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1990 DIGILAW 550 (KER)

Mathew v. Leelamma

1990-12-14

MALIMATH, MANOHARAN, VISWANATHA.IYER

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Judgment :- Malimath, CJ. This is the petition for divorce by the husband, under S.10 of the Indian Divorce Act, on the ground that the petitioner's wife, Leelamma has committed adultery. The learned District Judge has made a decree nisi for dissolution of the marriage under S.16 of the Indian Divorce Act, subject to confirmation by the High Court. S.17 of the Act provides that every decree made by the District Court shall be subject to the confirmation by the High Court. During the pendency of these proceedings for confirmation, the respondent died. When the matter came on the last occasion, as there is none to represent the deceased wife, we requested Mr. M.V.S. Nampoodiri, to assist us as amicus curae. We heard the learned counsel for the parties, on the effect of the death of the respondent-wife during the pendency of the proceedings for confirmation of the decree nisi for dissolution of marriage made by the District Court. 2. It was contended that the decree made by the District Court is only a conditional decree and the status of the parties does not get altered until the decree is confirmed by the High Court under S.17 of the Indian Divorce Act. If before the confirmation of the decree one of the parties to the proceedings for dissolution of the marriage dies, the question for consideration is as to whether the proceedings abate or can be proceeded with. One of the cardinal principles of justice is that no decision shall be rendered against any person without affording him or her an opportunity of being heard. What is involved in such proceedings is personal rights of the parties to the wedlock. 3. In AIR 1957 AP. 424 between Vempa Sunanda and Vempa Venkata Subbarao, this is what is held in paragraph 5 of the said judgment: "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 Raydon on'Divorce'8th 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". In paragraph 13 of the judgment, it is observed: "The aforesaid decisions, therefore clearly establish that a decree nisi is only a conditional decree and that it does not change the status of the parties. The parties continue to be husband and wife till a decree absolute is made " To the same effect is the earlier judgment of the Calcutta High Court in the decision reported in AIR 1923 Calcutta 426 between Butterfield and Butterfield, where in dealing with Ss.16 and 17 of the Indian Divorce Act it has been held that after the death of the petitioner before confirmation of the decree, the High Court has no jurisdiction to proceed with the proceedings for confirmation. With respect, we agree with the views expressed by the Andhra Pradesh High Court and the Calcutta High Court that if one of the parties to the proceedings for dissolution of marriage dies before the decree nisi is confirmed by the High Court, the entire proceedings abate. As in this case the respondent, wife, died during the pendency of these confirmation proceedings, we hold that the entire proceedings abate. It is ordered accordingly. We would like to record our appreciation for the assistance rendered by Sri. Namboodiri as amicus curae.