Divorce proceedings abate upon the death of either spouse; no decree can be issued posthumously.

JUDGMENT :

Amitendra Kishore Prasad J.

1) The instant criminal appeal has been filed against the judgment and decree dated 05.10.2024 passed in Civil Case No.130-A/2022 by the learned Family Court, Surajpur District Surajpur (C. G.).

2) Mr. Sanjay Pathak, Advocate submits that the appellant-husband, namely, Ajay Kumar Choubey is passed away.

3) On the other hand, learned counsel for the respondent has no objection and supported the submission advanced by the counsel for the appellant-husband.

4) We have heard learned counsel for the both the parties.

5) The present appeal was filed by the appellant-husband under Sections 13 (1)(ib), 13(2)(iii), and 13(1A)(ii) of the Hindu Marriage Act, 1955 , challenging the impugned judgment and decree of the Family Court. However, since the appellant-husband expired during the pendency of this appeal, no cause of action survives for adjudication of the appeal.

6) In this regard, the decision of Shri Kimti Lal Vs. Smt. Indu Kundra, AIR 1999 Delhi 325 (Civil Revision No.713 of 1998 decided on 02.07.1999) is instructive. The Court held that when either spouse dies before the passing of the divorce decree, the cause of action abates, and the divorce proceedings cannot continue. It was further held that no right to sue survives in favour of the heirs of the deceased spouse for obtaining a decree of divorce. The marriage automatically stands dissolved by the death of the spouse, rendering any divorce proceedings infructuous. Extracts from the judgment clearly emphasize that the court cannot dissolve a marriage that already stands dissolved by death, and consequently, the proceedings abate. It is petinent to quote paras 6 & 7 which are reproduced hereinunder for ready reference : -

“6. It is clear from the above mentioned judgment of the Hon'ble Supreme Court that if the husband or the wife expires before passing the decree in a divorce petition the cause of action does not survive and the proceedings in the divorce petition cannot continue. It may be noted that after upholding the judgment of the High Court by which the ex parte divorce decree was set aside and the divorce petition was restored to the file, the Hon'ble Supreme Court held that the divorce petition filed by Shri Basappa would be treated to have abatedand would stand disposed of as infructuous since the petitioner in the said divorce petition had expired and the right to sue would not survive for the other heirs of the deceased husband to get any decree of divorce against the wife. For convenience Paragraph 10 of the judgment of the Hon'ble Supreme Court is extracted hereunder :-

"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 crystallized 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. No action, therefore, survives for the court to snap such a non-existing tie otherwise it would be