Death of the husband during the pendency of confirmation proceedings under Section 17 of the Indian Divorce Act, 1869, abates the divorce suit altogether.

BHAGABATI PROSAD BANERJEE, J. :- This case has been forwarded by the trial Court for confirmation of the decree nisi for dissolution of the marriage under Section 17 of the Indian Divorce Act, 1869. Notice could not be served as the husband has expired. The question in this case is whether the divorce suit abates after the decree nisi was passed under Section 16 of the Indian Divorce Act, 1869 (hereinafter referred to as the said Act) and during the pendency of the matter before the High Court for confirma­tion under Section 17 of the Act the husband has died.

2. In this case the suit for dissolution was filed by the wife against the husband in Divorce Suit No. 94 of 1986 before the Court of the 11th Additional District Judge, Alipor and the learned District Judge at the first instance passed a decree nisi dissolving the marriage on the basis of an application under Section 10 of the said Act on the ground of adultery with desertion and adultery with cruelty.

3. When the matter came up before us for confirmation of the decree nisi under S. 17 of the Act we find from the service return that the husband died and under such circum­stances the question is whether this Court can confirm or refuse to confirm the decree nisi. For the purpose of deciding this question the provisions of Ss. 16 and 17 of the said Act are required to be taken into consideration which read as follows :

"16. Decree for dissolution to be nisi.... Every decree for a dissolution of marriage made by a High Court shall, in the first instance, be a decree nisi, not to be made absolute till after the expiration of such time not less than six months from the pronounc­ing thereof, as the High Court by General or special order from time to time directs.

Collusion; During that period any person shall be at liberty, in such manner is the High Court by General or special order from time to time directs, to show cause why the said decree should not be made absolute by person of the same having been obtained by collusion or by reason of material facts not being brought before the Court. On cause being so shown, the Court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as justice may demand. The High Court may order the costs of counsel and witnesses, and otherwise arising from such cause being shown, to be paid by the parties or such one or more of them as it thinks fit, including a wife if she has separate property. Whenever a decree nisi has been made, and the petitioner fails, within a reasonable time, to move to have such decree made absolute, the High Court may dismiss the suit.

17.Confirmation of decree for dissolution by District Judge.......... Every decree for a dissolution of marriage confirmation by the High Court.

Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judge of the High Court is three or upwards) by a Court composed of three such Judges, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two judges, and in case of difference the opinion of the senior Judge shall prevail."

4. The High Court, if it thinks further enquiry or additional evidence to be neces­sary, may direct such enquiry to be made or such evidence to be taken. The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit :

Provided that no decree shall be confirmed under the Section till after the expiration of such time, not less than six months from the pronouncing thereof as the High Court by general or special order from time to time directs.

During the progress of the suit in the Court of the District Judge, any person, suspecting that any p