JUDGMENT :

PRAYER:- Civil Miscellaneous Second Appeal filed under Section 28 of Hindu Marriage Act read with Section 100 of C.P.C, to allow this Civil Miscellaneous Second Appeal against the Judgment and Decree in CMA.No.74 of 2012 on the file of the Principal District Court, Tiruchirapalli, dated 03.12.2012 reversing the Judgement and Decree in HMOP.No.669 of 2010 on the file of the Principal Sub Court, Tiruchirapalli, dated 10.07.2012.

The appeal was originally filed by the husband challenging the order of concurrent dismissal of the divorce petition by the Courts below. Pending appeal, the husband had passed away and his mother has been substituted in his place as a legal heir in order to prosecute the second appeal.

2.Factual Matrix:

(i).One P.Jegatheesan got married to Gomathi as per Hindu Rites and their caste customs on 08.09.1994 at Vasavi Mahal Contonment, Trichy. A son was born to them on 06.06.1995 and a daughter was born to the couple on 01.02.2000. Due to matrimonial dispute, the husband had filed HMOP.No.669 of 2010 on the file of the Principal Subordinate Court, Tiruchirappalli for the relief of dissolution of marriage.

(ii).The Trial Court after considering the oral and documentary evidence on either side, allowed the petition and granted a decree for divorce.

(iii).The wife had filed CMA.No.74 of 2012 before the Principal District Court, Trichy. The District Judge after hearing both the parties, had allowed the appeal and dismissed the divorce petition filed by the husband. Challenging the said order of the Principal District Judge, Trichy, a second appeal was filed by the husband in CMSA.No.1 of 2013 before this Court. Pending CMSA No.1 of 2013, the appellant/husband had died in an accident on 08.11.2016.

(iv).On 21.11.2016 the second appeal was closed by this Court citing death of the husband. However, the mother of the husband had filed CMP.No.11620 of 2017 to condone the delay and CMP.No.11627 of 2017 to implead herself as the appellant. Both the petitions were allowed. Thereafter, CMP.No.121 of 2022 was filed by the mother of the deceased to restore the appeal and the same was also allowed and hence, CMSA.No.1 of 2013 has now been restored and listed for hearing.

(v).The learned counsel for the respondent/wife had objected to the maintainability of the appeal after the death of her husband. Therefore, this Court had directed both the parties to make their submissions on the maintainability of the appeal.

3. Contentions of the learned counsel appearing for the appellant/husband:

(i). A divorce petition could be dismissed as abated only in the trial stage where no evidence has been recorded. But in the present case, both the parties have let in oral and documentary evidence in support of their respective case. The Trial Court had considered the issue on merits and has granted divorce. The First Appellate Court had reversed the decree and dismissed the divorce petition. Therefore, there is no impediment on the part of the Second Appellate Court to consider the appeal again on merits despite the death of the husband.

(ii). The learned counsel for the appellant had further contended that the husband was granted a divorce decree by the trial Court and it has been reversed by the First Appellate Court. The mother of the husband would like to prosecute the appeal only to establish the status between the parties. Any status that is decided by this Court would have consequence with regard to the property dispute between the mother-in-law and the daughter-in-law. Therefore, it is essential to decide the appeal on merits without considering the objection relating to the maintainability of the appeal.

(iii). As per Order 22 Rule 1 of C.P.C, death of one of the parties shall not cause the proceedings to abate if the right to sue survives. According to the learned counsel for the appellant, after the death of the husband, right to sue survives only to decide the status between the parties. The mother being a class-I heir of the dec