SUNANDA Vs. VENKATA SUBBA RAO

JUDGEMENT

(1.) THE Order of the Court was delivered by THE Hon'ble THE Chief Justice: This appeal raises an important point in the disposal of matrimonial causes. THE appellant was the wife of the respondent. THEy were married in the year 1942. On 10-2-1951, the respondent filed an application in the Court of the Subordinate Judge, Guntur, under Section 5 (1) and (2) of the Madras Hindu (Bigamy Prevention and Divorce) Act (VI of 1949-hereinafter referred to as the Act) to dissolve his marriage with the appellant. On 3rd 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. Mr. C. V. Narasimha Rao, learned Counsel for the appellant and Mr. T. Lakshmiah who at our instance appeared as amicus curiae ably presented their respective views and placed all the relevant decisions before us. 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 entire 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. It is well-settled that in the case of a decree nisi, if the petitioner dies before it is made absolute, the entire proceedings abate. In Rayden on Divorce, 6th Edition, the learned author says at page 435 as follows: