Allowed

Smt. Ramani Chacko v. Sri. K. S. Chacko

Karnataka HC19 Jun 2024WP/1907/2023

Case brief

AI extract

What is this about?

Wife challenged dismissal of her miscellaneous petition to restore proceedings against an ex-parte divorce decree, dismissed below after husband's death on grounds of abatement. Relying on Yallawwa v. Shantavva, High Court held such application must be decided on merits despite death of a spouse and set aside the Family Court order.

What did the court decide?

Family Court order in Misc.No.84/2019 dated 04.08.2022 set aside; Court below directed to decide the MC on merits.

Smt. Ramani Chacko Vs Sri. K. S. Chacko — Matrimonial and Divorce | Karnataka HC (2024)

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NC: 2024:KHC:21751 WP No. 1907 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 1907 OF 2023 (GM-FC)

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BETWEEN:

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SMT. RAMANI CHACKO W/O. K.S.CHACKO AGED ABOUT 54 YEARS R/AT NO. 45, CAUVERY LAYOUT MARIYAPPANAPALYA KASARAHALLI, HEBBALA BENGALURU -560 024

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…PETITIONER

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(BY SRI. TOMY SEBASTIAN, SENIOR ADVOCATE FOR SRI. MELANIE SEBASTIAN, ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SRI. K. S. CHACKO S/O SAMUEL CHACKO AGED ABOUT 56 YEARS R/AT NO.9, CHAMUNDI COMPLEX OUTER RING ROAD MARUTHI NAGAR BENGALURU -560 094 (DEAD BY LR'S)

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SMT. TINA CHACKO D/O K.S.CHACKO AGED ABOUT 34 YEARS R/AT NO. 45, CAUVERY LAYOUT MARIYAPPANAPALYA KASARAHALLI, HEBBALA BENGALURU -560 024

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…RESPONDENTS

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(BY SRI.ADARSH, ADVOCATE FOR R2)

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NC: 2024:KHC:21751 WP No. 1907 of 2023

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ANNEXURE-A ORDER DATED 04/08/2022 PASSED BY THE HON’BLE III ADDITIONAL FAMILY JUDGE, FAMILY COURT IN MISCELLANEOUS NO. 84/2019 AND ISSUE A WRIT IN THE NATURE OF CERTIORARI.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The present writ petition is filed by the petitioner/wife aggrieved by the order passed in Miscellaneous No.84/2019 dated 04.08.2022 by the III Additional Principal Judge, Family Court.

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The parties are referred to as the husband and wife for the sake of convenience.

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The husband had filed M.C.No.762/2008 seeking divorce and ex-parte decree of divorce is passed by the Court below on 05.09.2009. Later, in the month of April 2019, the wife came to know about the ex-parte decree of divorce granted in M.C.No.762/2008 when the husband filed a complaint against the wife and in the said complaint, there was a mention about the decree of divorce dissolving the marriage.

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The wife filed a miscellaneous petition in Misc.No.84/2019 praying to restore the case in M.C.No.762/2008 and the Court

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3 - NC: 2024:KHC:21751 WP No. 1907 of 2023

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below had dismissed the said miscellaneous petition on the ground that after the dissolution of marriage between the petitioner and respondent, the husband died on 10.04.2020 and accordingly, directed to return original documents to the concerned as per rules. Aggrieved thereby, the wife is before this Court.

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Learned Senior counsel appearing for the wife submits that just because of the husband died, the proceedings would not get automatically abated. It is submitted that by virtue of the said decree obtained by the husband, certain legal consequences would follow and the wife has to have an opportunity to pursue her appeal. He had relied on the judgment of the Hon'ble Apex Court in the case of Yallawwa Vs. Shantavva¹ , wherein the Hon'ble Apex Court considering the judgment of the several High Courts had taken the view that though the divorce proceedings are purely between the wife and husband, the order that is passed will have a straight impact on the estate of the deceased husband or wife as the case may be and considering all these legal consequences to

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1 (1997) 11 SCC 159

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4 - NC: 2024:KHC:21751 WP No. 1907 of 2023

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follow, after the death of one of the spouse, the proceedings will not be abated. The Court below had also observed that once such remedy is availed and in case where an ex-parte order is passed and if it is restored, those proceedings cannot be taken forward. It is submitted that the miscellaneous petition that is filed by the wife should have been decided by the Court below on the merits of it and it should not have been dismissed on the ground that the same is abated.

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Learned counsel appearing for the respondents do not

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dispute the said legal provision as laid down by the Hon'ble Apex Court in the case of Yallawwa Vs. Shantavva referred supra.

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Having heard the learned Senior Counsel appearing

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for the wife and the learned counsel appearing for the respondents, perused the entire material on record. In the light of the judgment of the Hon'ble Apex court in the case of Yallawwa Vs. Shantavva referred supra, the application that is filed by the wife after the death of the husband for setting aside the ex-parte decree has to be decided on the merits and the same cannot be dismissed.

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NC: 2024:KHC:21751 WP No. 1907 of 2023

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ORDER

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i. The order passed in Miscellaneous No.84/2019 dated 04.08.2022 by the III Additional Principal Judge, Family Court is set aside.

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ii. The Court below shall decide the MC on the merits of the matter.

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iii. The writ petition is allowed .

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iv. All pending IA’s if any shall stand closed.

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SD/JUDGE

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MEG

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List No.: 1 Sl No.: 1

Smt. Ramani Chacko v. Sri. K. S. Chacko

Case brief

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Smt. Ramani Chacko v. Sri. K. S. Chacko

Case brief

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