Divorce decree challenge survives death, but the restored petition becomes infructuous once the marriage has already ended by operation of law.

Substituted service by newspaper publication, used without adequate foundation and without prior ordinary service, was treated as insufficient in the facts, and sufficient cause existed to condone the delay in moving Order IX Rule 13 and set aside the ex parte divorce decree. The right to challenge a divorce decree survived the husband's death because a decree affects marital status as well as proprietary and succession rights, so the challenge did not abate and the legal heirs could be brought on record. However, once the ex parte decree was set aside after the husband's death, the original divorce petition could not continue, since no subsisting marriage remained to be dissolved and the petition had become infructuous.

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Issues: (i) whether delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte divorce decree deserved to be condoned and the decree set aside; (ii) whether the application and the challenge to the divorce decree survived the death of the husband and whether the proceedings abated; and (iii) whether, after setting aside the ex parte decree, the restored divorce petition could still be proceeded with or had become infructuous.

Issue (i): whether delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte divorce decree deserved to be condoned and the decree set aside;

Analysis: The Court held that substituted service is a last resort and must follow attempts at ordinary service. On the record, service by newspaper publication had been resorted to without adequate foundation, and the wife, being an illiterate woman living elsewhere, could not be assumed to have known of the proceedings merely from publication. The circumstances showed sufficient cause for condoning the delay in moving the application to set aside the ex parte decree.

Conclusion: The delay was rightly condoned and the ex parte divorce decree was properly set aside.

Issue (ii): whether the application and the challenge to the divorce decree survived the death of the husband and whether the proceedings abated;

Analysis: The Court distinguished between a pending matrimonial petition, which may involve a personal cause of action, and a decree already passed, which alters marital status and affects proprietary and social rights. Once a divorce decree is made, the aggrieved spouse has a surviving right to challenge it by appeal or by an application under Order IX Rule 13. The death of the decree-holder spouse does not extinguish that right, and the legal heirs may be brought on record because the decree affects inheritance and related rights. The Court rejected the contrary view that such proceedings necessarily abate on the death of the spouse who obtained the decree.

Conclusion: The challenge to the divorce decree survived the husband's death and did not abate.

Issue (iii): whether, after setting aside the ex parte decree, the restored divorce petition could still be proceeded with or had become infructuous;

Analysis: Once the husband had died, the marital tie had already come to an end by operation of law, and there was no surviving marriage for the court to dissolve by a fresh decree of divorce. After the ex parte decree was set aside, the original petition no longer served any practical purpose and could not continue as a live matrimonial cause.

Conclusion: The restored divorce petition had abated and had to be treated as infructuous.

Final Conclusion: The ex parte divorce decree remained set aside, but the underlying divorce petition could not be further pursued after the husband's death, so the matter ended without any further matrimonial adjudication.

Ratio Decidendi: A divorce decree, once passed, affects not only marital status but also proprietary and succession rights, so the aggrieved spouse retains a surviving right to challenge it even after the decree-holder's death; however, if the decree is set aside after the petitioning spouse has died, the original divorce petition itself becomes infructuous because no subsisting marriage remains to be dissolved.

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