SARASWATHI AMMAL Vs. LAKSHMI

JUDGEMENT

(1.) In these civil revision petitions, an interesting question as to whether proceedings for obtaining a decree for divorce instituted by the husband against his wife can be continued by the wife after the death of her husband against her mother-in-law, arises.

(2.) The facts are few and simple and are undisputed. One Ramanathan, the son of the petitioner in these civil revision petitions, married the respondent herein, on 17-02-1975. O.P. 30 of 1983 Sub Court, Kumbakonam, was filed by Ramanathan against the respondent in these civil revision petitions under S.13(1)(b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) praying for a decree of divorce on the ground that the respondent had intentionally and without any justification deserted him. On 24-10-1983, Ramanathan obtained an ex parte decree of divorce against the respondent herein and subsequently he died on 03-06-1984. Thereupon, the respondent herein filed I.A. 66 and 67 of 1985 under O.22, R.4 and O.9, R.13, C.P.C. respectively in O.P. 30 of 1983, to implead her mother-in-law, the petitioner in these civil revision petitions, as the legal representative of her deceased husband Ramanathan and to set aside the ex parte decree of divorce obtained by him in O.P. 30 of 1983 on 24-10-1983. The petitioner herein opposed these applications on the ground that the remedy of divorce sought for by deceased Ramanathan in O.P. 30 of 1983 was a personal remedy arising between the parties to the marriage and could not be prosecuted against the estate of deceased Ramanathan, represented by his mother the petitioner herein. The learned Subordinate Judge accepted this stand of the petitioner and dismissed I.A. 66 of 1985 holding that the relief sought for by the deceased Ramanathan in O.P. 30 of 1983, was purely personal to him and on his death, the respondent cannot prosecute the proceeding against the estate, represented by his legal representative. Consequent upon the dismissal of I.A. 66 of 1985, the learned Subordinate Judge also dismissed I.A. 67 of 1985. Against the dismissal of I.A. 66 and 67 of 1985, in the manner aforesaid, the respondent therein preferred C.M.A. 31 and 32 of 1985 to the District Court, West Thanjavur at Thanjavur. The learned District Judge was of the view that the status of the respondent, whether she is the wife of Ramanathan or whether she is a divorcee, is involved and for a decision on that aspect it was unnecessary that her husband should be alive and it was, therefore, open to the respondent to continue the proceedings in O.P. 30 of 1983, Sub Court, Kumbakonam, initiated by her husband by bringing on record the petitioner herein, her mother-in-law as the legal representative of deceased Ramanathan in order to thrash out her rights as a wife. In this view, the learned District Judge allowed C.M.A. 31 of 1985 and impleaded the petitioner herein as a party in O.P. 30 of 1983, in order to enable the respondent to proceed further therein. Consequent upon the order so passed, the learned District Judge allowed C.M.A. 32 of 1985 and remanded I.A. 67 of 1985 to the Sub Court, Kumbakonam, for disposal according to law. It is the correctness of the order so passed by the learned District Judge in C.M.A. 31 and 32 of 1985 that is questioned by the petitioner in these civil revision petitions.

(3.) Learned counsel for the petitioner first contended that the relief of divorce prayed for by deceased Ramanathan in O.P. 30 of 1983, on the ground of desertion arose purely out of the relationship of husband and wife that then subsisted between him and the respondent herein and was purely personal between the husband and the wife and on the death of the husband, the right to continue the proceedings against the legal representative of the deceased husband did not survive, as the action commenced by deceased Ramanathan was purely a personal action. In order to emphasise the purely personal nature of the action in O.P. 30 of 1983, learned counsel also invited attention to Ss.9 and 13 of the Act, to contend that the condition precedent for obtaining the reliefs of restitution of conjugal rights or a decree of divorce is that the husband and wife should be both alive in order to enable one spouse to initiate the proceedings against the other and seek appropriate relief and in the absence of one due to death, the other surviving spouse cannot initiate any action at all or obtain those reliefs. Reliance was also placed by the learned counsel upon the decisions in Marsh v. Marsh, AIR 1945 PC 188 and Bhan Kaur v. Isher Singh, AIR 1959 P&H 553. On the other hand, learned counsel for the respondent submitted that the death of the husband of the respondent would not in any manner alter the situation as to the respondent, her status as a widow was very important in that she could claim rights to the properties of her deceased husband and, therefore, she could prosecute the further proceedings initiated by her deceased husband against the representative of her husband's estate. To support this argument, learned counsel invited attention to the decisions reported in Thulasi Ammal v.Gowrr Ammal, (1964) 1 Mad LJ 228 and Ponnuthayee Ammal v. Kamakshi Ammal, (1978) 1 Mad LJ 448.