IMPORTANT POINT
Ex-parte decree of divorce will abate in case husband dies during pendency of application seeking recall of ex-parte decree.

ORDER

The petitioner is before this Court seeking a direction of issuance of a writ in the nature of mandamus directing the respondent to issue widow identity card in her favour in terms of the representation so submitted on 20th September, 2022.

2. Heard Sri. Sreerangaiah L., learned counsel appearing for the petitioner and Sri. H. Shanthi Bhushan, learned Deputy Solicitor General of India representing the respondent.

3. Sans details, facts in brief, germane are as follows:-

The petitioner is the wife of one L. Ramakrishna, who was an ex-service personnel. The petitioner gets married to L. Ramakrishna on 20th April, 1987 and from the wedlock, they also have a girl child born on 08.07.1995, who is presently with the petitioner. The husband of the petitioner at the time of marriage was serving in the Indian Army and the petitioner lived in the matrimonial house along with the father and mother of the husband. The husband used to visit the house once in a year for close to two months. Things go on well till the husband submits his resignation to the Indian Army and comes out of the military service in the year 2006. After the husband resigns the job and comes to the matrimonial house, the problems begin between the husband and his wife. It is the case of the petitioner that the husband used to pick up quarrel unnecessarily and when it became difficult to sustain, the petitioner registers a complaint against the husband and his family members for several offences.

4. On the registration of complaint against the husband and his family members, the husband institutes M.C.No.3613 of 2017 invoking Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 seeking dissolution of marriage, which had taken place 30 years ago. The concerned family Court issues notice once and on the ground that the wife did not appear before the Court grants an ex-parte, decree of divorce. This was not known to the petitioner. When the petitioner gets the knowledge of grant of divorce, that too ex-parte, she files an application before the concerned Court under Order IX Rule 13 of the Code of Civil Procedure seeking recall of the ex-parte decree. The application was pending consideration before the Concerned Court. During the pendency of the application, before the decree could be recalled, the husband of the petitioner dies. On the death of the husband of the petitioner, an application is filed seeking to dismiss M.C.No.3613/2017, holding it to be abated. The concerned Court closes the petition by dismissing the petition as abated. Therefore, there is no decree of divorce that is hanging on the head of the petitioner. In that light, the petitioner submits a representation to the Sainik Welfare and Resettlement Department of the Defence seeking grant of an identity card being a widow of an ex-service personnel. The card is not granted ostensibly on the score that the petitioner was no longer a widow of the ex-serviceman, as she was divorced during the life time of the husband and, therefore, no consideration of the representation is yet to happen. It is this action that has driven the petitioner to this Court, in the subject petition.

5. The learned counsel appearing for the petitioner would vehemently contend that the brothers of the husband of the petitioner had forced the husband to take an ex-parte decree of divorce to knock off certain properties that were standing in the name of the husband and the Court passed an ex-parte decree of divorce. It is his submission that an ex-parte decree of divorce is no decree in the eye of law and the petitioner immediately on coming to know of grant of ex-parte decree of divorce preferred Miscellaneous Petition No.95 of 2019 seeking recall of the order of divorce. The Miscellaneous Petition is later dismissed as abated. He would contend that the petitioner is entitled to an identity card for a widow, being a widow of ex-serviceman.

6. Per contra, the learned Deputy Solicitor General of India, Sri. H.Shanthi Bhushan