Ex-Parte Divorce Decree Can't Be Set Aside After Spouse's Death: Allahabad High Court

The Allahabad High Court has held that an ex-parte divorce decree cannot be set aside after spouse's death.

The bench of Justice Arindam Sinha and Justice Satya Veer Singh relied on Smt. Yallawwa vs. Smt. Shantavva (1997) where the Supreme Court gave directions regarding maintainability of the application for setting aside the ex-parte decree in the matrimonial case against a deceased spouse

In the case at hand, Respondent no.1's marriage with her husband stood dissolved by ex-parte judgment dated 13th November, 1991. Thereafter, the husband remarried and had a separate family. He died in April 2023. His second wife-appellant no.1 approached the employer as his widow and was granted the benefits. Subsequently, the first wife also approached the employer seeking benefits which were denied on grounds that they were already granted to his lawful widow.

Thereafter, the first wife approached the Family Court for setting aside of the ex-parte decree. In October 2025, the delay was condoned and the ex-parte decree was set aside. The matrimonial dispute was restored to its original file and number. This order was challenged in appeal by the second wife and her children before the High Court.

The first wife pleaded non-issuance of summons of the divorce proceedings to her for setting aside the ex-parte order.

Accordingly, the High Court framed the following question of law:

“The short point to be answered is whether a judgment decreeing a matrimonial suit can be set aside under rule 13 order IX, Code of Civil Procedure, 1908, where on the date of application the decree holder was dead and the right to sue of appellants (no.1) seeking setting aside the judgment dissolving the marriage, does not survive."

The Court observed that the application for setting aside the ex-parte divorce decree was made more than 30 years after the second marriage of the deceased and just a month after his death.

Holding that the respondent could not prove her case regarding summons not being issued to her in the divorce proceedings, the Court held

“Restoration of the original matrimonial case in such circumstances renders respondent no. 1 to have status of widow, thereby displacing respondent no. 1 completely, without her being able to say anything in respect of the allegations on questions of fact regarding service of the summons nor the substituted service.”

The Court held that since the marriage of the appellant was solemnized after the divorce decree of the deceased and the respondent was passed, the marriage was legal.

In Smt. Yallawwa (supra) the Supreme Court had held that the proceedings of divorce would stand abated upon the death of either party to the marriage and cannot be continued at the behest of the legal heirs.

“Respondents have not been otherwise able to answer in the affirmative, the question of law we framed. In our view the answer is in the negative. The application of respondent no. 1 for setting aside the ex-parte judgment and decree dated 13th November, 1991, with purpose of thereby erasing the second marriage solemnized on 31st December, 1991, the application filed more than 30 years after date of the decree but soon after death of the deceased, was not maintainable.”

The Court observed that the even though the first wife claimed that her husband was residing with her till he died, the argument regarding fraud being played on her by the deceased cannot be accepted especially since she filed the recall application a month after his death.

Accordingly, the appeal by the second wife was allowed and the order of the Family Court was set aside.

Case Title: Smt. Geeta Rani And 2 Others Versus Smt. Maya Devi And 4 Others

Counsel for Appellant(s) : Ratnesh Kumar Pandey, Sanjay Kumar Mishra

Counsel for Respondent(s) : Rajjan Singh, Shreya Gupta, Shreyas Srivastava

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