A matrimonial decree cannot be set aside after the decree holder's death; right to sue does not survive in such cases, rendering proceedings abated.

JUDGMENT :

Arindam Sinha, J.

1. The appeal stands preferred against judgment dated 6th October, 2025 of the Family Court, allowing the applications made by respondent in the original matrimonial case, for condonation of delay and setting aside ex-parte judgment dated 13th November, 1991.

2. By said ex-parte impugned judgment dated 13th November, 1991 the marriage of respondent no. 1 with her husband, since deceased stood dissolved. During his life time said deceased husband remarried. Appellants are the second wife and her children. Respondents are first wife and her children. The man died on 12th April, 2023. Respondent no. 1 through her brother applied for death benefits from his employer. On being told there was already claim made by the widow (the second wife)/appellant no. 1, respondent no. 1 approached the Family Court on gross delay, for setting aside the ex-parte judgment and decree with application for condonation of delay. By impugned judgment dated 6th October, 2025, the delay was condoned and the ex-parte judgment and decree dated 13th November, 1991 set aside, for the matrimonial case being restored to its original file and number. Furthermore, the matrimonial case itself was thereby brought to an end. Appellants are in appeal against said judgment.

3. Mr. Ratnesh Kumar Pandey, learned advocate appears on behalf of appellants and on earlier occasion he had handed up English translation of impugned judgment. Ms. Shreya Gupta, learned advocate appears on behalf of respondents.

4. The appeal was moved before us on 25th November, 2025. On subsequent occasion we had formulated a question of law. It appears from paragraph 3 in our order dated 26th February, 2026. The paragraph is reproduced below.

"3. The short point to be answered is whether a judgment decreeing a matrimonial suit can be set aside under rule 13 order IX, Code of Civil Procedure, 1908, where on the date of application the decree holder was dead and the right to sue of appellants (no.1) seeking setting aside the judgment dissolving the marriage, does not survive."

Ms. Gupta submits, the Supreme Court in Smt. Yallawwa vs. Smt. Shantavva reported in(1997) 11 SCC 159, answered the question. She submits further, the Family Court followed this judgment to restore the matrimonial case and thereupon bring it to an end as abated.

5. Ms. Gupta submits further, fraud was practiced on her client by her late husband. He had initially filed for divorce. Her client, upon being served with the summons, entered appearance and filed written statement, to contest the case. The husband thereafter failed to prosecute and the case was dismissed for default. Subsequently, giving incorrect address of her client, he filed second case for divorce and fraudulently obtained said ex- parte judgment and decree dated 13th November, 1991. She relies on rule 9 in order IX to submit, the second case was barred. Furthermore, upon summons not duly served, the deceased husband had obtained direction for substituted service. The notice was published in an evening publication circulated in western Uttar Pradesh. Her client resides at Jewar, Gautam Budh Nagar, while she was purportedly noticed as residing in Haryana. The publication was made on contention that she resides in Bulandshahr. Thus, her client demonstrated with particulars, proof of fraud practiced by her deceased husband in obtaining since set aside ex-parte judgment and decree dated 13th November, 1991. She submits still further, order sheet in the second matrimonial case reveals the publication was made on 29th October, 1991. Service was held to be sufficient on 11th November, 1991 and on 13th November, 1991 the ex- parte judgment and decree was passed. The Family Court thereafter, upon being presented with pleadings, particulars and proof of the fraud practiced was pleased to condone the delay and set aside the ex-parte judgment. There was no error, either on facts