The right to sue in divorce proceedings does not survive the death of the original petitioner, leading to abatement.

JUDGMENT

Arindam Sinha, J. - Mr. Das, learned advocate appears on behalf of petitioner and submits, his client has not been granted legal heir certificate in spite of her being widow of the deceased. He draws attention to order dated 31st October, 2015, made in the criminal proceeding initiated by his client under section 125 in Code of Criminal Procedure, praying for interim maintenance. The family Court found, admittedly his client is married wife of the since deceased.

2. Mr. Sharma, learned advocate, Additional Government Advocate appears on behalf of State and submits with reference to impugned order dated 24th September, 2016, the Revenue Officer gave reasons relying on report of the Revenue Inspector saying, inter alia, petitioner had absconded and got married to another person. He relies on clause-(b) in note under rule 3 of Odisha Miscellaneous Certificates Rules, 2017, published in Odisha Gazette Extra Ordinary on 17th April, 2017 providing, inter alia, in disputed cases applicants may be advised to approach civil Court.

3. Mr. Sangeneria, learned advocate present in Court is appointed Amicus Curiae. He submits, the Supreme Court in Yallawwa v. Shantavva, reported in AIR 1997 SC 35 had said that ex-parte divorce decree obtained against the wife and thereafter the husband having died, would not prevent the aggrieved wife for filing application to set it aside.

4. Mr. Das taking cue from Amicus Curiae, relies on view taken by a learned single judge of the Delhi High Court in Kimti Lal v. Indu Kundra, reported in AIR 1999 Delhi 325, wherein paragraph 10 in Yallawwa (supra) was relied upon. Paragraph 10 from Yallawwa (supra) is reproduced below.

'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 like trying to slay the slain. At this stage there remains no marriage to be dissolved by any decree of divorce.

Consequently, now the ex parte decree is set aside, no useful purpose will be served by directing the Trial Court to proceed with the Hindu marriage petition by restoring it to its file. The Hindu Marriage Petition No. 25 of 1989 moved by Shri Basappa, the husband of the respondent, on the file of the Court of Civil Judge, Gadag will be treated to have abated and shall stand disposed of as infructuous. The appeal is disposed of accordingly. In the facts and circumstances of the case, there will be no order as to costs.'

(emphasis supplied)

5. Mr. Sharma points out that private opposite party no.4, mother of the deceased, has not been properly noticed. Noting says that address on the postal article was not sufficient. Court strikes out name of private opposite party no.4, as neither necessary nor proper party for adjudication of the writ petition.

6. Rule 3 in order XXII of Code of Civil Procedure provides, inter alia, for situation where a sole plaintiff dies and the r