Case Note & Summary
The appeal before the High Court of Andhra Pradesh arose from the judgment of the Family Court, Visakhapatnam, dated 15.04.2010 in O.P.No.749 of 2007, which dissolved the marriage between the appellant wife and the respondent husband on grounds under Section 13(1)(i)(a) and (b) of the Hindu Marriage Act, 1955. The husband had alleged cruelty and adultery with the second respondent. The wife and daughter had also filed O.P.No.969 of 2007 under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 seeking maintenance, which was disposed of by a common order allowing both maintenance and divorce. The wife filed the present appeal challenging the divorce decree. During the pendency of the appeal, the respondent husband died, and the daughter was brought on record as his legal representative. The third respondent-daughter, through counsel, submitted that she had no objection to the appeal being allowed and was living with her mother. The wife contended in the appeal that the husband was not interested in matrimonial life, that the cruelty was from the husband's side through suspicion of her fidelity, and that there was no legally acceptable evidence to support the divorce grounds. The Family Court had granted divorce observing that the wife was living in adultery and that the marriage had irretrievably broken down. The High Court framed four points for determination: whether the cause of action survived for the appellant spouse after the death of the respondent spouse and whether the third respondent was competent to represent the deceased respondent; whether the concession of the daughter alone could form the basis to allow the appeal or whether merits had to be examined; whether the divorce decree was sustainable in law and on facts; and the result of the appeal. The Court analyzed the first point in detail. It noted that under Order XXII Rule 11 read with Rule 1 of the Code of Civil Procedure, 1908, the death of a party does not cause abatement if the right to sue survives. The Court observed that an appeal is a continuation of the suit and that a decree of divorce is generally considered a judgment in rem, determining the legal status of individuals. It held that the right to claim or dispute marital status and consequential rights such as maintenance survives even against the estate of the husband, and therefore the cause of action survived for the wife to continue the appeal. The Court also referred to Yallawwa v. Shantavva, (1997) 11 SCC 159, which supported the survival of the right to sue in such circumstances. The provided judgment text ends after this analysis and does not include the final operative decision on the remaining points.
Headnote
A) Civil Procedure - Abatement of Appeal - Survival of Cause of Action - Code of Civil Procedure, 1908, Order XXII Rules 1 and 11 - In an appeal against a divorce decree, the death of the respondent spouse did not abate the appeal because the right to sue survives; a divorce decree is a judgment in rem determining legal status and consequential rights such as maintenance; the legal representative of the deceased spouse is competent to represent the deceased's interest - Held that the cause of action survives for the appellant spouse to continue the appeal (Paras 16-19).
Issue of Consideration
Whether the cause of action survives for an appellant spouse disputing a divorce decree after the death of the other spouse; whether the 3rd respondent is competent to represent the deceased 1st respondent; whether the concession of the daughter alone can form the basis to allow the appeal or the court must examine merits; whether the divorce decree dated 15.04.2010 is sustainable in law and on facts.
Final Decision
Not mentioned in the provided judgment text.
Law Points
- Appeal is a continuation of suit
- death of party does not abate appeal if right to sue survives
- divorce decree is judgment in rem
- right to dispute marital status and consequential rights survives death of spouse
- legal representative can represent deceased respondent
Case Details
2026 LawText (AP) (02) 15
Family Court Appeal (FCA) No. 189 of 2013
Battu Devanand, A. Hari Haranadha Sarma
V Surendra Reddy, Guttapalem Vijaya Kumar
Gompa Lakshmana Rao (died), K. Durga Rao, Gompa Renuka
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Family Court Appeal against decree of divorce granted under Section 13(1)(i)(a) and (b) of Hindu Marriage Act, 1955.
Remedy Sought
Appellant wife sought to set aside the order and decree dated 15.04.2010 passed by Judge, Family Court, Visakhapatnam in O.P.No.749 of 2007 dissolving her marriage.
Filing Reason
Husband filed O.P.No.749 of 2007 seeking dissolution of marriage on grounds of adultery and cruelty; Family Court allowed divorce; wife appealed.
Previous Decisions
Family Court, Visakhapatnam by common order dated 15.04.2010 allowed O.P.No.749 of 2007 (divorce) and O.P.No.969 of 2007 (maintenance under Sections 18 and 20 of Hindu Adoptions and Maintenance Act, 1956), granting divorce and maintenance. Earlier M.C.No.189 of 1999 allowed maintenance @Rs.500 per month each to wife and daughter.
Issues
Whether the cause of action survives for an appellant spouse disputing the divorce in the event of death of the other spouse, and whether the 3rd respondent is competent to represent the 1st respondent's interest?
Whether the concession of the daughter/3rd respondent alone shall form the basis to allow the appeal, or whether the Appellate Court must examine the merits?
Whether the decree and judgment dated 15.04.2010 passed in O.P.No.749 of 2007 dissolving the marriage are sustainable in law and on facts?
What is the result of the appeal?
Submissions/Arguments
Appellant wife contended that the husband was not interested to lead matrimonial life, cruelty was from husband's side through suspicion of fidelity, and there was no legally acceptable evidence to believe the divorce grounds.
3rd respondent-daughter stated she had no objection to allowing the appeal and setting aside the decree of dissolution of marriage.
Husband (original petitioner) alleged that the wife had illicit intimacy with the 2nd respondent, beat him and left the matrimonial home on 23.11.1995, and therefore he was entitled to divorce on grounds of adultery and cruelty.
2nd respondent denied allegations of adultery, stating he was employed in hotel industry at Chennai and only had family friendship with the appellant's family.
Ratio Decidendi
An appeal is a continuation of the suit; under Order XXII Rule 11 read with Rule 1 CPC, the death of a party does not cause abatement if the right to sue survives. A decree of divorce is a judgment in rem determining legal status, and the right to dispute marital status and consequential rights such as maintenance survives the death of the respondent spouse. Therefore, a surviving spouse can continue an appeal against a divorce decree, and the legal representative of the deceased spouse is competent to represent the deceased's interest.
Judgment Excerpts
Appeal is continuation of Suit is the settled preposition of law.
a decree of divorce is generally considered as a judgment in rem, not merely a right in personam.
The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
Procedural History
Husband filed O.P.No.749 of 2007 before Family Court, Visakhapatnam for dissolution of marriage under Section 13(1)(i)(a) and (b) HMA alleging adultery with 2nd respondent. Wife and daughter filed O.P.No.969 of 2007 seeking maintenance under Sections 18 and 20 of Hindu Adoptions and Maintenance Act, 1956. Family Court by common order dated 15.04.2010 allowed both petitions. Wife filed FCA No.189 of 2013 before High Court. During pendency of appeal, respondent husband died, and daughter (3rd respondent) was brought on record as legal representative vide order dated 05.11.2025 in I.A.No.3/2023.
Acts & Sections
- Hindu Marriage Act, 1955: Section 13(1)(i)(a), Section 13(1)(i)(b), Section 15
- Hindu Adoptions and Maintenance Act, 1956: Section 18, Section 20
- Code of Civil Procedure, 1908: Order XXII Rule 1, Order XXII Rule 11
- Hindu Succession Act, 1956: Section 8
