CMSA(MD).No.1 of 2013

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 13.04.2023

PRONOUNCED ON : 27.04.2023

CORAM

THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

C.M.S.A(MD)No.1 of 2013

and

CMP(MD).No.122 of 2022

P.Jegatheesan (died)

2.P.Jayalakshmi

(2^nd appellant is impleaded vide Court order

dated 15.11.2021)

... Appellants

vs.

Gomathi

...Respondent

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.

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CMSA(MD).No.1 of 2013

For Appellant

: Mr.S.Ramesh

For Respondent

: Mr.A.Haja Mohideen

J U D G M E N T

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.

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CMSA(MD).No.1 of 2013

(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.

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CMSA(MD).No.1 of 2013

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