Read Time: 04 minutes

Synopsis

The Bombay High Court recently held that the right to seek divorce is a personal right and it dies with the death of an individual.

The division bench of the high court at Aurangabad, comprising Justice Mangesh Patil and Justice Shailesh Brahme, was hearing an appeal filed by the mother and brothers of a man who died after filing for divorce.

The deceased and his wife filed for divorce in October 2020. Subsequently, the husband died during COVID. The wife then filed for withdrawal of the petition in light of her husband's death.

The mother and brothers of the deceased opposed the withdrawal on the grounds that, as legal heirs, they would contest the litigation.

However, the family court rejected the contentions of the mother and brothers and allowed the withdrawal, prompting them to file an appeal before the high court.

Before the high court, they contended that the wife had already received half of the Rs 2.50 lakh settlement amount, and only a procedural second motion under Section 13-B (2) of the Hindu Marriage Act, 1956, remained.

They also argued that the deceased had earned the right to divorce by mutual consent through substantial performance of the settlement.

The high court rejected the argument, stating that under Section 13-B, divorce by mutual consent requires the filing of a second motion in order to earn the right to divorce. This was not applicable in this case, as the man had died before the filing of the second motion.

Therefore, the bench while dismissing the appeal said that, "..since the right to seek divorce was a personal right of deceased Aniket and the principle being actio personalis moritur cum persona, cause of action would not survive to the appellants and the petition for divorce by mutual consent would stand abated as has been correctly concluded by the learned Judge in the impugned order," the order reads. 

Case title: Rajshree Arun Dhatrak & Ors vs Shalaka Aniket Dhatrak