Right To Seek Divorce Is 'Personal Right' Of Individual, Family Cannot Pursue Proceedings After Son's Death: Bombay High Court

In a significant ruling, the Bombay High Court held that the 'right to seek divorce' is a personal right of an individual and the same cannot be extended to the family members of a person, even after his or her death.

A division bench of Justices Mangesh Patil and Shailesh Brahme delivered the judgment while dismissing an appeal filed by the mother and brothers of a Pune-based man, who sought to pursue the mutual consent divorce proceedings against the man's wife, after he died during the Covid19 outbreak.

The judges said under section 13B(2) of the Hindu Marriage Act, it is a condition precedent for passing a decree of divorce, only after the parties (husband and wife) submit a second motion.

It is only on making of such a motion by both the sides, the Court can proceed for hearing both the sides and can undertake requisite enquiry as deemed necessary. Upon its satisfaction that the marriage was solemnized and the averments in the petition were true that it can pass the decree. Keeping aside the aspect of the period mentioned in sub-section (2), it is only on the basis of a motion, that the Court would get the jurisdiction to undertake further enquiry for reaching its decision about performance of marriage and the contents of the petition. It is not automatic, the bench said.

"In other words, even after filing of a petition for divorce by mutual consent, if no motion is moved by the parties jointly, there would be no question of Court undertaking any further enquiry. It cannot happen at the instance of only one of the spouses," the judges held.

The bench further said,

"The right to seek divorce was a personal right of deceased and the principle being actio personalis moritur cum persona, cause of action would not survive to the appellants and the petition for divorce by mutual consent would stand abated as has been correctly concluded by the Judge in the impugned order."

The bench was seized with an appeal filed by the mother and two brothers of a man, seeking to be brought on record as the legal heirs of the deceased man, so as to pursue the divorce by mutual consent, proceedings initiated by the man and his estranged wife.

The bench noted that after filing for divorce by mutual consent, the now deceased husband, had agreed to pay total Rs 5 lakh alimony to the wife. He paid the first half of it (Rs 2.50 lakhs) to the wife and agreed to pay the remaining after moving the second motion. However, in the interregnum, the husband died. The wife then moved the Family Court and sought to close the divorce proceedings since the husband was no more. His family members, however, sought to be brought on record as the deceased's legal heir and pursue the proceedings further. However, the same was dismissed by the Family Court and as urged by the wife, the proceedings were closed.

"Moving of motion under sub section (2) of section 13-B of the Act, is a sine qua non for passing of a decree of divorce by mutual consent. It was not made in the present matter, such withdrawal of consent after demise of the husband was redundant since that second motion has to be a joint motion. Once having reached such a conclusion, the appellants being the heirs of deceased - his mother and two brothers, they have no right to come on record, even they would not get any right to prefer an appeal under section 19 of the Family Courts Act," the judges opined.

With these observations, the bench dismissed the appeal.

It would not be out of place to mention that recently, the Allahabad High Court held that after the death of the husband who had filed for declaration (of marriage as void) under Section 11 of the Hindu Marriage Act, 1955, his parents have a right to pursue the proceedings under Order 22 Rule 3 CPC as such matrimonial disputes include questions of inheritance.

Case Details: Aniket Dhatrak vs Shalaka Dhatrak (FCA/37/2023)

Appearance:

Advocate Mukul S Kulkarni appeared for the Appellants.

Advocate Subodh P Shah represented the Wife.

Click Here To Read/Download Judgment