VEMPA SUNANDA Vs. VEMPA VENKATA SUBBARAO

JUDGEMENT

(1.) THIS appeal raises an important point in the disposal of matrimonial causes.

(2.) THE Appellant was the wife of the Respondent. They were married in the year 1942. On tenth February, 1951, the Respondent filed an application in the Court of the Subordinate Judge, Cuntur, Sunder Section 5 (1) and (2) of the; Madras Hindu (Bigamy Prevention and Divorce) Act (Act 6 of 1949 -herein -after referred to as the Act) to dissolve his marriage with the Appellant. On third April, 1952, the learned Subordinate Judge made a decree dissolving the marriage. The Appellant preferred an appeal against that decree to the High Court of judicature, Madras and it has subsequently been transferred to this Court. Pending the appeal, the Respondent died. The question is whether the appeal alone abated leaving the decree intact or whether the petition itself abated with the result that the decree also was vacated.

(3.) LEARNED Counsel for the Appellant contended that a decree for dissolution under the Act is analogous to a decree nisi under the Indian Divorce Act and therefore if the Respondent dies pending appeal the entire suit abates. Alternatively he argued that in a divorce action, the husband or the wife puts in only his or her personal right for decision and if any one of them dies .either during the course of the original proceedings or at the appellate stage the en -, tire proceedings would abate. Mr. Lakshmiah countered this argument by stating that under the Act unlike under the Indian Divorce Act, there is no provision for a decree, nisi and the decree made thereunder being one relating to a status is a judgment in rem and therefore when a party dies pending an appeal only the appeal, abates leaving the decree appealed against intact.