Saraswathi Ammal vs Lakshmi

V. Ratnam, J.—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.

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. 30 of 1983 Sub Court, Kumbakonam, was filed by Ramanathan against the respondent in these civil

revision petitions u/s 13(1)(b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) praying for a decree of dovorce 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. 66 and 67 of 1985

under Order 22, Rule 4 and Order 9, Rule 13, C.P.C. respectively in O.P. 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 partc decree of divorce obtained by him

in O.P. 30 of 1983 on 24-10-1983. The petitioner herein opposed these applications on the ground that the remedy of divorce sought for by

deceased Ramanathan in O.P. 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. 66 of 1985 holding thai the relief sought for by the deceased Ramanathan in O.P. 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. 66 of 1985, the learned Subordinate Judge also dismissed I.A. 67 of 1985. Against the dismissal of I.A. 66 and 67 of 1985,

in the manner aforesaid, the respondent therein preferred C.M.A. 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. 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 Ramanalhan in order to thrash out her rights as a wife. In this view, the learned District Judge

allowed C.M.A. 31 of 1985 and impleaded the petitioner herein as a party in O.P. 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. 32 of 1985 and remanded I.A. 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.

31 and 32of 1985 that is questioned by the petitioner, in these civil revision petitions.

Learned counsel for [he petitioner first contended that the, relief of divorce prayed for by deceased Ramanathan in O.P. 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. 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 of divorce is that the husband and wife

should be both alive in order to enable one spouse to initiate the proceedings against the other and seek appropriate relief and in the absence of

one due to death, Ihe 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 AIR 1945 PC 188 and Isher Singh and Others Vs. Mst. Bhan Kaur, . On the other hand, learned counsel

for the respondent submitted that the death of the husband of the respondent would nol 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 initialed by her deceased husband against the representative of her husband''s estate. To support this argument, learned

counsel invited attention to the decisions reported in Thulasi Ammal by mother and guardian Kannu Ammal Vs. Gowri Ammal and Others, and

Ponnuthayee Ammal Vs. Kamakshi Ammal, .

The main ground upon which deceased Ramanathan instituted proceedings in O.P. 30 of 1983 Sub Court, Kumbakonam, praying for a decree

of 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 forsaking 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 therefor. 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 subsistence 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 best be regarded as an utter disregard of the obligations arising out of Ihe 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. 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 Ramanalhan against the respondent herein with which the petitioner, mother-in-law had nothing whatever todo.

Prom this, it is clear that very basis for the initiation of proceedings in O.P. 30 of 1983 was purely personal 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 proceedings for divorce in O.P. 30 of 1983, Sub Court, Kumbakonam, initialed by deceased Ramanathan was purely

personal to him founded on the subsistence of the marriage between him and the respondent herein and on his death the proceedings at whatever

stage they were had abated.

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 Rananathan on 3-6-1984, the status of the

respondent got unalterably fixed as a divorcee. The queslion of status of this 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 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 was 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 intialed 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 irrevocably untied 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 ease, the matrimonial knot did not any longer subsist and thereafter there

cannot be a decree ol 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 parle 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 dale of death of Ramanathan, for which there is no basis whatever in law. Further when the

marital knot had been untied by the decree of divorce, there is no basis whatever for assuming that the marriage had subsisted even thereafler in

order to confer the stalus of a widow on the respondent herein on the death of Ramanalhan. On the fads of this case, it is seen that the respondeni

was only a divorcee from the dale 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 to the factual situation obtaining in this case.

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 by mother and guardian Kannu Ammal Vs. Gowri Ammal and Others, and

Ponnuthayee Ammal Vs. Kamakshi Ammal, , it becomes necessary to make a brief reference to them. Those 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 by mother and guardian Kannu Ammal

Vs. Gowri Ammal and Others, , 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 Vs. Kamakshi Ammal, , also deals with the similar question and purports to follow the decision in

Thulasi Ammal by mother and guardian Kannu Ammal Vs. Gowri Ammal and Others, , 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. 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 any one else, as it dies with him, and there cannot be a

flesh and blood resurrection of a dead cause of action under the guise of the status of the respondent.

Learned counsel for the petitioner, referring to Sections 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 u/s 28(1) of the Act, and an application under Order 9, Rule 13, C.P.C. to set

aside the ex parte decree was not maintainable. Reliance was placed in this connection upon the decision in Anjan Kumar Kataki Vs. Smt.

Minakshi Sarma, . On the other hand, the 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 an ex parte decree, u/s 21 of the Act, the proceedings under the Act would be regulated by the provisions of

the Civil Procedure Code, and that would lake in not only the procedural but also substantive part of it. Reliance was also placed by the learned

counsel upon the decision in Iravva Vs. Shivappa Shiddalingappa Angadi, .

u/s 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 stales 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 u/s 28(1) of the Act, learned counsel for the petitioner was emboldened to contend that the remedy of the

respondent was only to appeal and not an application to set aside the ex purte decree. There is no provision either in the Act or in the Rules

framed thereunder as to the selling 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. I n the absence, therefore, of provisions in the Act and also the Rules framed thereunder u/s 21 of the Act, the

proeeedings under the Act stand regulated by the provisions of the Civil Procedure Code. In Section 21 of the Act, there is no indication that

proeedural part of the CPC 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 CPC an application for setting aside the ex parte decree passed under the Act

would lie under Order 9, Rule 13, C.P.C. It would be relevant in this connection to refer to the decision of the Supreme Court reported in Guda

Vijayalakshmi Vs. Guda Ramachandra Sekhara Sastry, . In that case, in an application filed u/s 25, C.P.C., 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,

C.P.C. 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 the Act shall be regulated, as far as may be, by the

Code of Civil Procedure."" 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 as 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 arhether it is procedural of 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, C.P.C. 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 teamed counsel for the petitioner in Anjan Kumar Kataki Vs. Smt. Minakshi Sarma, 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 Iravva Vs. Shivappa Shiddalingappa Angadi, 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, C.P.C. 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, C.P.C. 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.

Consequently, the civil revision petitions are allowed and the judgment and decrees of the court below in C.M.A. 31 and 32 of 1985 are set

aside and the order in LA. 66 and 67 of 1985 in O.P. 30 of 1983 passed by the Sub-Court, Kumbakonam, will stand restored. There will be no

order as to costs in these civil revision petitions.