouse." xxx xxx xxx xxx "If a decree of divorce on these grounds whether ex parte or bipartite is not permitted to be challenged by the aggrieved spouse, it would deprive the aggrieved spouse of an opportunity of getting such grounds re-examined by the competent Court. It cannot, therefore be said that after a decree of divorce is passed against a spouse whether ex parte or bipartite such aggrieved spouse cannot prefer an appeal against such a decree or cannot move for getting ex parte divorce decree set aside under Order IX Rule 13, CPC. Such proceedings would not abate only because the petitioner who has obtained such decree dies after obtaining such a decree. The cause of action in such a case would survive qua the estate of the deceased spouse in the hands of his or her heirs or legal representatives. Consequently, in such appellate proceedings or proceedings under Order IX Rule 13, CPC, other heirs of the deceased spouse could be joined as opposite parties as they would be interested in urging that the surviving spouse against whom such decree is passed remains a divorce and is not treated to be a widow or widower of the deceased original petitioner so that she or he may not share with other heirs the property of deceased spouse." In para 8, it is held that it must, therefore, be held that after decree of divorce is obtained by the petitioning husband against wife, she has right to file appeal and such appeal does not abate on account of death of husband, whether such death takes place prior to filing of the appeal or pending appeal. Similarly, if ex parte decree of divorce is obtained against the wife and thereafter if the husband dies, aggrieved wife can maintain an application under Order IX Rule 13, CPC even though the husband might have died prior to the moving of that application or during the pendency of such application. In all such cases, other legal heirs of the deceased husband can be brought on record as opponents or respondents in such proceedings by the aggrieved spouse who wants such decree to be set aside and when the other heirs of the deceased husband would naturally be interested in getting such decree confirmed either in appeal or under Order IX Rule 13, CPC. The second alternative contention as canvassed by the learned counsel for the appellant, therefore, stands rejected. Reasoning of the Court is that after the death of the husband, if decree for divorce is set aside then the wife has right in the estate of late husband. The second alternative contention as canvassed by the learned counsel for the appellant, therefore, stands rejected. Reasoning of the Court is that after the death of the husband, if decree for divorce is set aside then the wife has right in the estate of late husband. However, she will be deprived of her right in the event of decree of divorce is confirmed. 7. In the case of R. Lakshmi (supra), it is held that when ex parte decree is passed in favour of the husband against wife, thereafter husband dies, wife's application for setting aside decree is maintainable; right of the wife to appeal even after the death of husband is not affected. 8. In the present case, application for setting aside ex parte decree is allowed and at present there is no decree for divorce. In the circumstances, next question will be whether this appeal will survive as there is no decree of divorce. 9. Counsel for the appellant submitted that said decree of divorce was passed with the mutual consent of the parties under section 13(B) of the Hindu Marriage Act, therefore, the Family Court has no jurisdiction to set aside the decree as there was no ex parte decree. It was contended by the deceased husband before the Family Court that the wife was not living with him from the year 1984 she is unable to bear a child. Respondent has, therefore agreed for mutual divorce. She signed the application and the decree for divorce was passed on the mutual consent of the parties. Wife had full knowledge of the decree for divorce. Family Court has examined the original record and has found that the divorce petition was filed by the counsel for the husband Shri H.V. Bhargava, Advocate. Parties in person never appeared before the Court till the date of decree. Case was fixed for recording ex parte evidence on 2.3.1984 and ex parte evidence was recorded on 12.3.1984 and decree was passed. Thus the decree was passed behind the back of wife. Therefore, said decree was not passed under section 13(B) of the Hindu Marriage Act. Family Court has held that the decree was passed behind the back of wife, as such, the decree was set aside. 10. As discussed above, the appeal does not survive any more. Thus the decree was passed behind the back of wife. Therefore, said decree was not passed under section 13(B) of the Hindu Marriage Act. Family Court has held that the decree was passed behind the back of wife, as such, the decree was set aside. 10. As discussed above, the appeal does not survive any more. There is no decree for divorce between the husband and the wife, right has accrued to wife as there is no decree for divorce. Therefore, right to sue does not survive upon the legal representatives of the husband after death of the husband. 11. In the result, application for substitution of legal representatives of the appellant I.A. 3585/04 is rejected and the appeal is dismissed as abated. .....................