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Report No. 136

4.14.1. Whether an appeal against a decree of divorce abates on the death of the spouse obtaining the decree?-

There is a conflict in the decisions on the question whether an appeal against a decree of divorce or an application made under Order 9, rule 13, Code of Civil Procedure, 1973, for setting aside an ex parte decree of divorce would abat9.on the death of the spouse in whose favour decree of divorce has been passed. The Bombay High Court1 is of the view that an appeal against a decree of divorce will not abate on the death of the respondent pending appeal. The Karnataka High Court 2 as concurred with this view. The following reasons prevailed with the Bombay High Court 3 in arriving at its conclusions-

"It may be conceded that the position is not free from doubt, but where this is so, equitable considerations must prevail and bearing in mind the nature of the conclusion, the far-reaching effect of the findings of the Court, both on personal status and property rights, it is desirable that the party aggrieved by the decree of the trial Court must have the opportunity to have the findings reversed and this opportunity must be assured irrespective of the death of the respondent."

1. Kamalabai v. Ramdas, AIR 1981 Bom 187.

2. Iravva v. Shivappa Shiddalingappa, AIR 1987 Karn 241.

3. Kamalabai v. Ramdas, AIR 1981 Bom 187.



Conflicts in High Court Decisions on Central Laws - How to Foreclose and how to Resolve Back




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