Dorothea Mitra AIR 1983 SC 9164,
it has been held by the Supreme Court
that a decree for alimony passed under Section 37 of the
Special Marriage Act, 1954 does not extinguish with the
death of the husband/judgment debtor. The assets left
behind by him are liable to be proceeded against in the
hands of his legal heirs for satisfaction of the decree for
maintenance. It is further held that 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 executable against the estate of the husband in
the hands of the heirs and there is no personal liability.
6. By the impugned judgment, the Executing Court has held
the appellants to be liable to pay the amount of permanent
alimony of Rs.2,000/- to the respondent. The proper course
for the Executing Court should have been to direct the
parties to provide full particulars of all the movable and
immovable properties belonging to the deceased so that the
amount of permanent alimony, which is a charge on the
estate of the deceased, is recovered from those properties
because the appellants may not be personally liable to pay
permanent alimony to the respondent, but they are liable
because they are in possession of the assets of the
deceased.
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 103 of 2015
Arial I Kumar S/o Late Ismail Kumar (Dead)
V
Shrimati Shikha Kumar W/o Late Arial I Kumar
Coram:
Hon'ble Shri Justice Prashant Kumar Mishra
Hon'ble Shri Justice Anil Kumar Shukla
Dated: 07/11/2016
Citation: AIR 2017 Chhatis 7
1. This appeal is directed against the order passed by the
Second Additional Principal Judge to the Court of Family
Court, Raipur on 03.07.2015 directing the appellants to pay
a sum of Rs.2,000/- per month as maintenance.
2. No one appears for the appellants even in the second round,
however, since the respondent is appearing in person, we
examined the record to dispose of the matter finally.
3. The parties were married according to the Christian Law on
26.05.2005. Because of differences, the respondent wife
had to prefer an application under Section 10 (vii) of the
Divorce Act, 1869 bearing Civil Suit No.133A/2007, which
was allowed by the trial Court by judgment and decree dated
20.06.2008. By the said judgment, the respondent's
application for grant of divorce and permanent alimony was
allowed and she was held entitled for a sum of Rs.2,000/-
per month as permanent alimony. The husband died on
04.12.2012, therefore, the decree for permanent alimony
was not complied with. The respondent moved an
application for execution of the decree, against the legal
heirs of the husband, who are in possession of the
properties belonging to the deceased. The Executing Court
allowed the application holding and directing the appellants
to be liable to pay the amount of permanent alimony to the
respondent.
4. The respondent Shrimati Shikha Kumar would submit that
her husband owned immovable properties at Korba and
Mahasamund; the amount under various insurance policies
in the name of the deceased husband have been received
by the appellant No.2 Ervin Enesh Kumar. He has also
received the amount paid by the Oriental Insurance
Company and thus the appellants are in possession of huge
amounts and properties belonging to the deceased,
therefore, the Family Court should have directed for
recovery of the amount from the assets belonging to the
deceased, which are presently in possession of the
appellants. She would also submit that she is entitled to all
properties left by the deceased and further that the
appellants deserve to be prosecuted for submitting false
affidavit before the Court.
5. In the matter of Mrs. Aruna Basu Mullick vs. Mrs.
Dorothea Mitra AIR 1983 SC 9164,
it has been held by the Supreme Court
that a decree for alimony passed under Section 37 of the
Special Marriage Act, 1954 does not extinguish with the
death of the husband/judgment debtor. The assets left
behind by him are liable to be proceeded against in the
hands of his legal heirs for satisfaction of the decree for
maintenance. It is further held that 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 executable against the estate of the husband in
the hands of the heirs and there is no personal liability.
6. By the impugned judgment, the Executing Court has held
the appellants to be liable to pay the amount of permanent
alimony of Rs.2,000/- to the respondent. The proper course
for the Executing Court should have been to direct the
parties to provide full particulars of all the movable and
immovable properties belonging to the deceased so that the
amount of permanent alimony, which is a charge on the
estate of the deceased, is recovered from those properties
because the appellants may not be personally liable to pay
permanent alimony to the respondent, but they are liable
because they are in possession of the assets of the
deceased.
7. The law laid down by the Supreme Court in the matter of
Mrs. Aruna Basu Mullick (supra) has been reiterated by
the Supreme Court and followed in the matter Smt.
Nandarani Mazumdar vs. Indian Airlines and others
AIR 1983 SC 12015
8. For the foregoing, we are of the considered opinion that the
matter deserves to be remitted back to the Family
Court/Executing Court to proceed to recover the amount of
permanent alimony from the movable and immovable assets
belonging to the deceased. It will remain open for the
respondent wife to apply for enhancement of the amount, if
she so desires, as also for prosecuting against any of the
appellants who, according to the respondent wife, have
submitted false affidavit or have tried to mislead the Court.
9. Till the Executing Court proceeds to decide the matter
finally, the appellants are restrained from alienating or
creating any third party interest on the immovable properties
belonging to the deceased, which is presently in their
possession.
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