The right to seek divorce by mutual consent is personal and does not survive the death of one party; a second motion is mandatory for the court to have jurisdiction.

JUDGMENT

MANGESH S. PATIL, J.

Admit.

2. At the joint request of the parties, we have heard both the sides finally at the stage of admission.

3. We had been called upon to decide a very interesting issue, as to whether the right to sue survives to the mother and brothers of the deceased husband of the respondent - wife in a petition for divorce by mutual consent filed under section 13-B of the Hindu Marriage Act, 1955 (‘ Act’ ), when he dies even before the second motion under sub section (2) of section 13-B of the Act is moved. 

4. The facts can be stated in brief as under:

i) Deceased (hereinafter referred to as ‘ Aniket ’) and respondent - Shalaka submitted a petition for divorce by mutual consent on 14-10-2020. 

ii) Pursuant to some mutual agreement, Aniket had agreed to pay Rs.5,00,000/- to Shalaka while filing of petition as per terms he paid Rs.2,50,000/- to her.

iii) Unfortunately, Aniket died during COVID - 19 on 15-04-2021.  iv) Respondent - Shalaka submitted a purshis ( Exhibit - 8 ) on 28-04-2021, withdrawing the consent for granting divorce and requested for disposing of the petition.

v) However, the appellants herein who are the mother and brothers of Aniket submitted application ( Exhibit - 15 ) purportedly under Order XXII Rule 3 of the Code of Civil Procedure and requested for an order for allowing them to be brought on record as his legal heirs. Respondent - Shalaka opposed the application stating that the cause of action did not survive.

vi) Even before the impugned order was passed, Advocate D.G. Patil of Dhule Bar Association apparently un-connected with either of the sides, submitted an application ( Exhibit - 17 ) stating that father of Aniket had handed over Rs.2,50,000/- to him for being paid at the time of final decision.  The Family Court permitted him to deposit it and accordingly, the amount was deposited in Court on 21-09-2021. 

vii) The appellants submitted application ( Exhibit – 19 ), soliciting a direction to respondent – Shalaka, to re-deposit the amount of Rs.2,50,000/- received by her on 14-10-2020 as per the consent terms filed on record.  Respondent - Shalaka opposed that application as well. 

viii) Accordingly, the learned Judge of the Family Court heard both the sides and by a common order under challenge, refused permission to the appellants to come on record as legal heirs of deceased Aniket and as requested by the respondent - Shalaka, disposed of the petition for divorce.  Even the appellants’ request for direction to her to re-deposit the money i.e. Rs.2,50,000/- was rejected.  Hence, this Appeal.

5. Learned advocate Mr. Kulkarni for the appellants would take us through the provisions of section 13-B of the Act and would submit that though the right to seek a divorce is a personal right and would not survive to the legal heirs. However, pursuant to the terms of settlement, respondent - Shalaka was paid an amount of Rs.2,50,000/- and merely a procedural compliance was to be made by moving a second motion under sub-section (2) of section 13-B of the Act. Since substantial part that was to be performed by deceased - Aniket was already performed,  in the light of division bench decision of this Court in the matter of Prakash Alumal Kalandari V. Jahnavi Prakash Kalandari; AIR 2011 Bom. 119 , the request of respondent - wife seeking to withdraw her consent would tantamount to her unjust and inequitable enrichment and deceased - Anikat had earned the right to seek divorce by mutual consent. 

6. Mr. Kulkarni would also seek to rely upon the decisions in the  matters of Yallawwa v. Shantavva; (1997) 11 SCC 159 and three decisions of Single Judges of this Court in; i) Jayshree Ramesh Londhe Vs. Ramesh Bhikaji Londhe; AIR 1986 Bom. 302 , (ii) Kamalabai V. Ramdas Manga Ingale; AIR 1981 BOM. 187 and (iii) Lubhan Gopal Nikhare Vs. Sandhya; 2012(3) Mh.L.J. 378. 

7. Mr. Kulkarni would submit that respondent - Shalaka had merely submitted a purshis Exhibit – 8, without seeking to make out any ground as contemplate