Civil Application (Caf) No. 1514 … vs Unknown on 5 October, 2011

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Bombay High Court
Civil Application (Caf) No. 1514 … vs Unknown on 5 October, 2011
Bench: A. B. Chaudhari
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                    CIVIL APPLICATION (CAF) No. 1514 of 2011




                                               
                        (In FIRST APPEAL NO.836 OF 2009)


     APPELLANT :-     Lubhan Gopal Nikhare
                       aged about 38 years, Occ.: service
                       r/o Navegaon Vidyalaya, Navegaon Bandh,




                                   
                       Tahsil Arjuni Morgaon, Distt. Gondia.
                    ig               ...VERSUS...

     RESPONDENT :- Sau. Sandhya w/o Lubhan Nikhare,
                     aged 30 years, Occupation : Household,
                  
                     r/o c/o Nilkanth Ganpat Dhakate,
                     Indira Gandhi Ward, Chandani Chowk,
                     Bhandara.

     APPLICANT :       Gopala Bansilal Nikhare,
      

                        aged 80 years, r/o Sangadi,
                       Tah. Sakoli, Distt. Bhandara.
   



     -------------------------------------------------------------
                  Mr. Anil Mardikar Advocate for appellant.
                 [Mr. J.R. Kidilay Advocate for respondent.
     -------------------------------------------------------------





                                    CORAM : A.B. CHAUDHARI,J.

DATED : 05.10.2011

ORAL JUDGMENT

This is an application filed by the father of the
appellant seeking permission to prosecute the present
appeal and for bringing him on record in place of his son-
original appellant, who expired during the pendency of
this appeal.

2. This application has been vehemently opposed by

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the respondent/wife and reply has also been filed.

Placing reliance on the decision of supreme Court in the
case of Smt. Yallawwa v. Smt. Shuntavva – AIR 1997 SC 35
learned counsel for the respondent/wife argued that the
appellant/husband Lubhan having expired during the

pendency of present appeal and the subject matter of the
appeal being the proceedings for divorce between husband
and wife on the ground of desertion and cruelty, the cause
was purely a personal cause of action and, therefore, the

same would die with the husband. He then argued that the

respondent/ wife has one child and at any rate on merits
of the matter there is no substance in the present appeal
as the decree of dismissal of divorce petition is well

justified. According to him, the person sought to be
substituted in place of original appellant is his father,
who is not a class I heir but the child is, and therefore,
no better rights can be read in favour of father as

against the son of original appellant and respondent.

Therefore, the cause of action being a personal cause of
action, this appeal will have to be dismissed as having
been abated. In support of his contentions, he relied on

para 10 of the judgment of supreme court, cited supra.

3. Per contra, Mr.Mardikar opposing the objection to
his application for bringing the father of original
appellant on record, submitted that the aforesaid supreme
court decision is in fact a decision in favour of the

applicant. He submits that in the said decision though
the facts were similar the decree that was passed was an
ex parte decree. The said ex parte decree was set aside
by the High Court and the proceedings of the petition for
divorce were restored before the trial Court. Once the
effect of ex parte decree was wiped out by virtue of the

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decision of High Court by setting aside ex parte decree,

there was no decree standing in the way of either of the
parties. Therefore, at the stage after remand the
proceedings due to the death of one party assumed
character of purely personal cause of action, and

therefore, in the facts of the said decision of Supreme
Court it was held that the proceedings of divorce could
not be continued in the trial Court. However, he argued
that sofar as the instant appeal proceedings are

concerned, the Supreme Court in categorical terms has held
that prosecution
maintainable.

ig of appeal by legal heir would be

4. I have heard learned counsel for the rival parties

at length and also carefully considered the supreme court
decision, cited supra. It s not necessary to repeat what
the Supreme Court has stated in the aforesaid decision.
Insofar as the present case is concerned,it would be

relevant to quote the extracted portion from para 7 in

caption (i) and (ii) of the said decision.

“But once these proceedings are initiated
by the concerned aggrieved spouse, the

trial then proceeds further. It is of
course true that pending such trial if
either of the spouses expires then, as
seen earlier, the personal cause of
action against the husband or the wife,

as the case may be, dies with the
departing spouse. As no rights are still
crystallised by then against or in favour
of either spouse, no proprietary effect
or any adverse effect on the status of
the parties would get generated by mere

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filing of such petition and the status

quo ante would continue to operate during
the trial of such petition. However, the
situation gets changed once a decree of
divorce follows in favour of either of

the spouses whether such decree is
bipartite or ex parte. Thereafter, as
noted earlier direct legal consequences
affecting the status of parties as well

as the proprietary rights of either of

them, as
such a
noted earlier, would flow from
decree. Under these
circumstances, if the aggrieved spouse

who suffers from such legal effects of
the adverse decree against him or her is
told off the gates of the appellate
proceedings or proceedings for setting

aside such ex parte decree, the concerned

spouse would suffer serious legal damage
and injury without getting any
opportunity to get such a decree set

aside on legally permissible grounds.

Consequently, it may be held that once
the petition under Section 13 of the
Hindu Marriage Act results into any
decree of divorce either ex parte or

bipartite then the concerned aggrieved
spouse who suffers from such pernicious
legal effects can legitimately try to get
them reversed through the assistance of
the Court. In such an exercise, all
other legal heirs of deceased spouse who

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are interested in getting such a decree

maintained can be joined as necessary
parties. Section 13(1) of the Hindu
Marriage Act can obviously come in the
way of such proceedings being maintained

against the legal heirs of the decree-
holder spouse. …..

In a decree of divorce on these
grounds whether ex parte or bipartite is

not permitted to be challenged by the

aggrieved spouse, it would deprive the
aggrieved spouse of an opportunity of
getting such grounds re-examined by the

competent Court. It cannot, therefore,
be said that after a decree of divorce is
passed against a spouse whether exparte
or bipartite such aggrieved spouse cannot

prefer an appeal against such a decree or

cannot move for getting ex parte divorce
decree set aside under Order IX Rule 13,
C.P.C. Such proceedings would not abate

only because petitioner who has obtained
such decree dies after obtaining such a
decree. The cause of action in such a
case would survive qua the estate of the
deceased spouse in the hands of his or

her heirs or legal representatives.

       Consequently          in          such            appellate
       proceedings     or    proceedings            under      Order

IX, Rule 13 C.P.C., other heirs of the
deceased spouse could be joined as
opposite parties as they would be

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interested in urging that the surviving

spouse against whom such decree is passed
remains a divorcee and is not treated to
a widow or widower of the deceased
original petitioner so that she or he may

not share with other heirs the property
of deceased spouse. So far as the other
heirs of the deceased spouse are
concerned, they would certainly be

interested in getting the decree of

divorce confirmed by the appellate court
or by the trial court by opposing
application under Order IX, Rule 13

C.P.C., if it is an ex parte decree
against the concerned spouse. It must,
therefore, be held that when a divorce
decree is challenged by the aggrieved

spouse in proceedings whether by way of

appeal or by way of application under
Order IX Rule 13, C.P.C., for setting
aside the ex parte decree of divorce,

right to survive to the aggrieved
surviving spouse if the other spouse
having obtained such decree dies after
decree and before appeal is filed against
the same by the aggrieved spouse or

application is made under Order IX, Rule
13 by the aggrieved spouse for getting
such an ex parte decree of divorce set
aside. Similarly, the right to sue would
also survive even if the other spouse
dies pending such appeal or application

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under Order IX, Rule 13, C.P.C. In their

case proceedings can be continued against
the legal heirs of the deceased spouse
who may be interested in supporting the
decree of divorce passed against the

aggrieved spouse……”

5. To my mind, the ratio decidendi of the aforesaid
supreme court judgment applicable in the present case is

that the decree of dismissal of divorce petition of the

appellant/ husband would continue to operate against (his
legal heirs) interest without hearing his appeal, and that
obviously would be violative of principles of natural

justice. Hence, applicant- father of the original
appellant/husband will have the right to continue to
prosecute this appeal as the legal heir. That being so,
it is imperative that the said legal heir of the appellant

ought to be allowed to prosecute the present appeal and

contest the decree which was passed against the original
appellant/ husband. In that view of the matter, the
objection taken by the learned counsel for respondent/wife

will have to be over-ruled. In the result, I make the
following order.

ORDER
C.A.F. No. 1514 of 2011 is allowed in terms of

its prayer clause (i).

Amendment be carried out within one
week. C.A. disposed of.

6. Learned counsel for respondent/wife submits that
the application made by the wife for appointment on

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compassionate ground in place of her husband has not been

considered by the competent authority only because of
pendency of the present appeal, and as a result the wife
and her child are suffering financial crisis. He has
filed photo copy of letter dated 5.9.2011 issued by

Navodya Vidyalaya Samiti, which is marked “X” for
identification and taken on record, which supports what
the counsel is saying. He, therefore, prayed for disposal
of appeal on merits, to which the learned counsel for the

appellant has no objection. In that view of the matter,

let this appeal be fixed for final hearing on 18.10.2011
at 2-30 p.m.

JUDGE

/TA/

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