Bombay HC sets aside divorce for wife of dead man
TNN, Oct 12, 2010, 12.05am IST
MUMBAI: Can a divorce be granted to a woman whose husband is dead? The Pune family court certainly thought so and passed just such an order recently. But finding the Pune order nothing short of "preposterous, a bench of Justices B H Marlapalle and U D Salvi of the Bombay high court set it aside on Monday.
A Pune-based woman who was married for almost 20 years through a love match and had two minor teenagers was going through a divorce battle when a freak accident took her husband's life.
The fairly affluent couple, Arun and Aruna Joshi ( name changed), were estranged for five to six years. In 2005 the wife in her mid-40s filed a divorce petition citing mental and physical cruelty as ground for divorce under the Hindu Marriage Act and sought maintenance too. But after efforts at mediation failed, the couple turned their petition into one of mutual consent in February this year.
The family court allowed them to convert the contested divorce case into a joint plea for divorce. The mutual consent petition had its next date of hearing in May 2010. But in April, Arun in his early 50s, who was walking on one of Pune's main roads became a fatal victim of an accident involving a truck and car. Aruna went to the family court and made an application for closing the case as her husband was no more.
Aruna's lawyer Neela Gokhale told the HC that in a mutual consent divorce matter, the couple continues to remain married till the decree is passed. As the husband died while the matter was pending, the wife , Gokhale, said is now a widow. The family court judge R V Deshmukh rejected the wife's request and said that as the couple had agreed to a divorce by mutual consent and had even sought to convert a contested case into a joint plea for divorce, "nothing else remained to be done. So, he could issue a divorce decree even if the husband was dead.
At the first day of its hearing, Justice Marlapalle who had read the appeal papers and appeared shocked at the Pune court's decision of granting divorce, set it aside. The woman can now have her widow status which she prefers over being called a divorcee. The property issues would now follow the succession laws if no will was made.