Holding

A decree for permanent alimony under Section 37 does not get extinguished by the death of the husband; the estate is liable for the maintenance, and "either party" includes the legal heirs.

Summary

Mrs. Dorothea Mitra obtained a decree of divorce in 1962 granting her permanent alimony of Rs.300 per month until remarriage, under Section 37 of the Special Marriage Act, 1954. The husband, Prafulla Kumar Mitra, died in 1965 without providing for the decree in his will, and the executrix failed to continue payments after December 1975, prompting the respondent to seek execution of arrears. The central issue was whether a decree for permanent alimony extinguishes upon the death of the judgment‑debtor husband and how the phrase "at the instance of either party" in sub‑section (2) of Section 37 should be interpreted. The Supreme Court held that the decree does not die with the husband; the estate remains liable for post‑death maintenance, and the words "either party" include legal heirs who can seek variation or rescission. Consequently, the appeal by the executrix was dismissed and the order of the Calcutta High Court confirming the decree was affirmed.

Issues considered

Whether a decree for permanent alimony under Section 37 of the Special Marriage Act, 1954 is extinguished by the death of the husband (judgment‑debtor).
Whether the phrase "at the instance of either party" in sub‑section (2) of Section 37 is limited to the spouses or extends to legal heirs.

Legislation cited

Code of Civil Procedures. 47
Special Marriage Act, 1954s. 37

Subjects

permanent alimonySpecial Marriage Actdecree extinguishmentdeath of judgment debtormaintenance executioninterpretation of statutory languagelegal heirsvariation of maintenance order

Judgment

516

MRS. A RUNA BASU MULLICK
A
v.

MRS. DOROTHEA MITRA

August 2, 1983
B
[P. N. BHAGWATi, AMARENDI.lA NATH ,SEN AND
RANGANATH MISI.lA, JJ.)

Alimony-Permanent alimony, a decree for-Whether a decree for perma~·
nent alin1ony passed under Sectiou 37 of the Special Marr;age Act, 1954, is wiped
c out with the death of the husaand,judg11u1nt~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, rneaning of.:..Whether referable 011/y to the spouses.

Repondcnt· Dorothea and one Prafulla Kumar Mitra were married under
D the Special Marriage Act, 1872; in January 1952. Respondent asked for a
divon.~.e in 1961 and obtained a decree on t\-lay 2, 1962 and as per tlie decree
she was to be ·paid Rs. 300.01 per month as alimony until she remarries.
Respondent levied execUtion of the decree and the same was cornPromised 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
E · of tl;e maintenance decr".e. He died on April 3, 1965 and the appeilant who
was the executrix under the will got it duty probated. Since no payment was
n1ade by the executrix after December 1975, respondent filed execution in
Matrimonial Case 1 of 1977 c·Jain1ing 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 M.itra. The executing court overruled
F the objection and the :Oivision Bench of the Calcutta High Court, while
dismissing the revisioll' petition, however, granted certificate of appeal to
.this Court.

Dismissing the appeal, the Court

G
HELD : 1:1. The langua~e of Section 37 does not warrant the conClu-
.sion that there is extinguishment of the decree for alimony upon the death of
the judgment debtor husband. [519 Gj

1:2. The Special Marriage Act is a statute of 1954 made by the Indian
H 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
f!;\VOUf <?f sustainin~ a decree and should not permit the benefits under a decree
/\RUN BASU V. DOROTHEA 51?
to be lost unlesS there be Act, any st>ecial reason for it. In incorporating a pro-
vision like Section 37 in the Act, Parliament intended to prote'c(the wife at the A
time of divorce by providing for payment of maintenance. If the husband has
left behind an estate·at the time of his death there call 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-q

1:3. There is no doubt that matrii;nonial Proceedings abate on the death
of either spouse and legal representatives cannot be bi-ought on record and the B
proceeding& 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 pro-
ceeded 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 c
the death of the husband when any otler decree even though not charged on
the husband's property wouJd 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 persona] Iiabi1ity. , In law· a maintenance decree would
not make any difference. The decree indicates !hat maintenance was payable
during the 1ife time of the widow. To make such a decree contingent upon the D
Jife of the husband is contrary to the terms and the spirit of the decree.
Thetefore, ·the assets left behind by Mitra are Hable to be proceeded agajrist
in the hands of his legal heirs for satisfaction of tf.e 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 clear]y 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 estateepasses 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; Exa_mining '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 JegaJ 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 maintCnance. That G
term would also include the holders of the estate with lawful titlo for the
time being. [523 E-H, 524 A·B] .
1
CIVIL APPELLATE JURISDICITION Civil Appeal No. 1997 of
1980.
H
From the Judgment and Order the 25th April, 1980 of the
Calcutta High Court in C.R. No. 1529.of 1979.
518 SUPREME COURT REPORTS il983) 3 S.C.R.
.,
.......
$hanker Ghose, Sobhan Tagore and P:K. Mukherjee for the
A. Appellant.

L.N. Sinha, Attorney General, C. V. Subba Rao and R.S. Poddar
for the Respondent.

.B R.B. Mehrotra for the Substitu1:ed Respondent.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. This appeal by certificate from th•
Calcutta High Court raises the question whether ai decree for perma·
c nent alimony passed under section 37 of the Special Marrige Act,
1954 (hereinafter referred to as 'tbe 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, 1877, in January 1952.
D 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 lCumar Mitra b1 dissolved.
a
by decree of divorce. The petitioner do get Rs. 300 p.m. as
maintenance from the respondent to be paid by the !st week of each
E month following for which it is due until she re-marries ... ".
Respondent levied execution of the decree and the. same was com-
promised 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 main-
tence decree. He died on Aprjl 3, 1965, and the appellant who was

' the executrix under the Will got it duly probated.

There is no disp)lte 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
G execution ili 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
l.
overruled the objectiol) whereupon the appellant invoked the
H
revisional jurisduction of the High Court. A Division Bench agreed
with the executing Court but while dismissing the revisiol\ application,
$ranted certificate of appeal to this Court.
ARUN BASU v. DOROTHEA (lfonganath Misra, J.) 519

The sole controversy is whether the order for alimony got
extinguished with the death of Prafulla Kumar Mitra. Admittedly, A
the order was made in exercise of powers under s. 37 of the Act.
It provides :

"37. Permanent alimony and maintence-(1) Any
Court exercising jurisdiction under Chapter V or Chapter
VI may, at the time of passing any d.ecree or at any time B
subsequent to the decree, on application ma_de 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 c
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;
D
(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 .aJI order under sub-section (!), 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; • E

(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."
F
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 d~ciding the matter. G

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 H
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 reqinred to be paid for a term not exceeding the life of the
520 SUPREME COURT REPORTS [1983) 3 s.c.lt.

wife or during the jojnt lives of the husband and the wife. These
A tw<i 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, •ecure to
B the wife such gross sum .of money or annual sum for any
term not exceeding her life, as having rei:ard 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.

c (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
D 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
E the death of one or 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
,!lO jurisdiction to order a man's personal representatives to make
payments for his children after his death." The decision in Sugden
v. Sugden,(') of the Court of Appeal has been relied upon for thi•
view. Lord Denning in the leading judgment said :

, "There is no difficulty in an ordinary action in
G
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
H makes an order directing it. . There is therefore no cause
of action for such matters until an or<;ler is · made. In

(I) (1957) I All. E.R. eOQ.
ARiJN BASU v. DOROTiraA (kanganath Misra, J.) 521

.
order that the cause of action should
. subsist at the death,
the right under the order must itself have accrued at the · A
·time of death. Thus a cause of action subsists against
a husband for.arrears of maintenance due at his death,
but not for l~ter payments."

This view of proceedings in the Divorce Court is supported by the
B
decision of Hodson, J. in Dipp/e v. Dipple,(1) where he pointed out
th~t "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 c
doubt they would be payable by his estate after his death under s. I
(I) of the Act of 1934; but there were no arrears. There was not-
thing, therefore, to come within the Act of 1934 at all. The right
to maintenance afte~ 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 ls. a year for the wife was payable by the husband D
during their joint livesc 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 E
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 F
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
G
is still at law a husband, and his wife becomes his widow.
Thus how can a decree be made which would ·displace a
.J,. dissolution of the marriage by death, and untie a knot
that·no longer exsist? How can a woman, once a widow,
H
(1) [19421 1 All E.R. 234.
(2) [1886) 11 P.D: 103.
522 SUPREME COURT REPORTS [1983] :i s.c.R..
be convert~d into a divorcee, unless ·there is some
A- enactment enabling the court such a retrosp~ctive
order"

The question to ask at this stage is, while a niatrimonial
· proceeding comes to an end with the death of either spouse, where
B 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
c 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-
iieath period.

D 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 decree for alimony or ·maintenance would not
abate when the same is charged upon the husband's estate, we asked
E 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 h~shand. 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
F 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
G . executable against the estate of the husband iii the hands of the
In
heirs and there is no personal liability. law a maintenance decree
would not make any difference. The decree indicates that main·
tenance was payable during the life time of the widow. To make :1...
H such a decree contingent upon the life of the husband is contrary to
the terms and the spirit or' 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.
AittiN BASU v. DOROTHEA (Ranganalh Misra, J.) S23

-- The Special Marriage Act is a statute of 1954 made by the
Indian Parliament after independence. For the interpreation of a 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 B
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 inten-
ded to protect the wife at the time of divorce by providing for pay
ment of maintenance. If the husband has left behind an e~tate 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 .c
without the liability of satisfying the decree.

We are inclined to agree with the view of the Calcutta High
Court that the decree in the instant case was not extinguished with
the death of Prafu!la Kumar Mitra . and the assets left behind by D
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 E
s. 37 would cover the husband and tl)e wife and no one else and on
this meaning given to the phrase, support was sought for the conten-
tion that the order of maintenance was intended to .continue only
during the life of the husband. This question was left open by the
High Com!. We, however, see no justification for the view that
the phrase should be confined to the spouses. There is no dispute F
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 chast~ 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 G
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 H'
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
S24 SUPREME COURT REPORTS l1983j 3 s.c.R.
spouses. Examining the scheme of the statute and the purpose for
A which suc\1 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
B 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.
c We accordingly dismiss the appeal and confirm the order. of
Calcutta High Court. The responoent shall be entitled to her costs
throughout. ·

S.R • Appeal dismissed.

..