# Smt. Geeta Rani & Ors v. Smt. Maya Devi & Ors

- **Citation:** (2026) 3 ILRA 937
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-03-16
- **Case number:** First Appeal No. 969 of 2025
- **Bench:** Arindam Sinha, Satya Veer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-rani-ors-v-smt-maya-devi-ors-54334
- **Pages:** 6

## Text

3 All. Smt. Geeta Rani & Ors. Vs. Smt. Maya Devi & Ors.
937
2020 stands restored to its original number. The defendants application no.125-C2 under Order VII
Rule 11 CPC stands dismissed.

42. The trial court is directed to decide the suit within 6 months from the date of production of
a copy of this order, without affording unnecessary adjournment to either of the party, on merits, in
accordance with law.

43. A copy of this order be sent by the Registrar General of the High Court to the concerned
Judicial Officer Archana Singh, J.O.Code-U.P.2630 for future guidance. It is appropriate that she
be imparted further training at the Judicial Training and Research Institute, Lucknow for upgrading
her knowledge and understanding of the laws, otherwise she will continue passing such perverse
orders, burdening the High Court with more appeals.
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(2026) 3 ILRA 937
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.03.2026

BEFORE

THE HON'BLE ARINDAM SINHA, J.
THE HON'BLE SATYA VEER SINGH, J.

First Appeal No. 969 of 2025

Smt. Geeta Rani & Ors. ...Appellants
Versus
Smt. Maya Devi & Ors. ...Respondents

Issue for Consideration
Whether an application under Order IX Rule 13 CPC for setting aside an ex parte decree of divorce, filed more
than thirty years after the decree and after the death of the decree-holder husband, was maintainable against
the second wife and children, who were strangers to the matrimonial proceedings, and whether restoration of
the matrimonial case could be ordered in such circumstances.

Headnotes
Code of Civil Procedure, 1908 - O. IX r.13 - Hindu Marriage Act, 1955 - Family Courts Act,
1984 - Ex parte decree of divorce - Application for setting aside decree filed after death of
decree-holder spouse - Second wife and children impleaded after death of husband -
Maintainability of application:

Held: Where an ex parte decree dissolving marriage had attained finality and the decree-holder husband had
subsequently remarried after expiry of the statutory period for appeal, an application under Order IX Rule 13
CPC filed more than thirty years later and after the death of the husband was not maintainable. The second
wife and her children, who were strangers to the matrimonial proceedings, could neither prove nor answer
allegations relating to service of summons or substituted service in the original matrimonial case. In such
circumstances, restoration of the matrimonial proceedings at the instance of the first wife would result in
displacement of the status acquired by the second wife without affording any effective opportunity to contest
factual allegations against the deceased husband. [Paras 6, 7, 9]
938 INDIAN LAW REPORTS ALLAHABAD SERIES
Code of Civil Procedure, 1908 - O. IX r.13 - Hindu Marriage Act, 1955 - s.15 - Family Courts
Act, 1984 - s.19 - Ex parte decree of divorce - Subsequent marriage after expiry of appeal
period - Effect of setting aside decree after death of decree-holder:

Held: The ex parte decree of divorce was passed on 13.11.1991 and the second marriage was solemnized on
31.12.1991 after expiry of the statutory period prescribed for challenging the decree. The first wife could not
be deprived of the legal consequences flowing from the decree and the subsequent marriage by permitting a
belated challenge after the death of the husband. Where the challenge is made only after the death of the
decree-holder and seeks to undo the legal consequences of a marriage solemnized decades earlier, such
challenge is not maintainable. [Paras 6, 7, 9]

Code of Civil Procedure, 1908 - O. IX r.13 - Matrimonial proceedings - Death of spouse -
Right to sue - Survival of cause of action - Restoration of matrimonial case

Held: The principle laid down by the Supreme Court in Smt. Yallawwa v. Smt. Shantavva regarding restoration
of matrimonial proceedings and consequent abatement after death of a spouse did not assist the respondents
in the facts of the present case. The respondents failed to establish that the application for setting aside the
ex parte decree could be maintained after the death of the decree-holder husband against persons who were
not parties to the original matrimonial dispute. The question framed by the Court, namely whether such a
decree could be set aside when the decree-holder was dead and the right to sue did not survive, was
answered in the negative. [Paras 4, 8, 9]

Code of Civil Procedure, 1908 - O. IX r.13 - Delay and laches - Application filed more than
thirty years after decree - Filed shortly after death of decree-holder husband - Relief declined

Held: The first wife had contested the earlier matrimonial proceedings and asserted that the husband
continued to reside with her till his death. The application seeking setting aside of the ex parte decree was
instituted only after the husband's death and more than three decades after the decree had been passed.
Such proceedings could not be permitted to be used for undoing the decree and the subsequent marriage by
obtaining a posthumous adjudication on allegations of fraud against a deceased person. [Para 9]

Appeal allowed. Impugned judgment reversed. Application for setting aside ex parte decree dismissed. (E-14)

Case Law Cited
Smt. Yallawwa v. Smt. Shantavva, (1997) 11 SCC 159 - considered and distinguished; The State of
Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 - referred to.

List of Acts / Statutes
Code of Civil Procedure, 1908; Hindu Marriage Act, 1955; Family Courts Act, 1984.

List of Keywords
Ex parte divorce decree; Matrimonial proceedings; Death of decree-holder; Right to sue; Survival of cause of
action; Second marriage; Widow status; Delay and laches; Restoration of matrimonial case; Maintainability;
Abatement.

Case Arising From
Judgment dated 06.10.2025, passed by the Family Court, allowing the applications filed by respondent no.1
for condonation of delay and for setting aside the ex parte judgment and decree dated 13.11.1991, dissolving
the marriage, restoring the matrimonial case to its original number.

Appearance for Parties
For the Appellant: Sri Ratnesh Kumar Pandey, Sri Sanjay Kumar Mishra
For the Respondents: Ms. Shreya Gupta
3 All. Smt. Geeta Rani & Ors. Vs. Smt. Maya Devi & Ors.
939
(Delivered by Hon'ble Arindam Sinha, J.)

1. The appeal stands preferred against judgment dated 6th October, 2025 of the Family Court,
allowing the applications made by respondent in the original matrimonial case, for condonation of
delay and setting aside ex-parte judgment dated 13th November, 1991.

2. By said ex-parte impugned judgment dated 13th November, 1991 the marriage of
respondent no. 1 with her husband, since deceased stood dissolved. During his life time said
deceased husband remarried. Appellants are the second wife and her children. Respondents are first
wife and her children. The man died on 12th April, 2023. Respondent no. 1 through her brother
applied for death benefits from his employer. On being told there was already claim made by the
widow (the second wife)/appellant no. 1, respondent no. 1 approached the Family Court on gross
delay, for setting aside the ex-parte judgment and decree with application for condonation of delay.
By impugned judgment dated 6th October, 2025, the delay was condoned and the ex-parte
judgment and decree dated 13th November, 1991 set aside, for the matrimonial case being restored
to its original file and number. Furthermore, the matrimonial case itself was thereby brought to an
end. Appellants are in appeal against said judgment.

3. Mr. Ratnesh Kumar Pandey, learned advocate appears on behalf of appellants and on earlier
occasion he had handed up English translation of impugned judgment. Ms. Shreya Gupta, learned
advocate appears on behalf of respondents.

4. The appeal was moved before us on 25th November, 2025. On subsequent occasion we had
formulated a question of law. It appears from paragraph 3 in our order dated 26th February, 2026.
The paragraph is reproduced below.

"3. The short point to be answered is whether a judgment decreeing a matrimonial suit
can be set aside under rule 13 order IX, Code of Civil Procedure, 1908, where on the date of
application the decree holder was dead and the right to sue of appellants (no.1) seeking setting
aside the judgment dissolving the marriage, does not survive."

Ms. Gupta submits, the Supreme Court in Smt. Yallawwa vs. Smt. Shantavva reported in
(1997) 11 SCC 159, answered the question. She submits further, the Family Court followed this
judgment to restore the matrimonial case and thereupon bring it to an end as abated.

5. Ms. Gupta submits further, fraud was practiced on her client by her late husband. He had
initially filed for divorce. Her client, upon being served with the summons, entered appearance and
filed written statement, to contest the case. The husband thereafter failed to prosecute and the case
was dismissed for default. Subsequently, giving incorrect address of her client, he filed second case
for divorce and fraudulently obtained said ex-parte judgment and decree dated 13th November,
1991. She relies on rule 9 in order IX to submit, the second case was barred. Furthermore, upon
summons not duly served, the deceased husband had obtained direction for substituted service. The
notice was published in an evening publication circulated in western Uttar Pradesh. Her client
resides at Jewar, Gautam Budh Nagar, while she was purportedly noticed as residing in Haryana.
The publication was made on contention that she resides in Bulandshahr. Thus, her client
940 INDIAN LAW REPORTS ALLAHABAD SERIES
demonstrated with particulars, proof of fraud practiced by her deceased husband in obtaining since
set aside ex-parte judgment and decree dated 13th November, 1991. She submits still further, order
sheet in the second matrimonial case reveals the publication was made on 29th October, 1991.
Service was held to be sufficient on 11th November, 1991 and on 13th November, 1991 the exparte judgment and decree was passed. The Family Court thereafter, upon being presented with
pleadings, particulars and proof of the fraud practiced was pleased to condone the delay and set
aside the ex-parte judgment. There was no error, either on facts or in law, for interference in appeal.
Mr. Pandey submits, appellant no. 1 and her deceased husband had duly solemnized their marriage
on 31st December, 1991.

6. Undisputed facts are, there was ex-parte judgment and decree dated 13th November, 1991
dissolving the marriage of respondent no. 1. Said respondent applied for setting it aside on 24th
May, 2023. Undisputed is also, the deceased married appellant no. 1 on 31st December, 1991.
Undisputed because appellants were got impleaded in the setting aside application. It was made
more than 30 years after said judgment and decree had been passed and the marriage solemnized on
31st December, 1991. Little over a month from date of death of the husband, who died on 12th
April, 2023, respondent no. 1 applied on 24th May, 2023 for setting aside the ex-parte judgment
and decree. So we made query and Ms. Gupta submits, her late husband used to reside with her in
the same village at Jewar.

7. One thing is clear to us. It is that appellants cannot prove anything as fact regarding service
of summons nor substituted service taken place in the second matrimonial case, decreed ex-parte on
13th November, 1991. Appellant no. 1 was stranger to the proceeding. Hence, respondents could
not prosecute the application for setting aside the decree against such persons, as substitutes of the
dead person. Restoration of the original matrimonial case in such circumstances renders respondent
no. 1 to have status of widow, thereby displacing respondent no. 1 completely, without her being
able to say anything in respect of the allegations on questions of fact regarding service of the
summons nor the substituted service. Section 15 in Hindu Marriage Act, 1955 bars a divorced
person from remarrying till the time for appealing from the decree has expired, without appeal
filed. The ex-parte judgment and decree was passed on 13th November, 1991. Section 19 in Family
Courts Act, 1984 provides prescribed period of 30 days for preferring appeal. The period expired
by 15th November, 1991. The second marriage was solemnized on 31st December, 1991. So far as
respondent no. 1 is concerned, she cannot be held guilty of any wrong on her part, for her to lose
status of widow. Said respondent's status was thus taken away without her having any scope of
defending it. Here we may rely on declaration of law by the Supreme Court on its judgment
rendered by a Bench of 11 learned Judges in The State of Bombay vs. Kathi Kalu Oghad
reported in (1962) 3 SCR 10 for meaning of phrase "to be a witness". A passage from the judgment
is reproduced below.

"The matter may be looked at from another point of view. The giving of finger impression
or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a
witness" means imparting knowledge in respect of relevant fact, by means of oral statements or
statements in writing, by a person who has personal knowledge of the facts to be communicated
to a court or to a person holding an enquiry, or investigation. A person is said 'to be a witness' to
a certain state of facts which has to be determined by a court or authority authorised to come to
3 All. Smt. Geeta Rani & Ors. Vs. Smt. Maya Devi & Ors.
941
a decision, by testifying to what he has seen, or something he has heard which is capable of
being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in
respect of matters in controversy....."

8. The Supreme Court in Smt. Yallawwa (supra) gave directions regarding maintainability of
the application for setting aside the ex-parte decree in the matrimonial case against a deceased
spouse and that upon restoration, the matrimonial case was to come to an end as abated. Paragraph
10 is reproduced below.

"10. Now remains the question as to whether the proceedings for divorce as restored by
the High Court by its impugned order are required to be proceeded further or the curtain must be
dropped on the said proceedings. As the ex parte decree is found to be rightly set aside by the High
Court, the marriage petition would automatically stand restored on the file of the learned trial
Judge at the stage prior to that at which they stood when the proceedings got intercepted by the ex
parte decree. Once that happens it becomes obvious that the original petitioner seeking decree of
divorce against the wife being no longer available to pursue the proceedings now, the
proceedings will certainly assume the character of a personal cause of action for the deceased
husband and there being no decree culminating into any crystallized rights and obligations of
either spouse, the said proceedings would obviously stand abated on the ground that right to sue
would not survive for the other heirs of the deceased husband to get any decree of divorce
against the wife as the marriage tie has already stood dissolved by the death of the husband. No
action, therefore, survives for the court to snap such a non-existing tie, otherwise it would be like
trying to slay the slain. At this stage there remains no marriage to be dissolved by any decree of
divorce. Consequently, now that the ex parte decree is set aside, no useful purpose will be served
by directing the trial court to proceed with the Hindu marriage petition by restoring it to its file.
The Hindu Marriage Petition No. 25 of 1989 moved by Shri Basappa, the husband of the
respondent, on the file of the Court of Civil Judge, Gadag will be treated to have abated and shall
stand disposed of as infructuous. The appeal is disposed of accordingly. In the facts and
circumstances of the case, there will be no order as to costs."

We have perused the judgment for facts in the case dealt with by the Supreme Court.
Appellant before said Court was mother of the husband. She may not have been a stranger to the
proceeding as mothers of petitioning spouses do take the box to give evidence supporting the cause
being contended. In our humble and respectful interpretation of the judgment, we can only say, the
Court exercised its power under article 142 in the Constitution, in respect of the case before it.

9. Respondents have not been otherwise able to answer in the affirmative, the question of law
we framed. In our view the answer is in the negative. The application of respondent no. 1 for
setting aside the ex-parte judgment and decree dated 13th November, 1991, with purpose of
thereby erasing the second marriage solemnized on 31st December, 1991, the application filed
more than 30 years after date of the decree but soon after death of the deceased, was not
maintainable. Respondent no. 1 had contested the first matrimonial case and says, her husband
lived with her till he died. So she went to claim the death benefits from the employer. Said
respondent if had allowed him to maintain a second family upon obtaining a decree of Court,
942 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot in this way undo the decree, to have her allegation of fraud upheld against the alleged
perpetrator, who died soon before the application was made.

10. Impugned judgment is reversed in appeal. The setting aside application is dismissed.

11. The appeal is allowed and disposed of.
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(2026) 3 ILRA 942
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.03.2026

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 528 BNSS No. - 974 of 2026

Mariya Zafar & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

ISSUE FOR CONSIDERATION
Whether the rejection of the petitioner's application under Section 91 CrPC by the Magistrate, despite clear
directions in Rajnesh v. Neha regarding disclosure of assets and liabilities, was arbitrary and illegal, and
whether the ITRs of opposite party no. 2 should be considered for reassessment of maintenance proceedings.

HEADNOTES
Criminal Law - Code of Criminal Procedure, 1973 - Section 91, 340 - Protection of Women from
Domestic Violence Act, 2005 - Section 12 - Indian Evidence Act, 1872 - Sections 106, 165 - Code
of Civil Procedure, 1908 - Order 10, Order 11 - Bharatiya Nagarik Suraksha Sanhita, 2023 -
Section - 94, 528,: - Application u/s 528 BNSS - for quashing the impugned order by which the trial court
rejected the application filed by the petitioner no. 1 (wife) u/s 91 of the Cr.P.C. and seeking direction for
summoning the financial records of the opposite party no. 2 - matrimonial dispute - opposite party no. 2
(husband) harass and beaten her wife (petitioner no. 1) for no fulfilment of dowry demand - Complaint u/s 12
DV Act - allegations of dowry harassment, domestic violence, suppression of income - objection filed by
husband claiming to be labourer - Application u/s 91 Cr.P.C. filed by wife - objection filed by husband - trial
court rejected - False affidavit of assets and liabilities - suppression of income - Applicability of Rajnesh v.
Neha guidelines - Duty of Magistrate to ensure truthful disclosure in maintenance proceedings - court finds
that, ITRs produced in Court show opposite party is Architect with income Rs. 4,85,290 (AY 2023-24) and Rs.
5,07,680 (AY 2024-25) - held - rejection was arbitrary and in illegal manner - suppression established -
hence, impugned order set aside and the matter is remanded back to the trial court for fresh decision within
six weeks - Application is allowed with direction to that the copies of the ITRs of opposite party no. 2
produced on record may also be provided to the petitioner.
Application Allowed. (E-11)

CASE LAW CITED
Rajnesh v. Neha & Ors., (2021) 2 SCC 324

LIST OF ACTS
Code of Criminal Procedure, 1973,