Bombay High Court: Right to seek divorce dies with the individual

The Bombay High Court on Thursday dismissed an appeal by family members of a deceased Pune resident, ruling that the right to seek divorce is personal and expires with the individual.
A division bench of Justice Mangesh Patil and Justice Shailesh Brahme rejected the appeal, stating, “The right to seek divorce was a personal right of the deceased and the cause of action would not survive” to family members. The bench added that the petition for divorce by mutual consent was abated upon the husband’s death.
In October 2020, Aniket and his wife, Shalaka, filed for divorce by mutual consent in the Dhule family court. Tragically, Aniket succumbed to Covid-19 on 15 April 2021, before affirming the petition.
Two weeks after his death, Shalaka sought to withdraw her consent for mutual divorce, requesting the family court to dismiss the petition in light of her estranged husband’s passing.
Aniket’s mother and two brothers opposed this move, seeking to be recognised as his legal heirs to pursue the matrimonial litigation. The family court, however, accepted Shalaka’s argument that the cause of action did not survive Aniket’s death and disposed of the divorce petition.
Appealing to the Aurangabad bench of the high court, Aniket’s family argued that Shalaka had received half the ₹2.50 lakh settlement amount, and only a procedural second motion under Section 13-B (2) of the Hindu Marriage Act, 1956, remained. They contended that Aniket had earned the right to divorce by mutual consent through substantial performance of the settlement.
The high court rejected this argument. The bench clarified that Section 13-B, which provides for divorce by mutual consent, requires the submission of a second motion (affirmation) under sub-section (2) as a prerequisite for a divorce decree.
The judges explained that only when both parties jointly make such a motion can the family court proceed with an inquiry to verify the marriage’s solemnisation and the joint petition’s veracity.
“Even after filing a petition for divorce by mutual consent, if no motion is moved by the parties jointly, there would be no question of the Court undertaking any further inquiry. It cannot happen at the instance of only one of the spouses,” the bench added.
The high court concluded that as heirs of the deceased, Aniket’s mother and brothers had no right to pursue the petition or file an appeal under Section 19 of the Family Courts Act challenging the family court’s order.