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SUPREME COURT OF INDIA
N.P. SINGH AND S.B. MAJMUDAR, JJ.
Smt. Yallawwa Appellant
VERSUS
Smt. Shantavva, Respondent.
Civil Appeal No. 9852 of 1996, D/- 8-10-1996.
Constitution of India – Article 136 – Civil Procedure Code, 1908 – Order IX, Rule 13 – Hindu Adoption and Maintenance Act, 1956 – Section 9 – Constitution of India – Article 136 – Appellant has brought in challenge by special leave, an order passed by the learned Single Judge of the High Court of Karnataka allowing the revision application moved by the respondent – High Court had set aside the ex parte decree for divorce passed against the opponent by the learned Trial Judge – In order to appreciate the grievance of the appellant, who is alleged to be the ex-mother-in-law of the respondent, a few facts leading to these proceedings are needed to be noted at the outset – Respondent was the married wife of one Basappa – Appellant is the mother of said Basappa – Respondents husband, Basappa, filed a petition for obtaining divorce against the respondent on the ground of desertion –Held, Now remains the question as to whether the proceedings for divorce as restored by the High Court by its impugned order and required to be proceeded further or the curtain must be dropped on the said proceedings – As the ex parte decree is found to be rightly set aside by the High Court, the marriage petition would automatically stand restored on the file of the learned Trial Judge at the stage prior to that at which they stood when the proceedings got intercepted by the ex parte decree – Once that happens it becomes obvious that the original petitioner seeking decree of divorce against the wife being no longer available to pursue the proceedings now, the proceedings will certainly assume the character of a personal cause of action for the deceased-husband and there being no decree culminating into any crystallised rights and obligations of either spouse, the said proceedings would obviously stand abated on the ground that right to sue would not survive for the other heirs of the deceased-husband to get any decree of divorce against the wife as the marriage tie has already stood dissolved by the death of the husband – Order accordingly.
Key Points: - The High Court set aside an ex parte divorce decree and restored the Hindu Marriage petition; the judgment discusses whether restored proceedings should proceed or abate due to death of the husband and the ensuing personal vs. proprietary rights. (!) (!) (!) - The ruling explains that once a divorce decree is issued, the marriage is dissolved, altering status and proprietary rights, and questions whether such rights survive for heirs to challenge or maintain the decree. (!) (!) - It is held that the right to challenge/seek to set aside a divorce decree can survive against the deceased spouse’s estate, allowing heirs to participate in appeals or proceedings under Order IX, Rule 13, C.P.C. in appropriate circumstances. (!) (!) (!) - The decision notes that proceedings for abatement depend on whether the aggrieved party’s cause of action is personal or attached to property rights, with distinctions between actio personalis moritur cum persona and other survivals. (!) (!) - The judgment ultimately treats the restored proceedings as abating where no crystallised rights remain due to death of the decree-holder and the marriage is dissolved. (!) - The judgment references the permissibility of joining legal heirs as necessary parties where the surviving aggrieved spouse seeks to challenge the decree. (!)
Judgement
S. B. MAJMUDAR, J:- The appellant has brought in challenge by special leave under Article 136 of the Constitution, an order passed by the learned Single Judge of the High Court of Karnataka allowing the revision application moved by the respondent. The High Court had set aside the ex parte decree for divorce passed against the opponent by the learned Trial Judge.
2. In order to appreciate the grievance of the appellant, who is alleged to be the ex-mother-in-law of the respondent, a few facts leading to these proceedings are needed to be noted at the outset. The respondent was the married wife of one Basappa. The appellant is the mother of said Basappa. Respondents husband, Basappa, filed a petition for obtaining divorce against the respondent on the ground of desertion. The said application was moved by said Basappa being M.C. No. 25 of 1989 in the Court of the learned Civil Judge, Gadag in Karnataka 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 though 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. Thereafter, the Trial Court granted a temporary injunction against the respondent. 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 had come to know about the ex parte divorce decree only on 31-3-1990; that she was not served with the summons in the said petition filed by Basappa. She also filed an application for condonation of delay in filing the miscellaneous case for setting aside the ex parte decree of divorce.
3. The learned Trial Judge held that the delay was not properly explained by the respondent and that the respondent was aware of the divorce proceedings much prior to the date on which she is alleged to have come to know about the divorce decree. The Trial Court, therefore, dismissed the respondents application under Order IX, Rule 13, C.P.C. as time barred by its order dated 27-7-1991. Respondent filed a revision petition being Revision Petition No. 3683 of 1991 under Section 115 of the C.P.C. in the High Court of Karnataka. The learned Single Judge of the High Court allowed the said revision application on the ground that the respondent being an illiterate lady would not have read the notice published in the newspaper about the pendency of the divorce proceedings taken out by the respondents husband Basappa against her and, therefore, this was a fit case for condoning the delay in filing the miscellaneous application under Order IX Rule 13, C.P.C. and also for setting aside the ex parte decree. Accordingly the learned Single Judge set aside the ex parte decree by the impugned order and also ordered that the Hindu Marriage Petition be restored to the file. The learned Trial Court was directed to take up the matter and dispose it of in accordance with law as expeditiously as possible. It is this order of the High Court that has been made the subject-matter of appeal by the appellant who claims to be the legal representative of her deceased son Basappa. It may be noted at this stage that the miscellaneous application under Order IX Rule 13 as moved by
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