1. Application to set aside ex-parte divorce decree under Order IX Rule 13, Code of Civil Procedure, following the death of the decree-holder husband. (Para 2 )
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1996 Supreme(SC) 1564
1996(7) Supreme 377
SUPREME COURT OF INDIA
B.P. Jeevan Reddy and K.S.
Paripoornan, JJ.
R. Lakshmi -Appellant
versus
K. Saraswathi Ammal -Respondent
Civil Appeal Nos. 12664-65 of 1996
(Arising out of SLP (C) Nos. 3096-97 of 1989)
Decided on 27-9-1996
Counsel for the Parties :
For the Appellant : Ms. Bina Gupta, Ms. T. Sudha and Ramesh Singh, Advocates.
Important Points
IMPORTANT POINT
Wife is competent to maintain application for setting aside ex-parte decree of divorce obtained by her husband but who died after obtaining the decree.
Wife is competent to maintain application for setting aside ex-parte decree of divorce obtained by her husband but who died after obtaining the decree.
Subject
Family Law - Divorce
Act Referred
Headnote
Hindu Marriage Act, 1955-Section 13-Ex-parte decree of divorce obtained by husband-Husband died-Wife on coming to know of ex-parte decree, applied for setting aside the decree-Wife is competent to maintain the application.
Held: We are of the opinion that the wife should be and is competent to maintain the application under Order IX Rule 13. Even though the husband is dead, yet the decree obtained by him is effective in law and determines the status of the appellant. If the appellant says that it is an ex-parte decree and ought to be set aside, her application has to be heard on merits. The decree of divorce determines her status as a wife apart from determining her rights in the properties of her deceased husband. This gives her sufficient locus stand; and right to contest the divorce proceedings even after the death of her husband. (Para 3)
Legal Category Hierarchy
Table of Contents
2. Whether an application to set aside an ex-parte divorce decree is maintainable after the death of the husband who obtained the decree. (Para 2 )
3. A divorce decree remains effective in law after the husband's death as it determines the wife's status and property rights, granting her locus standi to contest. (Para 3 )
4. A wife has locus standi to apply to set aside an ex-parte divorce decree under Order IX Rule 13, CPC, even after the husband's death. (Para 3 )
5. Appeal allowed; matter remitted to Trial Court for disposal on merits; interim protection granted regarding compassionate appointment. (Para 4 , 5 )
6. Can a wife apply to set aside an ex-parte divorce decree after the husband's death?
Yes, the wife is competent to maintain an application under Order IX Rule 13 of the Code of Civil Procedure because the decree remains effective in law and determines her legal status and property rights. (Para 3 )
7. Does the personal nature of a divorce remedy preclude setting aside a decree after the death of the spouse?
No. While divorce is a personal remedy, a decree already obtained determines the status of the parties and their respective rights, providing the surviving spouse sufficient locus standi to contest the decree's validity. (Para 3 )
ORDER
Though the respondent is served, no one appears for the respondent.
Leave granted.
2. The appellant is the wife, against whom her husband had obtained an ex-parte decree of divorce. After obtaining the decree, the husband died. The wife on coming to know of the ex-parte decree, applied for setting aside the decree of divorce under Order IX Rule 13 of the Code of Civil Procedure. The Trial Court dismissed the said application observing since the divorce is a personal remedy, it cannot be pursued after the death of the husband. On appeal, the Trial Court s view was reversed. But the Appellate Court s view has in turn been reversed by the High Court.
3. We are of the opinion that the wife should be and is competent to maintain the application under Order IX Rule 13. Even though the husband is dead, yet the decree obtained by him is effective in law and determines the status of the appellant. If the appellant says that it is an ex-parte decree and ought to be set aside, her application has to be heard on merits. The decree of divorce determines her status as a wife apart from determining her rights in the properties of her decreased husband. This gives her sufficient locus standi and right to contest the divorce proceedings even after the death of her husband.
4. Accordingly, the appeal is allowed and the matter is remitted to the Trial Court to dispose of the application filed by the appellant under Order IX Rule 13 on merits in accordance with law. No costs.
5. Ms. Bina Gupta says that the appellant has been provided a job in the Electricity Board on compassionate grounds on the basis that she is the wife of the deceased employee. Pending disposal of the divorce proceedings finally, it is directed that she will not be disturbed from the said post.
Appeal allowed.
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