R.Lakshmi Vs. K.Saraswathi Ammal
EmailAppeal: Civil Appeal Nos.12664-65 of 1996.
(Arising out of S.L.P.(C) Nos.3096-97 of 1989)
(From the Judgment and Order dated 23.12.88 of the Madras High Court in C.R.P.No.2556-57 of 1986)
(Arising out of S.L.P.(C) Nos.3096-97 of 1989)
(From the Judgment and Order dated 23.12.88 of the Madras High Court in C.R.P.No.2556-57 of 1986)
Petitioner: R.Lakshmi
Respondent: K.Saraswathi Ammal
Apeal: Civil Appeal Nos.12664-65 of 1996.
(Arising out of S.L.P.(C) Nos.3096-97 of 1989)
(From the Judgment and Order dated 23.12.88 of the Madras High Court in C.R.P.No.2556-57 of 1986)
(Arising out of S.L.P.(C) Nos.3096-97 of 1989)
(From the Judgment and Order dated 23.12.88 of the Madras High Court in C.R.P.No.2556-57 of 1986)
Judges: B.P.JEEVAN REDDY & K.S.PARIPOORNAN, JJ.
Date of Judgment: Sep 27, 1996
Appearances:
Ms. Bina Gupta, Ms. T.Sudha and Ramesh Singh, Advocates for the Appellant.
Head Note:
Hindu Marriage Act
Section 13 – Ex parte Divorce – Husband died after securing divorce – Setting aside of decree sought by wife under Order IX Rule 13. C.P.C – Held decree obtained effective in law and deter-mines the status of appellant and also determines her rights in the properties of the husband – Sufficient locus standi and right to contest the divorce even after death of husband – Trial Court directed to dispose off application.
Section 13 – Ex parte Divorce – Husband died after securing divorce – Setting aside of decree sought by wife under Order IX Rule 13. C.P.C – Held decree obtained effective in law and deter-mines the status of appellant and also determines her rights in the properties of the husband – Sufficient locus standi and right to contest the divorce even after death of husband – Trial Court directed to dispose off application.
Civil Procedure Code, 1908
Order IX Rule 13- Application for reopening of ex parte decree of divorce sought by wife after the death of her husband – Application competent – See Hindu Marriage Act .
JUDGEMENT:
O R D E R
1. Though the respondent is served, no one appears for the respondent.
2. Leave granted.
3. The appellant is the wife, against whom her husband had obtained an ex-parte decree of divorce. After obtaining the decree, the husband died. The wife on coming to know of the ex-parte decree, applied for setting aside the decree of divorce under Order IX Rule 13 of the Code of Civil Procedure. The Trial Court dismissed the said application observing that since divorce is a personnel remedy, it cannot be persued after the death of the husband. But the Appellate Court’s view has in turn been reserved by the High Court.
4. We are of the opinion that the wife should be and is competent to maintain the application under Order IX Rule 13. Even though the husband is dead, yet the decree obtained by him is effective in law and determines the status of the appellant. If the appellant says that it is an ex-part decree in law and determines the status of the appellant. If the appellant says that it is an ex-parte decree and ought to be set aside, her application has to be heard on merits. The decree of divorce determines her status as a wife apart from determining her rights in the properties of her deceased husband. This gives her sufficient locus standi and right to contest the divorce proceedings even after the death of her husband.
5. Accordingly, the appeal is allowed and the matter is remitted to the Trial Court to dispose of the application filed by the appellant under Order IX Rule 13 on merits in accordance with law. No costs.
6. M.Bina Gupta says that the appellant has bee provided a job in the Electricity Board on compassionate grounds on the basis that she is the wife of the deceased employee. Pending disposal of the divorce proceedings finally, it is directed that she will not be disturbed from the said post.
1. Though the respondent is served, no one appears for the respondent.
2. Leave granted.
3. The appellant is the wife, against whom her husband had obtained an ex-parte decree of divorce. After obtaining the decree, the husband died. The wife on coming to know of the ex-parte decree, applied for setting aside the decree of divorce under Order IX Rule 13 of the Code of Civil Procedure. The Trial Court dismissed the said application observing that since divorce is a personnel remedy, it cannot be persued after the death of the husband. But the Appellate Court’s view has in turn been reserved by the High Court.
4. We are of the opinion that the wife should be and is competent to maintain the application under Order IX Rule 13. Even though the husband is dead, yet the decree obtained by him is effective in law and determines the status of the appellant. If the appellant says that it is an ex-part decree in law and determines the status of the appellant. If the appellant says that it is an ex-parte decree and ought to be set aside, her application has to be heard on merits. The decree of divorce determines her status as a wife apart from determining her rights in the properties of her deceased husband. This gives her sufficient locus standi and right to contest the divorce proceedings even after the death of her husband.
5. Accordingly, the appeal is allowed and the matter is remitted to the Trial Court to dispose of the application filed by the appellant under Order IX Rule 13 on merits in accordance with law. No costs.
6. M.Bina Gupta says that the appellant has bee provided a job in the Electricity Board on compassionate grounds on the basis that she is the wife of the deceased employee. Pending disposal of the divorce proceedings finally, it is directed that she will not be disturbed from the said post.
