1 fca133-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.133 OF 2010 Ms. Tanuja Vinaychandra Dongre ..Appellant. V/s. Mr. Vinaychandra Sharadchandra Dongre since deceased through Lrs. Abhishek Vinaychandra Dongre & Ors. ..Respondents. Ms. Neela Gokhale i/b. Hitesh Vyas for appellant. Mr. Nikhil Karnavat for respondent Nos.1(a) to 1(c). CORAM : B.H. MARLAPALLE AND U.D.SALVI, JJ. DATED : 11TH OCTOBER, 2010 P.C. :- ( PER U.D. SALVI, J.) 1. Heard. Admit. 2. With the consent of the parties, the appeal is finally heard. 3. "Death relieves and relieves of all human bondage" -- this perhaps was not in the contemplation of the learned Judge of the Family Court No.4, Pune while passing a decree for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 in Petition No. 2 fca133-10 661/2003 when one of the petitioner - husband of the appellant had died. This has prompted the present appeal. 4. The appellant had filed a petition for divorce against her husband Vinaychandra Sharadchandra Dongre on the ground of cruelty. The respondent resisted the said petition for divorce. During the pendency of the said petition, the parties thereto decided to seek divorce by mutual consent and accordingly prayed for conversion of the said petition for divorce on the ground of cruelty into a petition for divorce by mutual consent vide application dated 09/01/2010 Exhibit-246. Permission to convert the said petition into a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 was granted and the other issues incidential to the dissolution of the marriage were left to be decided on merits. 5. Perusal of the impugned judgment reveals that the parties to the said petition were examined with reference to the application Exhibit- 246 and the affidavits in support thereof Exhibits 247 & 248. The parties on examination admitted the contents thereof to be true and correct and confirmed the decision to take divorce by mutual consent. It further reveals that the Counselor's report at Exhibit 242 further endorsed the fact that the parties had agreed to take divorce by mutual consent. It appears that the learned Judge discovered from the pleadings of both 3 fca133-10 the parties that they were residing separately since September, 2006, more than a period of one year i.e. the period exceeding the period required under Section 13B of the said Act for the parties to become eligible for moving such an application. Thus, the learned Judge found that all the ingredients of Section 13B of the Act were satisfied. 6. The learned Judge, despite being informed of the demise of the respondent on 23/04/2010 vide pursis Exhibits 259 & 260 filed on behalf of the parties, proceeded to pass a decree of divorce by mutual consent on 04/05/2010. According to the learned Judge, the decree for divorce by mutual consent was to be passed on the same day i.e. the date of examining the parties, but the hearing of the petition with respect to the other issues continued further, and the case was to be fixed for arguments and decision on merits thereafter. The learned Judge did acknowledge that on account of the demise of the respondent pending disputes and issues to be decided on merits stood abated. However, the learned Judge further observed that as consent was never withdrawn by any of the parties till the death of the respondent, the decree of divorce by mutual consent had to be passed. 7. Obviously, what was being adjudicated before the learned Judge of the Family Court on merits was the right of dissolution of marriage. Such a right by its nature being personal one came to an end 4 fca133-10 with the demise of the respondent - one of the party to the marriage and as a consequences thereof the petition in that regard also came to an end. 8. In our opinion, matrimonial ties are snapped by passing of the decree of divorce by the Court and not on account of the decision taken by the parties to obtain divorce by mutual consent or upon an agreement to dissolve the marriage, unless the custom or usage prevailing in the community to which the parties belong to permits such severance of ties. This can be seen from the provisions of Section 13, 13B read with Section 29(2) of the Hindu Marriage Act, 1955. Section 15 of the said Act, which permits either of the parties to the marriage to marry again upon the expiry of the time for appeal against a decree for divorce or upon the said appeal getting dismissed, implicitly suggests that the divorce comes into effect only after the passing of the decree for divorce. Likewise, Section 5(i) of the said Act, which stipulates a condition that there shall be no spouse living at the time of the marriage as a condition precedent for solemnization of marriage between two Hindus, suggests that upon a death of one of the spouses, the other is free to enter into matrimonial alliance, as death snaps the matrimonial ties previously existing. This also can be perceived from the legal consequence of death of an individual spouse resulting in crystalisation of the rights of legal heirs or legatees, as the case may be, of such 5 fca133-10 spouse to his or her estate and from immutable nature of the consequence, which is not susceptible to reversion at the hands of Court of law. 9. In the instant case, the respondent expired before the Family Court had passed a decree for divorce. Consequently, the matrimonial ties between the parties were snapped upon the death of the respondent. Nothing, therefore, remained for the Court to do anything more than what the death had done. The learned Judge of the Family Court, therefore, could not have passed a decree for divorce under Section 13B of the Hindu Marriage Act, 1955 after the death of one of the parties to the marriage and the impugned decree of divorce appears to be preposterous. 10. After hearing the learned counsel Ms. Gokhale for the appellant and upon considering the annexures including a copy of the impugned judgment annexed to the appeal memo, it became manifestly clear that the learned Judge of the Family Court No.4 did make such patent error in law of passing a decree of divorce after the demise of one of the spouses. The grievance of the appellant in that regard can be redressed at the very threshold of this appeal by effecting appropriate correction. Hence, the appeal is allowed. The judgment and decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act 6 fca133-10 passed by the learned Judge of the Family Court No.4, Pune on 04/05/2010 is set aside and the petition No.661/2003 stands dismissed as abated. 11. Parites to bear their own costs. (U.D.SALVI, J.) (B.H. MARLAPALLE, J.)