Void or voidable marriage:decree after death?

If the spouse dies during the pendency of the petition, then the living party can continue the petition as it affects his/her rights, marital status by bringing the lrs of the deceased on record, so a decree can be obtained. But I am not sure whether such a petition can be filed after the only after the death of the spouse, directly against the lrs.

This is actually a simple question that has a precise legal answer:

 

The spouse is not "former" until the divorce is FINAL. So the answer to your question is that the surviving spouse becomes a widow/er and the marriage ends. There is no divorce. You will not ever be divorced from that person as you cannot divorce a dead person to whom you are no longer married but will be decreed to be widow/er as tyhe case may be.

 

Reasonoing:

Can a wife really be granted divorce if her husband is already dead? That is the question that the Mumbai High Court had to answer but just couldn’t wrap its head around.The problem that the judges in the Mumbai court had to face had a lot to do with the fact that the Pune high court has just recently passed an order that apparently goes on to allow a wife to be allowed a divorce after the death of her husband.

 

Terming the Pune judgement as “preposterous”, a Bench consisting of Justices B H Marlapalle and U.D.Salvi set it aside on Moday.

 

The precedent in this case is pertaining to the case of a Pune-based woman who was married for almost 20 years only to loose her husband in an accident during their proceedings. The couple had had a love marriage and even have two minor teenagers.

 

This family is known to be fairly affluent and had been estranged for over five years now. It was in 2005 that the wife, who is in her mid-40s, filed a petition which cited mental and physical cruelty as the grounds for divorce as mentioned in the Hindu Marriage Act. Meenal (name changed) sought maintenance from her husband, which was also the main point of contention between the couple.

 

 

Following repeated attempts as mediation and reconciliation, the couple finally requested the judge to allow them to convert their plea to that of a divorce by mutual consent. This request was granted by the presiding judge in February 2010.

 

 

The family court allowed them to convert their contested separation into a plea where both parties agreed upon the various terms and condition of their separation amicably. The mutual consent petition was scheduled to be head in the month of May. Unfortunately in April, the Arun (name changed), who was in his early 50s, met with a freak accident. This accident occurred on one of Pune’s busiest roads. He was walking and lost his life in an accident between a truck and a car.

 

After this development, Meenal went to the judiciary to terminate the case. Her lawyer, Neela Gokhale, told the court that in this uncontested case, the couple continues to remain married till the decree is passed. Since Arun had died during the proceedings, it was the lawyer’s belief that her client was now a widow.

 

The presiding judge R V Deshmukh rejected this inference, and stated that since the case was agreed upon by both parties, there was no requirement for the decree to be postponed any further. His official words were that “nothing more needed to be done”. He then proceeded to grant Meenal divorce from her husband despite his death.

 

Back in Mumbai, when Justice Marlapalle was made to read the appeal papers by the wife, he expressed his shock at the verdict of the Pune court’s decision.

 

He further went on to grant Meenal the status of a widow, which she personally preferred over that of a divorcée.

 

 

Remark:

Let us know what you think about this verdict where a wife is granted divorce after the death of her husband by your comments as facts of yours and the above reasonign are m ore or less on the same footings!

 

Until and unless the court give any decree they are husband and wife.so if any of the two dies the other wud avail all rights and responsibilities that any other normal spouse gets.

correct adv. tajob

1. NK Assumi is asking whether a decree for NULLITY (Not divorce) can be sought  after the death of the spouse.

2. Ms Archana is entirely correct in expressing the doubt.

3. Nullity has got more severe consequences than divorce. I personally think that even after the death of the spouse one should be able to seek a decree of nullity as that decree will disentitle the relatives of the other spouse from succession etc, and have other consequences also. Divorce is not retrospective but nullity is. Marrige will be void ab initio.

@ Dr V. Nageswara Rao,

 

The marriages which under the Act are void and voidable have been specified in S/s. 11 and 12. The former S. is specifically prospective and a marriage solemnized in contravention of the conditions specified in Clauses (i), (iv) and (v) of S. 5 has been declared to be null and void. The latter section is both retrospective and prospective and also governs a marriage solemnized before the commencement of the Act.

 

 

S. 5 was not retrospective and as such its provisions could not apply to a marriage solemnized prior to the commencement of the Act. The contention is correct only partially. An infraction of some of the provisions of that section has been mentioned in S. 12 as a ground for annulment of even a marriage solemnized prior to the coining, into force of the Act and to that extent those provisions have retrospective effect. The other provisions of S. 5, however, are only prospective in opera-lion. I am, therefore, of the opinion that under S. 12 of the Hindu Marriage Act, 1955 the ld. Adv. (Sh. Assumi) proposed client is not entitled to a decree of nullity.

 

 

Moreover further discussed moot point by you is somehow devoid of force, but I (somehow) agree to your kindself's prudent views (i.e. que. was on on nullity and not divorce which was argued by my first post as starter).

Sir/s,

With due respects to the legal luminaries, this discussion really is enlightening. I am impressed.

Thanks,

Kishor Mehta

@Tejobsinfia:

1. With due respect, there is nothiong in the questiopn of NK Assumi to suggest that the marriage in the present case took plcae prior to HM Act of 1955.

2. The Act is 56 years old and if the marriage has taken place before 1955, the couple would be around 80 years now.

3. So, we can presume that the marriage has taken place after the Act has come into force.

4. Of course, you are right about retroactivity of some provisions of the Act.