1996 (10) TMI 496 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of the High Court's decision to set aside the ex parte divorce decree.
2. Whether the respondent was properly served with the divorce petition.
3. Whether the delay in filing the application to set aside the ex parte decree should be condoned.
4. Maintainability of the application under Order IX Rule 13 C.P.C. after the death of the petitioner-husband.
5. Legal consequences of the ex parte divorce decree on the respondent's rights and status.
6. Whether the divorce proceedings should continue after setting aside the ex parte decree.

Detailed Analysis:

1. Validity of the High Court's Decision to Set Aside the Ex Parte Divorce Decree
The High Court set aside the ex parte decree for divorce passed against the respondent by the learned Trial Judge. The High Court allowed the revision application on the ground that the respondent, an illiterate lady, would not have read the notice published in the newspaper about the divorce proceedings initiated by her husband. Consequently, the High Court found it fit to condone the delay in filing the miscellaneous application under Order IX Rule 13 C.P.C. and set aside the ex parte decree. The High Court also ordered the Hindu Marriage Petition to be restored to the file and directed the learned Trial Court to dispose of it in accordance with the law as expeditiously as possible.

2. Whether the Respondent was Properly Served with the Divorce Petition
The appellant contended that the respondent was duly served by ways of substituted service under Order V Rule 20. Despite the publication of notice of the pending Hindu Marriage Petition in a local newspaper, the respondent did not contest the proceedings. The High Court, however, found that the respondent, being an illiterate lady, could not have read the newspaper publication and thus had no knowledge about the divorce petition. The High Court also noted that no attempt was made to serve the respondent in the ordinary manner as required by Order V Rules 12, 15, and 17 C.P.C.

3. Whether the Delay in Filing the Application to Set Aside the Ex Parte Decree Should be Condoned
The High Court condoned the delay in filing the application for setting aside the ex parte decree, noting that the respondent had sufficient cause for the delay. The respondent claimed she only learned of the ex parte decree on 31.3.1990 and was not served with summons on the divorce petition filed by Basappa. The High Court found that the Trial Court had almost automatically granted the application for substituted service without taking steps for ordinary service. The High Court concluded that the respondent, being an illiterate lady, would not have known about the ex parte decree earlier and thus had sufficient cause for the delay.

4. Maintainability of the Application Under Order IX Rule 13 C.P.C. After the Death of the Petitioner-Husband
The appellant argued that the application under Order IX Rule 13 C.P.C. was not maintainable as the petitioner-husband, Basappa, had died before the respondent filed the application. The High Court did not address this contention as it was not raised before the Trial Court or the High Court. However, the Supreme Court considered this argument and found that the right to sue survives for the aggrieved spouse whose status and proprietary rights are adversely affected by the ex parte decree. The Court held that the proceedings for setting aside such a decree would not abate on the death of the petitioner-husband, and the application under Order IX Rule 13 C.P.C. was maintainable.

5. Legal Consequences of the Ex Parte Divorce Decree on the Respondent's Rights and Status
The Supreme Court noted that a decree of divorce has significant legal effects on the status and proprietary rights of the spouses. The decree dissolves the marriage, changes the status of the spouses, and affects their mutual rights of inheritance. The respondent would lose her proprietary rights in the husband's property and her right to be maintained out of her deceased husband's estate. The Court emphasized that the respondent should have the opportunity to challenge the ex parte decree to avoid these adverse legal consequences.

6. Whether the Divorce Proceedings Should Continue After Setting Aside the Ex Parte Decree
The Supreme Court held that once the ex parte decree is set aside, the original Hindu Marriage Petition would automatically stand restored on the file of the learned Trial Judge. However, since the petitioner-husband is no longer available to pursue the proceedings, the right to sue would not survive for the other heirs of the deceased husband. The Court concluded that the Hindu Marriage Petition would stand abated and disposed of as infructuous, as there is no marriage to be dissolved by any decree of divorce following the death of the husband.

Conclusion:
The Supreme Court upheld the High Court's decision to set aside the ex parte decree and condone the delay in filing the application under Order IX Rule 13 C.P.C. The Court found that the application was maintainable despite the death of the petitioner-husband and emphasized the significant legal consequences of the ex parte decree on the respondent's rights and status. The Court concluded that the Hindu Marriage Petition would stand abated and disposed of as infructuous.