Bengaluru: Matrimonial proceedings will not abate even if the husband passes away during a pending appeal, the High Court of Karnataka has ruled.
A division bench comprising Justice Anu Sivaraman and Justice Anant Ramanath Hegde noted this while holding the appellant wife to be entitled to the status of 'widow' and to all consequential benefits.
The couple got married in April 2002 in Bengaluru. The husband claimed the wife used to abuse his mother and his sister and left the house within 10 months of the marriage.
On the other hand, the wife contended that she was driven away from the matrimonial home when she was pregnant and that the husband and his family members never bothered to look after her and the newborn son. In 2005, the wife moved the family court for maintenance and the same was granted.
The petition moved by the husband seeking divorce was once dismissed in 2007 for non-payment of interim maintenance. However, he moved another petition in 2010 and the family court granted divorce on the grounds of the wife’s cruelty.
The wife moved the high court challenging this order and contended that there was no material with regard to cruelty meted to the husband. It was also submitted that though the appeal was initially dismissed as abated after the husband’s death during the appeal, since the respondent — husband was working as an accountant in the Accountant General's Office, Bengaluru — the matter had not abated since there was an issue of retirement benefits.
Yallawwa case
The division bench noted that in Yallawwa's case, the apex court had specifically considered the question with regard to the abatement of an appeal in the matrimonial case on the death of one of the parties to the marriage.
"It was specifically held that in such appellate proceedings, other heirs of the deceased spouse could be joined as opposite parties as they would be interested in urging that the surviving spouse against whom such decree is passed remains a divorcee and is not treated to be a widow or widower of the deceased original petitioner, so that she or he may not share with other heirs the property of the deceased spouse. It was held that the appeal can be continued against the legal heirs of the deceased spouse and the appeal could not be said to have abated,” the bench said.
The bench also held as unfounded the findings of the family court that the wife had intentionally deserted the husband and that she had acted with such cruelty as to entitle him to a divorce on the ground of cruelty.
"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,” the bench said, while setting aside the decree passed by the family court.