1. The husband of the respondent filed OP No. 30/ 86 for dissolution ofhis marriage with the respondent under S. 13 of the Hindu Marriage Act 1955 ('the Act', for short). The petition was decreed ex parte on 11-7-1988. The petitioner (respondent?) filed IA No. 870/ 88 to set aside the ex parte decree. Subsequently, the husband of the respondent died on 11-2-1989, leaving behind his mother, the petitioner herein, as the only heir. The respondent filed IA No. 712/89 under O.22, R.4(c) and S. 151, C.P.C. to implead the petitioner as the legal representative of the deceased in IA No. 870/ 88. The learned Judge allowed the application, giving rise to this revision.
2. Sri Y. K. Rayudu, learned counsel for the petitioner firstly contended that proceedings under S. 13 of the Act are personal in nature and they stand abated with the death of one of the spouses and no legal representatives of the deceased can be im-pleaded for continuing the proceedings. He further submitted that O.22, R.4, C.P.C. is not applicable to the proceedings under the Act.
3. Sri Adinarayanarao, learned counsel for the respondent submitted that the proceedings under S. 13 of the Act not only involve the personal status of the spouses, but also the marital status of the surviving party, including the right to inherent the property of the deceased and hence, the legal representative of the deceased can be brought on record and the proceedings can be continued. He further contended that the judgment rendered under S. 13 of the Act is a judgment in rem and not a judgment in personem and the provisions of the Civil Procedure Code, including O.22, R, 4, are applicable to the proceedings under the Act.
4. In view of the rival contentions of the parties, the question for consideration is, whether the provisions of O.22, R. 4, C.P.C. are applicable to the proceedings under S. 13 of the Act?
5. Sri Rayudu relying on V. Sunanda v. V. Venkata Subbarao, AIR 1957 AP 424, argued that even an appeal filed against a decree for divorce would abate on the death of one of the parties and therefore, the entireproceedings, including the application for setting aside an ex parte decree, would abate. The learned Judges were dealing with abatement of the appeal against the decree dissolving the marriage where the respondent died and a question arose whether the appeal alone abated, leaving the decree intact, or whether the petition itself abated with the result that the decree also was vacated. It was held therein that the decree dissolving the marriage determines the status of the parties and is equivalent to a judgment in rem and will not stand automatically vacated on the abatement of the appeal. No proposition of law that the legal representatives of the deceased, respondent in appeal, cannot be brought on record in the appeal, is laid down, as contended by the learned counsel. On the other hand, the learned Judges clearly held that a decree for dissolution of marriage determines the status of the parties and is equivalent to a judgment in rem, meaning thereby that the decree is not a decree in personem, which merely determines the personal rights of the surviving party.
6. The learned counsel next referred to Saraswathi Ammal v. Lakshmi, : AIR1989Mad216 , wherein a learned single Judge of the Madras High Court held that an application filed for setting aside an ex parte decree for divorce, is not maintainable under O.22, R. 4, C.P.C., and that such a proceeding gives rise to a personal cause of action and does not survive on the death of the spouse. It was further held that the application for setting aside the ex parte decree abates. The learned Judge dissented with the judgment of the Karnataka High Court reported in Iravya v. Shivappa, : AIR1987Kant241 , which took a contrary view. To the same effect is the view taken by the Calcutta High Court in Butter-field v. Butterfield, AIR 1923 Cal 426. With great respect to the learned Judges, I am not able to agree with the view taken by them for the reasons to be set out in a later part of the judgment.
7. The decision in Olive French Marsh v. Norman Leslie Fitz Morris Marsh, AIR 1945 PC 188, is next referred to by the learned counsel in contending that the moment thedecree dissolving the marriage was pronounced, the status of the wife ceased, depriving her of the status as a wife, and therefore, no application to bring on record the, legal representatives of the deceased-husband could be entertained. The learned Judges were dealing with an application for intervention in a proceeding initiated for dissolving the marriage and it was held that such an application cannot be maintained after the decree is made absolute. It was also held that the judgment is a judgment in rem and unless and until the Court of Appeal reversed it, the marriage for all purposes, came to an end. It is therefore, implied from the above judgment, that the decree for divorce can be reversed in appeal, even after the death of one of the parties. The judgment does not support the contention of the petitioner. The learned counsel next referred to Maharani Kusumakumari v. Kusuma kumari Jadeja, : 1SCR193a , and submitted that legal representatives can be impleaded only under proceedings under S. 11 or 12 of the Act, as it involves the legitimacy of the children born during the subsistence of the marriage. The Supreme Court was dealing with situations arising out of the proceedings under S. 11 of the Act. It was held that a petition filed even after the death of the other spouse for declaration of nullity of marriage, is maintainable, relying on the report of the Law Commission relating to amendment of the Act in the year 1976. In the report of the Law Commission it was suggested that there is no general rule that where one of the parties to a divorce suit is dead, the suit abates, so that no further proceedings can be taken in it and that it is unhelpful to refer to abatement at all. One of the situations in which the further proceedings will continue, is the nature of the further proceedings sought to be taken. It is therefore, clear that where the wife has a right to claim succession to the estate of her deceased-husband, she will have a right to continue the proceedings in order to establish her marital status.
8. Sri Adinarayanarao, placed strong reliance on Iravya v. Shivappa (supra) in which it was held that even though thehusband dies, it is open to the wife to challenge the decree of dissolution of marriage by the process known to law. It was held by the learned Judge that if such a right is denied to the wife her status would be in serious jeopardy and her property rights would be seriously affected. The learned Judge observed (at page 245):
'While laying down these principles, the Court must also bear in mind that the Indian community is rather male dominated and the ladies have got only a second role to play in the matters. The ladies might not come to know about the actions of the males till they are seriously affected and till they are made known about it. Therefore taking into consideration the peculiar position prevailing in our country also I am of the view that a wife is entitled to maintain an action known to law for avoiding a decree of dissolution of marriage obtained by the husband ex parte against her.'
I am in entire agreement with the above view expressed by the learned Judge.
9. In Ponnuthayer Ammal v. Kamakshi Ammal, : AIR1978Mad226 , it was held that where an application for nullity is filed by the spouse for determining the invalidity of the marriage for its own sake or for collateral purpose of deciding the legitimacy of the issue, the real purpose of such a proceeding is only to establish the petitioner's own status and for establishing that question it is not necessary that the other spouse should be living. Applying the said principle, even in proceedings under S. 13 of the Act, the wife can question the decree of divorce, for establishing her own status as a wife. Similar view was expressed by a Division Bench of the Madras High Court in Thulsi Ammal v. Gowri Ammal, : AIR1964Mad118 .
10. A decree dissolving a marriage involves termination of status of the wife. If the husband dies subsequent to th passing of the decree and the wife seeks to set aside the decree, the question would be whether the wife would be the widow of the deceased or a divorcee. If the wife succeeds in having the decree set aside, she will be a widow of thedeceased entitled to the benefit of the Hindu Succession Act and will be entitled to inherit the properties of the husband as a Class I heir. Such a right cannot be claimed and will be lost unless the legal representatives of the deceased-husband are impleaded. The judgment dissolving the marriage is a judgment in rem and will not merely involve the personal status of the wife, but would involve her property rights. The principle of 'Actio personalis cum moritur persona', will not be applicable and the proceedings to set aside an ex parte decree will not abate. Section 21 of the Act makes the provisions of the Civil Procedure Code applicable to the proceedings under the Act. The provisions of O. 22, R. 4 can be applied to bring on record the legal representatives of the deceased party to the proceedings.
11. The order of the learned Judge is correct and requires no interference in this revision. The revision is dismissed. No costs. Communicate the copy within ten days.
12. Revision dismissed.