A decree dissolving a marriage under the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 (Act VI of 1949) is a final and absolute decree, analogous to a decree absolute under the Indian Divorce Act (IV of 1869), and not a decree nisi. Therefore, the death of the respondent during the pendency of the appeal does not lead to the abatement of the suit or the vacation of the decree.

( 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:"the death of the petitioner before decree absolute causes a suit to abate altogether; there is no transmissible interest ; the object of the suit is gone. "the same rule prevails in America as is clear from a passage in 17 American jurisprudence at page 241 : " An action for divorce is of a purely personal naturesuch actions, in the absence of a statute providing to the contrary, abate absolutely upon the death of either party before judgment and cannot be revived in the name of or against the representatives of the deceased party. Accordingly if the statutes require a decree nisi to be entered in divorce cases which is not to be made absolute until after the lapse of a specified time, an absolute decree cannot be entered where a party dies after the decree nisi but before the time for the entry of an absolute decree has arrived. " the same view is expressed in Halsbury s Laws of England edited by lord Hailsham Vol. 10 at page 741 thus :" The death of the petitioner or the respondent before decree absolute causes a suit to abate altogether. "can a decree dissolving a marriage under the provisions of the Act be equated to a decree nisi ? That could be ascertained only by a comparative study of the relevant provisions of the Act with those of the Indian Divorce Act and the Matrimonial Causes Act of England. The Madras Act was passed in 1949 and came into force on 29th March 1949. As the provisions indicate the authors of that Act must have had their inspiration from the Indian divorce Act and the English Matrimonial Causes Act. The object of the Act was to prohibit bigamous marriages among and to provide for a right of divorce on certain grounds for Hindus domiciled in the Province of Madras. The relevant provisions of the Act and the rules made there
Click Here to Read the rest of this document