Matrimonial proceedings do not abate upon the death of a party; equitable considerations must allow for continuation.

(PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL)

This review petition has been filed seeking to review the judgment dated 18.04.2023 passed in MFA No.616/2017 (FC).

2. Heard.

3. Sri.P.P.Hegde, learned Senior Counsel appearing for the petitioner submits that the petitioner has filed MFA No.616/2017 (FC) challenging the judgment and decree dated 28.11.2016 passed in M.C.No.36/2014 by the Principal Judge, Family Court, Hassan, wherein the petition of the respondent husband filed under Section 13 (1) (ib) of the Hindu Marriage Act , 1955 was allowed and the marriage solemnized between the petitioner and the respondent was dissolved. The said judgment was challenged in the aforesaid appeal.

4. It is submitted that this court vide order dated

18.04.2023 disposed off MFA No.616/2017 on the ground that the respondent has expired in the month of April, 2023.

5. It is further submitted that even if the party to the matrimonial proceedings died, the proceedings would not abate. In support of his contention, he has placed reliance on the decisions of the Supreme Court in the case of YALLAWWA (Smt) v. SHANTAVVA (Smt.) reported in (1997) 11 SCC 159 and RAVINDER KAUR v. MANJEET SINGH (Dead) through Legal Representatives reported in(2019) 8 SCC 308.

6. It is submitted that the Hon'ble Supreme Court at para 8 of Yellawwa's case (supra) has clearly observed that if either of the parties to the matrimonial dispute die, the proceedings would not abate, as it has other consequences. Hence, review of the judgment dated 18.04.2023 passed in MFA No.616/2017 (FC) is sought on the ground of error apparent on the face of it.

7. Per contra, Sri.Kalyan.R, learned counsel appearing for the legal representatives of respondent no.1 submits that in view of the aforesaid judgments of the Hon'ble Supreme Court appropriate order may be passed.

8. We have heard the arguments of both sides and the material available on record.

9. This court admittedly vide judgment dated

18.04.2023 in MFA No.616/2017 (FC) disposed off the appeal solely on the ground that the respondent-husband has expired in April, 2023.

10. The relevant observations of the Apex Court in the case of YALLAWWA (supra) is extracted herein below:

"8. It is now time for us to refer to the decisions of different High Courts on which strong reliance was placed by either side. The learned counsel for the appellant in support of the alternative contention that proceedings under Order IX Rule 13 CPC would abate on the death of the husband who had obtained an ex parte decree against his wife relied upon a decision of the Madras High Court in the case of Saraswathi Ammal v. Lakshmi wherein a learned Single Judge no doubt had taken the view which is canvassed by the learned counsel for the appellant. It has been observed by the learned Judge that where on application by the husband alleging that his wife deserted him intentionally and without any justification a decree of divorce was passed ex parte and the husband died subsequently on passing of the decree, the wife could not seek to set aside ex parte decree thereafter by impleading the legal representatives of the deceased husband. The proceedings for divorce initiated by the deceased husband was purely personal to him founded on the subsistence of the marriage between him and his wife and on his death the proceedings at whatever stage they were stood abated. When the husband alleged that his wife deserted him without any justification, that complaint was purely a personal complaint of the husband against his wife with which the husband's legal representatives had nothing whatever to do. The very basis for the initiation of proceedings for divorce was purely personal to the h