MRS. ARUNA BASU MULLICK versus MRS. DOROTHEA MITRA

Citation: [1983] 3 S.C.R. 516 · Decided: 02-08-1983 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Dismissed

Judgment (excerpt)

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516 
MRS. A RUNA BASU MULLICK 
v. 
MRS. DOROTHEA MITRA 
August 2, 1983 
[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 
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 
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 
· 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 
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 
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 
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 
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/\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 
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 
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 
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 
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

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