Case: Mrs. Aruna Basu Mullick Vs. Mrs. Dorothea Mitra

This appeal by certificate from the Calcutta High Court raises the question whether a decree for permanent alimony passed under section 37 ofthe Special Marriage Act, 1954 (hereinafter referred to as the Act), is wiped out with the death of the husbandDorothea 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 petitioners (Dorothea Mitras) marriage with the respondent Prafulla Kumar Mitra be dissolved by a decree of divorce. The petitioner do get Rs. 300 p.m. 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 installments. Prafulla Kumar Mitra executed a Will on March 31, 1965, but made no provision therein for satisfaction of the maintenance decree. He died on April, 3, 1965, and the appellant who was the executrix under the Will got it dulyis 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. 1/77 claiming recovery of arrears of Rs. 19, 500. Appellant objected to the claim under s. 47 of theCode 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.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 s. 37 of the Act.

Reasoning: 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 maintenance payable by him at that time, then no doubt they would be payable by his estate after his death under s. 1 (1) of the Act of 1934; but there were no arrears. There was nothing, therefore, to come within the Act of 1 934 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 Sugdens 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 theare incline(1 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-s. (2) of s. 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 husbands 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 husbands 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 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