Wife's Appeal Challenging Divorce Decree Does Not Stand Abated On Husband's Death: Karnataka High Court

The Karnataka High Court recently held that an appeal filed by a wife challenging the divorce decree granted in favour of the husband by the family court does not stand abated on the husband dying pending hearing of appeal.

A division bench of Justice Anu Sivaraman and Justice Anant Ramanath Hegde allowed the appeal filed by a woman and set aside order of the family court granting divorce on grounds of cruelty on the petition filed by the husband.

It said “We are of the opinion that the contention raised by the learned counsel for the respondent that the appeal stood abated cannot be accepted in view of the fact that there are proprietary rights surviving for consideration even on the death of the decree holder - husband.”

The family court had allowed the petition filed by the husband seeking dissolution of marriage under Section 13 (1) (i-a) (i-b) of the Hindu Marriage Act, 1955. It was held that contentions raised by the appellant's husband that the wife had treated him with cruelty stood proved since the wife had filed several cases against the husband and since she had never expressed any willingness to rejoin the husband even in the mediation proceedings.

Further, it was held that the filing of a Police Complaint and the Police registering a criminal case against the husband would go to show that the parties are at loggerheads and cannot live together as husband and wife. It was held that the marriage had broken down irretrievably and the husband was granted a Decree of Divorce under Section 13 (1) (i-a) (i-b) of the Act.

The counsel for the wife contended that there was absolutely no material before the Family Court to hold that the appellant had treated her husband with cruelty. It is submitted that a Police Complaint had been preferred against the husband and his friends by the father of the appellant, who had been physically assaulted by them and that the filing of the said case cannot be treated as an act of cruelty on the part of the wife. Further, filing of a suit claiming maintenance for herself and her child cannot be taken as an act of cruelty under any circumstances.

It was also argued that the wife's rights to the status of a widow and the resultant rights to property and retirement benefits would survive even if the husband passed away while pending the appeal.

The wife's appeal was dismissed as abated on 18.07.2022. However, IAs were filed to recall the order, to set aside the abatement and to bring the legal heirs on record. Though this was objected to, the IAs came to be allowed.

The husband's legal heirs on record then contended tht the husband had spoken about the instances of unspeakable cruelty meted out to him, which was accepted by the Family Court. Thus the judgment of the Family Court is perfectly legal and valid and ought to be sustained. They argued the wife being divorced is not entitled to family pension.

The bench on going through the averments noted that there was never any attempt by the husband either to resume cohabitation or the request made by the husband to the wife to come back to the matrimonial home. Even in the legal notice sent by the husband, the demand is that she should give him divorce by mutual consent and not that she should return to the matrimonial home.

Then it held “We are of the opinion that the findings of the Family Court that the wife has intentionally deserted the husband and that she had acted with such cruelty as to entitle him to a Divorce on the ground of cruelty were unfounded. We are of the opinion that the matrimonial cruelty necessary for grant of a Decree of Divorce or desertion with a clear intention to put an end to the marriage has not been proved in the instant case.”

Referring to Apex court judgment in the case of Yallawwa v. Shantavva, (1997) 11 SCC 159, the court said “The appellant is held to be entitled to the status of 'widow', of the petitioner before the Family Court and is thus entitled to all the consequential benefits of such status.”

Appearance: Advocate P B Ajit for Appellant.

Advocate Syed Khaleel Pasha, Ameya Fadnis for R1(a).

Advocate M Kamala Kumari FOR R1(b).

Citation No: 2024 LiveLaw (Kar) 221

Case Title: ABC AND XYZ

Case No: MISCELLANEOUS FIRST APPEAL NO.4677 OF 2016

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