The right to seek divorce is a personal right and cannot be extended to family members of the deceased, the Aurangabad bench of the Bombay High Court has ruled.
The HC has dismissed a plea by the mother and two brothers of a Pune-based man seeking to pursue his divorce proceedings after he died during the Covid-19 pandemic.
The deceased and the woman filed a petition for divorce by mutual consent on October 14, 2020. They signed a mutual agreement, whereby the man agreed to pay Rs5 lakh and paid the initial Rs2.5 lakh. However, before he could pay the remaining amount, he died on April 15, 2021.
The woman then submitted an application within two weeks for withdrawing the consent for granting divorce and requested for disposing of the petition. The man’s mother and brothers submitted an application requesting the family judge to permit them to be brought on record as his legal heir. The woman opposed this.
The family court rejected their application and disposed of the divorce petition.
Petitioners’ advocate Mukul Kulkarni submitted that section 13-B of the Hindu Marriage Act states that the right to seek a divorce is a personal right and would not survive to the legal heirs. However, pursuant to settlement terms, the woman was paid Rs2.5 lakh and merely the procedural compliance was to be made by filing a second motion under the provisions of the Act. Since the deceased had performed the substantial part of the agreement, wife’s request for withdrawal of consent terms would “tantamount to her unjust and inequitable enrichment”. The man had earned the right to seek divorce by mutual consent, the advocate added.
The wife’s advocate Subodh Shah submitted that no right had accrued to the deceased which could have survived to the appellants. “The right to seek divorce is a personal right. No decree for divorce was ever passed and the appellants could not have been legally allowed to prosecute the cause after the demise of [the man]. Right to sue did not continue beyond the lifetime of the appellant,” the court added.
A bare reading of entire section 13-B makes it abundantly clear that submission of second motion is a “condition precedent” for passing a decree of divorce. 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, the court said.
“In other words, even after filing a petition for divorce by mutual consent, if no motion is moved by the parties jointly, there would be no question of the court undertaking any further enquiry. It cannot happen at the instance of only one of the spouses,” a bench of Justices Justices Mangesh Patil and Shailesh Brahme said.
The judge added: “The appellants being the heirs of deceased [man], 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.”
