Back
1996 Supreme(Ori) 206
IN THE HIGH COURT OF ORISSA
A. Pasayat, A. Deb, JJ.
SABITA BEHERA - APPELLANT
Versus
PRAFULLA KUMAR DAS AND OTHERS - RESPONDENT
Decided On : 27-11-1996
S.R. Pattnaik, D.R. Mohapatra and P.K. Rout in C. A. No. 19/94 and S.K. Sahoo, R.K. Sahoo and M. Mohapatra in C. A. No. 23/94, for the Appellant; S.K. Sahoo and R.K. Sahoo in C. A. No. 19/94 and S.R. Patnaik, P.K. Rout, P. Behera and S. Patra in C. A. No. 23/94, for the Respondent
A decree of divorce has direct legal consequences affecting the status of parties as well as proprietary rights of either of them. The aggrieved spouse who suffers from such legal effects of the adverse decree against him or her is entitled to try to get them reversed through the assistance of the Court.
Headnote:
HINDU MARRIAGE ACT, 1956 - SECTION 13(1) - ORDER 9, RULE 13, CPC - SUBSTITUTION OF DECEASED HUSBAND IN DIVORCE PROCEEDINGS - MAINTAINABILITY - SCOPE OF ORDER 9, RULE 13, CPC - APPLICABILITY TO DIVORCE PROCEEDINGS - LEGAL EFFECTS OF DIVORCE DECREE - SURVIVAL OF CAUSE OF ACTION AFTER DEATH OF SPOUSE - RIGHT TO SUE FOR SETTING ASIDE DIVORCE DECREE - IMPLEADING LEGAL HEIRS OF DECEASED SPOUSE - NATURAL JUSTICE - PAYMENT OF MONEY BY IN-LAWS WITHOUT HEARING - VACATION OF ORDER.
Fact of the Case:
The husband filed a petition for divorce under Section 14 of the Hindu Marriage Act, 1956, alleging mental cruelty by the wife. The petition was accepted ex parte and a decree of divorce was granted. The wife filed an application to set aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (CPC). The application was dismissed for default. The husband died during the pendency of the application. The wife filed a second application for substitution of the husband's legal heirs and restoration of the application to set aside the ex parte decree. The application was allowed, and the husband's parents were directed to pay a lump sum amount of Rs. 40,000/- to the wife.
Finding of the Court:
The Court held that the application for substitution and the application under Order 9, Rule 13, CPC were maintainable. The Court further held that the learned Judge, Family Court was justified in accepting the prayer for substitution, but the direction for payment of money by the in-laws was violative of the principles of natural justice. The Court also held that the order rejecting the prayer for restoration was indefensible.
Issues: 1. Whether the application for substitution and the application under Order 9, Rule 13, CPC were maintainable? 2. Whether the learned Judge, Family Court was justified in accepting the prayer for substitution? 3. Whether the direction for payment of money by the in-laws was violative of the principles of natural justice? 4. Whether the order rejecting the prayer for restoration was indefensible?
Ratio Decidendi: 1. The Court held that the application for substitution and the application under Order 9, Rule 13, CPC were maintainable because: (a) a decree of divorce has direct legal consequences affecting the status of parties as well as proprietary rights of either of them; (b) the aggrieved spouse who suffers from such legal effects of the adverse decree against him or her is entitled to try to get them reversed through the assistance of the Court; (c) all other legal heirs of deceased spouse who are interested in getting such a decree maintained can be joined as necessary parties; and (d) Section 13(1) of the Hindu Marriage Act does not bar such proceedings. 2. The Court held that the learned Judge, Family Court was justified in accepting the prayer for substitution because the wife had shown sufficient cause for non-appearance and the order rejecting the prayer for restoration was indefensible. 3. The Court held that the direction for payment of money by the in-laws was violative of the principles of natural justice because they were not heard on the question of liability to pay. 4. The Court held that the order rejecting the prayer for restoration was indefensible because the entire matter should be heard by the learned Judge, Family Court.
Final Decision: The Civil Appeals were allowed to the extent indicated above. The order for payment of money by the in-laws was vacated. The matter was remanded to the learned Judge, Family Court for hearing.
JUDGMENT :
A. Pasayat, J. - These two appeals are inter-linked being directed against the same judgment of learned Judge, Family Court, Cuttack though the grounds of challenge are different. Although the pivotal question posed appears to be simple, it presents some complexities. In essence the dispute is whether there is scope for substitution in place of deceased husband after an ex parte decision is taken in a proceeding for judicial separation or divorce. Certaion other disputes have been raised, with which we shall deal infra.
2. The dispute has arisen in the following background :
Sabita Behera alias Das (appellant in Civil Appeal No. 19 of 1994 and respondent in Civil Appeal Nos. 23 of 1994) was married to Kishore Kumar Das (hereinafter referred to as 'Kishore') on 30-1-1990 according to Hindu rites and customs. An application seeking divorce was filed by Kishore, the husband u/s 14 of the Hindu Marriage Act, 1956 (in short, 'the Act') which was duly accepted on 15-11-1991 by allowing prayer for divorce and directing dissolution of marital tie between Sabita and Kishore. The petition for divorce filed by Kishore was registered as Civil Proceeding No. 184 of 1991 before learned Judge, Family Court, Cuttack. An application was filed on 7-1-1992 purported to be one under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short, 'CPC') seeking to set aside the ex parte Judgment which was numbered as Misc. Cass No. 3 of 1992. The said Misc. Case was dismissed on 24-6-1993 as the parties were absent on repeated calls. On 2 -1-1994 Kishore had ultimately died. On 19-1-1994 Misc. Case No. 9 of 1994 was filed with prayer to implead the heirs of deceased Kishore and for restoration of Misc. Case No. 3 of 1992, which as indicated above, was dismissed on 24-6-1993. By the impugned order, learned Judge, Family Court held that no case for restoration was made out, but directed parents-in-law (appellants in Civil Appeal No. 23 of 1994) to be impleaded and to pay Sabita a lump sum of Rs. 40 000/- in two installments. It has directed that the copies of the judgment shall be sent to the Director General of Police, Orissa, Cuttack, D. I. G. of Police, P. M.T., Orissa, Buxi Bazar, Cuttack and to the Accountant General, Orissa, Bhubaneswar, for speedy disposal of monetary and service benefits payable to the opposite parties, i.e., parents of Kishore, by the State Government. Parents of Kishore assail direction for their impletion and further direction for payment of lump sum amount of Rs. 40,000/- so far as they are concerned, while Sabita assails the rejection of prayer made under Order 9, Rule 13, CPC.
3. According to learned counsel for Prafulla Kumar Das and his wife, the parents of Kishore, an application for substitution in place of Kishore in a proceeding initiated on the basis of application under Order 9, Rule 13, CPC, is misconceived and there is no scope for any substitution. Additionally it is submitted that while dealing with an application under Order 9, Rule 13, CPC, there is no scope for giving any direction for payment of Rs. 40,000/- by two installments to Sabita as life maintenance. The learned counsel appearing for Sabita fairly accepted that the direction for payment of Rs. 40,000/- as given is not sustainable. It is, however, submitted that the findings given in the ex parte decision are likely to affect the social status, property rights of Sabita by way of survivorship because of her marriage with Kishore, and therefore, the prayer for substitution has been rightly accepted.
4. We shall deal with the question of scope of substituting the relative in place of the husband who dies after the decree for judicial separation or divorce is passed, Before delving into that question, it is to be seen what marriage really means.
The exact definition of the word 'marriage' is not available in any sastric texts, though the meaning remains cleat. It essentially means union of man and woman in body soul. As described in Dharma-Sas
