Court: High Court of Judicature at Bombay, Bench at Aurangabad
Case Number: Family Court Appeal No. 37 of 2023
Appellants: Rajashree Arun Dhatrak (Mother), Abhijeet Arun Dhatrak (Brother), Anurag Arun Dhatrak (Brother)
Respondent: Shalaka Aniket Dhatrak (Wife of the deceased)
Case Summary:
The appellants, legal heirs of Aniket Arun Dhatrak, filed an appeal against the respondent, Shalaka Aniket Dhatrak, in a case involving a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. The primary issue is whether the right to sue survives to the deceased husband’s legal heirs when the husband dies before the second motion under Section 13-B(2) is moved.
Aniket and Shalaka filed for divorce by mutual consent, agreeing that Aniket would pay Shalaka ₹5,00,000, of which ₹2,50,000 was paid at the petition's filing. Aniket passed away due to COVID-19 before the second motion could be filed. Subsequently, Shalaka withdrew her consent and requested the petition be disposed of. The appellants sought to be substituted as parties and requested Shalaka to return the ₹2,50,000 already paid.
Arguments:
Appellants: Argued that the right to sue survived and Shalaka's withdrawal of consent amounted to unjust enrichment. They cited various case laws to support their position that a substantial part of the agreement had been performed, and the right to seek divorce by mutual consent should survive Aniket's death.
Respondent: Argued that the right to sue does not survive post-Aniket's death, as the right to seek divorce is personal. The second motion was never moved, and no decree was passed, so the appellants have no standing to continue the case.
Court's Findings:
The court examined Section 13-B of the Hindu Marriage Act, emphasizing that the second motion is a condition precedent for passing a divorce decree. The court referenced the decisions in Hitesh Bhatnagar v. Deepa Bhatnagar (2011) and Sureshta Devi v. Om Prakash (1991), which highlight that mutual consent must exist at the time of the second motion. The right to sue does not survive to the legal heirs in the absence of the second motion.
Conclusion:
The court found no fault in the Family Court's order refusing the appellants permission to substitute as legal heirs and dismissing the divorce petition due to lack of mutual consent at the time required. The appellants' request for Shalaka to return the ₹2,50,000 was also rejected.
Laws and Articles Referred:
- Hindu Marriage Act, 1955, Section 13-B
- Code of Civil Procedure, Order XXII Rule 3
Cases Cited:
-Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari (2022)
- Yallawwa v. Shantavva (1997)
- Sureshta Devi v. Om Prakash (1991)
- Hitesh Bhatnagar v. Deepa Bhatnagar (2011)
- Smruti Pahariya v. Sanjay Pahariya (2009)