9911796707
TMI Blog1996 (10) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... adag in Karnatake State. The said application was moved by Basappa under Section 13(1) (i-b) of the Hindu Marriage Act, 1955. The said divorce petition came to be decreed ex parte against the respondent on 15.12.1989. It is the case of the appellant, mother-in-law of the respondent, that her son Basappa having obtained the decree of divorce filed a suit being O.S No.42 of 1990 in the court of the Munsif at Ron for permanent injunction against the respondent contending that through she was no longer the wife of Basappa in view of the decree of divorce yet she was unnecessarily interfering with his possession and enjoyment of the suit property. It is the further case of the appellant that on 1.3.1990 the respondent was served with the summons in O.S. No.42 of 1990 but remained absent. Said Basappa, husband of the respondent, died on 26.5.1990. It is thereafter that the respondent filed miscellaneous application being Miscellaneous case No.102 of 1990 under Order IX Rule 13 C.P.C. in the Court of Civil Judge at Gadag for setting aside the ex parte divorce decree passed on 15.12.1989 It was the case of the respondent that she has come to know about the ex parte divorce decree only on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f notice of pendency of the Hindu Marriage Petition in the newspaper having circulation in the local area, the respondent had not cared to content the proceedings and, therefore, the ex parte decree was rightly passed by the Trial Court. It was further contended that the respondent had knowledge of the ex parte decree at least form the day on which she was served with the summons in O.S. No.42 of 1990 on 1.3.1990 and still she filed miscellaneous application as late as on 3.7.1990 and she had made out no case for condoning the delay in filing the said application and, therefore, it was rightly rejected by the Trail Court and that the order has been wrongly set aside by the High Court. In the alternative, the learned counsel submitted that in any case the respondents application under Order IX rule 13 C.P.C. was not maintainable as deceased Basappa who had obtained the divorce decree against the respondent was already dead by the time the respondent filed the said application under Order IX Rule 13 C.P.C. for setting aside the ex parte decree. Hence the proceedings by way of said application had stood abated as divorce proceedings represented a personal cause of action both for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of concerned, it was neither canvassed before the High Court nor before the Trial Court, the said contention deserves to be rejected even on merits. The said contention has no force for the simple reason that once and ex parte decree is passed against the wife on the ground of desertion apart from the stigma which would be attached to the respondent by the said decree, she would lose proprietary right in the husband s property. In case of demise of the husband in the absence of such decree of divorce she would be entitles to inherit the deceased husband s property as his widow being heir of first class along with the appellant, mother of the deceased. Consequently, when an ex parte divorce decree has such pernicious consequences against the wife, it could not be said that proceedings for setting aside such an ex parte decree would abate on the death of the original petitioner-husband after he had obtained such an ex parte decree. We have carefully considered the aforesaid rival contentions. In order to appreciate the main grievance of the appellant against the impugned order of the High Court, it is necessary to note at the outset that the respondent was seeking to get the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. In the present case, it appears that almost automatically the procedure of substituted service was restored to. It is also clear from the record of the case that respondent being an illiterate lady would not have known about passing of the ex parte decree earlier otherwise she could have moved for setting aside the decree on any day prior to the day on which she filed this application. Sufficient cause was therefore, made out for condoning the delay in filing the application for setting aside the ex parte decree. The High Court, in our opinion, has rightly code to this conclusion which calls for no interference under Article 136 of the Constitution, when substantial justice had been done to the parties and opportunity has been given to the wife to content the divorce petition which had terminated against her without giving any hearing to her. That takes use to the consideration of the alternative contention canvassed by the learned counsel for the appellant. It is true that this contention was not canvassed either before the Trial Court of before the High Court. However, as this contention touches the maintainability of the application , we have thought it fit to hear the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ex-wife. As a result of such a decree of divorce the marriage tie is snapped. Both of them become free to marry again as laid down by Section 15 of the Hindu Marriage Act. Not only that after such a decree when the spouses have ceased to be husband and wife and become ex-husband and ex-wife, proprietary right of both the spouses also get affected. As per Section 8 of the Hindu Succession Act, if a male Hindu dies intestate, his widow would be entitled to inherit his property being a relative specified in class 1 of the Schedule. Similarly, if the wife dies leaving behind her any property, as per Section 15 of the Hindu Succession Act, the property of the female Hindu shall devolve according to the riles set out in Section 16 - firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband. Thus if a female Hindu dies leaving behind her children and husband, the husband also becomes entitled to inherit her property as first class heir. Consequently, because of a divorce decree when the spouses do not remain husband and wife, the mutual rights of inheritance in each other s property on the death of either of them got extinguishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed one objection in connection with such proceedings. He submitted that if such an action survives and the challenge to a decree ex parte or bipartite for divorce is found to be maintainable at the instance of the aggrieved spouse against whom the decree has been passed then persons who are non-spouses will have go be joined in the litigation and this would go counter to Section 13 of the Hindu Marriage Act. This difficulty is more imaginary than real. Once a divorce decree is passed., the stage of launching any petition under Section 13(1) dies bot survive. It is true that Section 13 of the Hindu Marriage Act lays sown that marriage whether solemnized before or after the commencement of the Act may be dissolved by a decree of divorce on the grounds mentioned therein on a petition presented by either the husband or the wife. Thus, initially when such petition is to be presented, the person who presents such petition must be either wife or husband and the other party would be the other spouse. But once these proceedings are initiated by the concerned aggrieved spouse, the trial then proceeds further. It is of course true that pending such trial if either of the spouses expires th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rably of unsound mind, or has been suffering continuously or intermittently from mental disorder; or has been suffering from a virulent and incurable form of leprosy; or has been suffering from venereal disease in a communicable form; or has renounced the world by entering any religious order or had not been heard of as being alive for a period of seven years or more. These grounds to say the lease, to found established, against the offending spouse would be serious matrimonial misconducts or incapabilities and such a spouse will go with a stigma for the rest of his or her life which will have serious pernicious consequences not only social but also legal, as we have noted earlier. It a decree of divorce on these grounds whether ex parte or bipartite is not permitted to be challenges by the aggrieved spouse, it wold 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt had taken the view which is canvassed by the learned counsel for the appellant. It has been observed by the learned Judge that where on application by husband alleging that his wife deserted him intentionally and without any justification a decree of divorce was passed ex parte and the husband died subsequently on passing of the decree, the wife could not seek to set aside ex parte decree thereafter by impleading the legal representatives of the deceased husband. The proceedings for divorce initiated by deceased husband was purely personal to him founded on the subsistence of the marriage between him and his wife and on death the proceedings at whatever stage they were stood abated. When the husband alleged that wife deserted him without any justification that complaint was purely a personal complaint of husband against his wife with which the husband s legal representatives had nothing whatever to do. The very basis for the initiation of proceedings for divorce was purely personal to husband and when he died, there was no question of its survival in the estate of deceased husband either for his benefit or for the benefit of wife. The deceased husband was not seeking the enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal status and property rights, it is desirable that the party aggrieved by the decree of the trial court must have the opportunity to have the findings reversed and this opportunity must be assured irrespective of the death of the respondent. For coming to the aforesaid conclusion, the learned Judge had relied upon the earlier decision of the Division Bench of the High Court in the case of Suhas Manohar Panda vs. Manohar Shamrao Pande (A.I.R. 1971 Bombay 183) and the decision of the Division Bench of the Andhra Pradesh High Court in the case of Verma Sunanda vs. Vempa Venkata Subbarao (A.I.R. 1957 Andhra Pradesh 424). It must, therefore, be held that after a decree of divorce is obtained by the petitioning husband against his wife she has right to file an appeal and such appeal does not abate on account of the death of the respondent husband whether such death takes place prior to the filing of appeal or pending the appeal. Similarly, if an ex parte decree of divorce is obtained against the wife and thereafter if the husband dies, the aggrieved wife can maintain an application under Order IX Rule 13 C.P.C., even though the husband might have died prior to the moving of that appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
