Husband dies during divorce case. Husband’s father continues the fight !!



Bombay High Court

Civil Application (Caf) No. 1514


Lubhan Gopal Nikhare vs Aged About 38 Years, Occ.: Service on 5 October, 2011 Vs Sau. Sandhya w/o Lubhan Nikhare, aged 30 years, Occupation : Household,


Bench: A. B. Chaudhari


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.


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.



DATED : 05.10.2011


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 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 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 of appeal by legal heir would be maintainable.

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 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 noted earlier, would flow from such a 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 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 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 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.


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 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.



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