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PETITIONER: MRS. ARUNA BASU MULLICK

       Vs.

RESPONDENT: MRS. DOROTHEA MITRA

DATE OF JUDGMENT02/08/1983

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH BHAGWATI, P.N. SEN, AMARENDRA NATH (J)

CITATION:  1983 AIR  916            1983 SCR  (3) 516  1983 SCC  (3) 522        1983 SCALE  (2)52  CITATOR INFO :  RF         1983 SC1201  (3)

ACT:      Alimony-Permanent  alimony,   a  decree  for-Whether  a decree for  permanent alimony passed under Section 37 of the Special Marriage  Act, 1954,  is wiped out with the death of the husband, judgment-debtor.      Words and  Phrases- "In  the  circumstances  of  either party" and  "at the  instance of  either party" occurring in clause (2)  of Section 37 of the Special Marriage Act, 1954, meaning of-Whether referable only to the spouses.

HEADNOTE:      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.  300.0 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. 19,500.00. 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 :1:1.  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]      1:2. The Special Marriage Act is a statute of 1954 made

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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]      1:3. 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]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1997 of 1980.      From the  Judgment and order the 25th April 1980 of the Calcutta High Court in C.R. No. 1529 of 1979. 518      Shanker Ghose, Sobhan Tagore and P.K. Mukherjee for the Appellant.      L.N. Sinha,  Attorney General,  V. Subba  Rao and  R.S. Poddar for the Respondent.      R.B. 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  Special Marriage Act,  1954 (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 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 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.  1/77  claiming  recovery  of  arrears  of  Rs.  19,500. Appellant objected  to the  claim under s. 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 s. 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;

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         (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  ss. 19,  20 and 22 of the English Matrimonial Causes Act,  1950, except  that there  is  nn  corresponding provision in  the English  Act for  sub-s. (3) of the Indian Act. A  close look  at sub-ss.  (2) and  (3) of s. 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.           (3). 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 v. Sugden,(1) 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

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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 v. Dipple,(1) 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 s.  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,   L.J.  in   Stanhope   v. Stanhope,(1) 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

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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  s. 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 s.  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 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 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

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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. S.R.                                        Appeal dismissed 525