'No Succession In Marital Union': Punjab & Haryana High Court Declines Mother's Plea To Represent Deceased Son Seeking Divorce

Observing that "the marriage between partners, is a personal contract", the Punjab & Haryana High Court has refused to allow a mother to represent his deceased son in a divorce plea.

Justice Sureshwar Thakur and Justice Sudeepti Sharma said, "the marriage between marital partners, but obviously is a personal contract entered into between the spouses. The said contract remains alive only during the life span of the contracting parties, therebys the said contract terminates on the demise of one of the parties to the marital union."

The bench added that as a result, on the demise of the husband, the appeal challenging the decree whereby divorce was rejected by the family court will be "abated."

These observations were made while dismissing a substitution application moved by a woman who sought to be made party to a divorce plea in the place of her son, who had died during the pendency of the case.

The husband had sought divorce from a family court in 2011. His petition was dismissed in 2014, consequently, he had filed the present appeal. However, he died during the pendency of the plea in 2022.

Counsel representing the wife argued that the application filed by the deceased husband's mother is not maintainable. On the other hand, the counsel for the applicant contended the application for substitution of the deceased-appellant, is maintainable, as there is no bar either in the High Court Rules and Orders nor in the provisions encapsulated in Order 22 Rule 3 CPC.

After hearing both sides, the Court refused to allow the application stating that, "the deceased-appellant when entered into a contract with his spouse, and when the said contract was a personal contract between them, thereupon the deceased appellant became solitarily bestowed with a right to seek annulment of his marital ties with the respondent."

"Emphasisingly therebys the present applicant who is the mother of the deceased when is not a party to the contract, thereby when also she is not a privity to the personal contract of marriage entered into between her son and the respondent," added the bench.

The Court also said that the mother has no right to seek divorce under the garb of a plea for substitution of the party in place of her deceased son.

Mr. S.S. Momi, Advocate for the appellant.

Title: XXX v. XXX [FAO-3869-2014 (O & M)]

Citation: 2024 LiveLaw (PH) 221