For setting aside the ex parte decree of divorce, right to sue survives to the aggrieved surviving spouse if the other spouse having obtained such decree dies after the decree.
Section 13 of the Hindu Marriage Act lays down that marriage whether solemnised before or after the commencement of the Act may be dissolved by a decree of divorce on the grounds mentioned therein on a petition presented by either the husband or the wife. Thus, initially when such petition is to be presented, the person who presents such petition must be either wife or husband and the other party would be the other spouse. 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 proprietary rights of either of them, as noted earlier, would flow from such a decree.
Under the above 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.
A mere look at the ground of Section 13(1) will show that a Hindu marriage can be dissolved on the proof of matrimonial misconduct of very serious nature as mentioned in the concerned grounds, namely, that the offending spouse, after the solemnization of the marriage, has voluntary sexual intercourse with any person other than his or her spouse:or has treated the petitioner with cruelty:or has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or has ceased to be a Hindu by conversion to another religion; or has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder:or has been suffering from a virulent and incurable form of leprosy; or has been suffering from venereal disease in a communicable form; or has renounced the world by entering any religious order or has not been heard of as being alive for a period of seven years or more. These grounds to say the least, if found established, against the offending spouse would be serious matrimonial misconduct or incapabilities and such a spouse will go with a stigma for the rest of his or her life which will have serious pernicious consequences not only social but also legal, as we have noted earlier.
If 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 ex parte 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 the 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 be 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 sue survives to the aggrieved surviving spouse if the other spouse having obtained such decree dies after the 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 either 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.
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 sue survives to the aggrieved surviving spouse if the other spouse having obtained such decree dies after the 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 either 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.
