Civil Appeal No 1997 of 1980
From the Judgment and order the 25th April 1980 of the Calcutta High Court in CR No 1529 of 1979
518 Shanker Ghose Sobhan Tagore and PK Mukherjee for the Appellant
LN Sinha Attorney General V Subba Rao and RS Poddar for the Respondent
RB Mehrotra for the Substituted Respondent
The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal by certificate from the Calcutta High Court raises the question whether a decree for permanent alimony passed under section 37 of the hereinafter referred to as the Act  is wiped out with the death of the husband judgment debtor
Respondent Dorothea and one Prafulla Kumar Mitra were married under the Special Marriage Act 1872 in January 1952
Respondent asked for divorce in 1961 and obtained a decree on May 2 1962 to the effect The petitioner s Dorothea Mitra s marriage with the respondent Prafulla Kumar Mitra be dissolved by a decree of divorce
The petitioner do get Rs 300 pm as maintenance from the respondent to be paid by the 1st week of each month following for which it is due until she re marries   Respondent levied execution of the decree and the same was compromised and payment of the arrears was undertaken to be made in instalments
Prafulla Kumar Mitra executed a Will on March 31 1965 but made no provision therein for satisfaction of the maintence decree
He died on April 3 1965 and the appellant who was the executrix under the Will got it duly probated
There is no dispute that the executrix paid the maintenance in December 1975 for a period after the death of Prafulla Kumar Mitra
But since no payment was made thereafter respondent levied execution in Matrimonial Case No 177 claiming recovery of arrears of Rs 19500
Appellant objected to the claim under section 47 of the Code of Civil Procedure by pleading that the order of alimony not being charged the death of Parfulla Kumar Mitra has extinguished the claim of the purported decree holder
The executing court overruled the objection whereupon the appellant invoked the revisional jurisdiction of the High Court
A Division Bench agreed with the executing Court but while dismissing the revision application granted certificate of appeal to this Court
519 The sole controversy is whether the order for alimony got extinguished with the death of Prafulla Kumar Mitra
Admittedly the order was made in exercise of powers under section 37 of the Act
lt provides 37
Permanent alimony and maintence 1 Any Court exercising jurisdiction under Chapter V or Chapter VI may at the time of passing any decree or at any time subsequent to the decree on application made to it for the purpose order that the husband shall secure to the wife for her maintenance and support if necessary by a charge on the husband s property such gross sum or such monthly or periodical payment of money for a term not exceeding her life as having regard to her own property if any her husband s property and ability and the conduct of the parties it may seem to the Court to be just 2 If the District Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub section 1 it may at the instance of either party vary modify or rescind any such order in such manner as it may seem to the Court to be just 3 If the District Court is satisfied that the wife in whose favour an order has been made under this section has remarried or is not leading a chaste life it shall rescind the order
 The language of the section does not warrant the conclusion that there is extinguishment of the decree for alimony upon the death of the judgment debtor husband
We have been told at the Bar that there is no decision on the point and therefore English decisions should be considered for deciding the matter
Section 37 of the Act more or less corresponds to the provisions of sections 19 20 and 22 of the English Matrimonial Causes Act 1950 except that there is nn corresponding provision in the English Act for sub section
3 of the Indian Act
A close look at sub sections
2 and 3 of section 19 of the English Act will indicate that maintenance can be required to be paid for a term not exceeding the life of the 520 wife or during the joint lives of the husband and tho wife
These two sub sections of the English Act read thus 2
On any petition for divorce or nullity of marriage the Court may if it thinks fit order that the husband shall to the satisfaction of the Court secure to the wife such gross sum of money or annual sum for any term not exceeding her life as having regard to her fortune if any to the ability of the husband and to the conduct of the parties the court may deem to be reasonable
On any decree for divorce or nullity of marriage the court may if it thinks fit by order direct the husband to pay to the wife during their joint lives such monthly or weekly sum for maintenance and support of the wife as the court may think reasonable and any such order may either be in addition to or be instead of an order made under the last foregoing sub section
 We have also been referred to some other English statutes where this distinction has been manintained
In case of a direction for payment during the joint lives there can be no dispute that on the death of one of the spouses the obligation under the decree ceases
English Courts have taken the view that even where a direction is for payment during the life of the wife it abates with the death of the husband
In paragraph 891 Vol 13 Halsbsury  Laws of England 4th Edn it has been said that in the absence of an order directing security for periodical payments the court has no jurisdiction to order a man s personal representatives to make payments for his children after his death The decision in Sugden vs Sugden1 of the Court of Appeal has been relied upon for this view
Lord Denning in the leading judgment said There is no difficulty in an ordinary action in determining when the right or liability accrued due but there is more difficulty in proceedings in the Divorce Court
In that court there is no right to maintenance or to a secured provision or the life until the court R makes an order directing it
There is therefore no cause of action for such matters until an order is made
In 521 order that the cause of action should subsist at the death the right under the order must itself have accrued at the time of death
Thus a cause of action subsists against a husband for arrears of maintenance due at his death but not for later payments
 This view of proceedings in the Divorce Court is supported by the decision of Hodson J in Dipple vs Dipple1 where he pointed out that all that the wife had was the hope that the court would in its discretion order a secured provision 
In the present case there was no right or liability subsisting against the father at the time of his death
He had paid everything up to that time
If there had been any arrears of maintence payable by him at that time then no doubt they would be payable by his estate after his death under section 1 1 of the Act of 1934 but there were no arrears
There was nothing therefore to come within the Act of 1934 at all
The right to maintenance after his death must come from the terms of the order itself or not at all Under the order in Sugden s case the maintenance of 1s
a year for the wife was payable by the husband during their joint lives
On the terms of the order therefore the liability was to come to an end upon the death of the husband
We have no difficulty in accepting the submission of Mr Ghosh for the appellant that matrimonial proceedings abate on the death of either party and legal representatives cannot be brought on record and the proceedings cannot be continued any further
Bowen LJ in Stanhope vs Stanhope1 very appropriately said A man can no more be divorced after his death than he can after his death be married or sentenced to death
Marriage is a union of husband and wife for their joint lives unless it be dissolved sooner and the court cannot dissolve a union which has already been determined
No person can dissolve a marriage which is dissolved by act of God
If a decree nisi is made and the husband dies before it is made absolute he dies while he is still at law a husband and his wife becomes his widow
Thus how can a decree be made which would displace a dissolution of the marriage by death and untie a knot that no longer exists  How can a woman once a widow 522 be converted into a divorcee unless there is some enactment enabling the court such a retrospective order The question to ask at this stage is while a matrimonial proceeding comes to an end with the death of either spouse where the proceeding has terminated and a decree has emerged would the decree also abate
There can be no manner of doubt and it has also been fairly conceded before us that where maintenance has been made a charge on the husband s estate the death of the husband would not at all affect the decree and notwithstanding such death the estate can be proceeded against for realisation of the maintenance dues for post death period
Mr Ghosh had to concede that if there be a decree arising out of a civil action death would not result in wiping out the decree
If decree arising not out of a matrimonial dispute would not abate and the estate of the judgment debtor would be liable for its satisfaction and a decree for alimony or maintenance would not abate when the same is charged upon the husband s estate we asked Mr Ghosh to indicate the justification for his contention that a decree for maintenance or alimony not charged upon the husband s estate would abate with the death of the husband
Apart from relying on the English decisions Mr Ghosh was not able to indicate any independent reason
We have not been able to find any legal principle in the cases placed before us except that the view taken in the English Courts appears to be based on precedents
There is no rationality in the contention that a decree for maintenance or alimony gets extinguished with the death of the husband when any other decree even though not charged on the husband s property would not get so extinguished
A decree against the husband is executable against the estate of the husband in the hands of the heirs and there is no personal liability
In law a maintenance decree would not make any difference
The decree indicates that maintenance was payable during the life time of the widow
To make such a decree contingent upon the life of the husband is contrary to the terms and the spirit of the decree and the appellant has taken a stand that though the widow is alive the decree obtained by her would become ineffective with the passing away of the husband
523 The Special Marriage Act is a statute of 1954 made by the Indian Parliament after independence
For the interpreation of a provision of this statute there is no warrant to be guided by English decisions
There is no ambiguity in section 37 for the interpretation of which it is necessary to go beyond the provision itself
It is one of the settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit the benefits under a decree to be lost unless there be any special reason for it
In incorporating a provision like section 37 in the Act Parliament intended to protect the wife at the time of divorce by providing for payment of maintenance
If the husband has left behind an estate at the time of his death there can be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying the decree
We are incline1 to agree with the view of the Calcutta High Court that the decree in the instant case was not extinguished with the death of Prafulla Kumar Mitra and the assets left behind by him are liable to be proceeded against in the hands of his legal heirs for satisfaction of the decree for maintenance
Before the Calcutta High Court it had been contended that the phrase at the instance of either party  occurring in sub section
2 of section 37 would cover the husband and the wife and no one else and on this meaning given to the phrase support was sought for the contention that the order of maintenance was intended to continue only during the life of the husband
This question was left open by the High Court
We however see no justification for the view that the phrase should be confined to the spouses
There is no dispute that the order for maintenance can be varied or rescinded with change of circumstances
Sub section 3 clearly provides that on remarriage or on a finding that the wife is not leading a chaste life the order of maintenance can be rescinded
Upon the husband s death his estate passes on to his legal heirs and the intention of the Legislature being clear that upon remarriage or non leading of a chaste life the benefit conferred by the statute should empire and the estate should become free from the liability of satisfying the decree for maintenance the application for varying modifying or rescinding the order for maintenance can be made even by those who have succeeded to the husband s estate and the estate can be freed from the liability
There is nothing in the provision to support the view that the words either party  should be confined to the 524 spouses
Examining the scheme of the statute and the purpose for which such a provision has been made we are inclined to agree with the learned counsel for the respondent that the words either party  would also cover the legal heirs who have stepped into the shoes of the spouses under the law and such persons would also be competent to ask for variation modification or rescission of the order for maintenance
That term would also include the holders of the estate with lawful title for the time being
Once such a meaning is given to the phrase the support which Mr Ghosh wanted to draw by restricting the phrase to spouses and contending that it indicated the legislative intention that the order of maintenance should survive only until the life time of the husband loses force
We accordingly dismiss the appeal and confirm the order of Calcutta High Court
The respondent shall be entitled to her costs throughout


Summary:
Respondent Dorothea and one Prafulla Kumar Mitra were married under the Special Marriage Act 1872 in January 1952
Respondent asked for a divorce in 1961 and obtained a decree on May 2 1962 and as per the decree she was to be paid Rs 3000 per month as alimony until she remarries
Respondent levied execution of the decree and the same was compromised and payment of arrears was undertaken to be made in instalments
On March 31 1965 Mitra executed a will but made no provision therein for the satisfaction of the maintenance decree
He died on April 3 1965 and the appellant who was the executrix under the will got it duty probated
Since no payment was made by the executrix after December 1975 rcspmldent filed execution in Matrimoniai Case 1 of 1977 claiming recovery of Rs 1950000
Appellant objected to the claim under Section 47 of the Code of Civil Procedure by pleading that the order of alimony not being charged the claim under decree for alimony abated with the death of Mitra
The executing court overruled the objection and the Division Bench of the Calcutta High Court while dismissing the revision petition however granted certificate of appeal to this Court
Dismissing the appeal the Court  HELD 11
The language of Section 37 does not warrant the conclusion that there is extinguishment of the decree for alimony upon the death of the judgment debtor husband
519 G 12
The Special Marriage Act is a statute of 1954 made by the Indian Parliament after independence
There is no ambiguity in Section 37 for the interpretation of which it is necessary to go beyond the provision itself
It is one of the settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit the benefits under a decree 517 to be lost unless there be Act any special reason for it
In incorporating a provision like Section 37 in the Act Parliament intended to protect the wife at the time of divorce by providing for payment of maintenance
If the husband has left behind an estate at the time of his death there can be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying  the decree
523 A C 13
There is no doubt that matrimonial Proceedings abate on the death of either spouse and legal representatives cannot be brought on record and the proceedings cannot be continued any further and where maintenance has been made a charge on the husband s estate the death of the husband would not at all effect the decree and notwithstanding such death the estate can be proceeded against for realisation of the maintenance dues for post death period
But there is no rationality in the contention that where the matrimonial proceedings have terminated during the lifetime of the husband and a decree has emerged such a decree for maintence or alimony gets extinguished with the death of the husband when any other decree even though not charged on the husband s property would not get so extinguished
A decrees against the husband is executable against the estate of the husband in the hands of the heirs and  there is no personal liability
In law a maintenance decree would not make any difference
The decree indicates that maintenance was payable during the life time of the widow
To make such a decree contingent upon the life of the husband is contrary to the terms and the spirit of the decree
Therefore the assets left behind by Mitra are liable to be proceeded against in the hands of his legal heirs for satisfaction of the decree for maintenance
522 C H 2
The phrase at the instance of either party occurring in sub section 2 of Section 37 of the Act are not confined to the spouses only
Sub section 3 clearly provides that on remarriage or on a finding that the wife is not leading a chaste life the order of maintenance can be rescinded
Upon the husband s death his estate passes on to his legal heirs and intention of the Legislature being clear that upon remarriage or non leading of a chaste life the benefit conferred by the statute should expire and the estate should become free from the liability of satisfying the decree for maintenance the application for varying
modifying or rescinding the order for maintenance can be made even by those who have succeeded to the husband s estate and the estate can be freed from the liability
Examining the scheme of the statute and the purpose for which such a provision has been made it is clear that the words either party  would also cover the legal heirs who have stepped into the shoes of the spouses under the law and such persons would also be competent to ask for variation modification or rescission of the order for maintenance
That term would also include the holders of the estate with lawful title for the time being
523 E H 524 A B