THE INDIAN DIVORCE ACT, 1869
ACT No. 4 OF 1869
1*
[26th February, 1869.]
An Act to amend the law relating to Divorce and Matrimonial
Causes
2***
Preamble.-WHEREAS it is expedient to amend the law relating to
the divorce of persons professing the Christian religion, and to
confer upon certain Courts jurisdiction in matters matrimonial; it is
hereby enacted as follows:-
INDIA CODE, VOL-II, (1856-1879)
I.-PRELIMINARY
1. Short title
1. Short title. Commencement of Act.-This Act may be called
the Indian Divorce Act, and shall come into operation on the first
day of April, 1869.
2. Extent of Act.
2. Extent of Act.-3*[This Act extends to 4*[the whole of
India 5*[except the State of Jammu and Kashmir]].]
Extent of power to rant relief generally,
Extent of power to grant relief generally,-6*[Nothing hereinafter
contained shall authorise any Court to grant any relief under this Act
except where the petitioner 7*[or respondent] professes the Christian
religion,
and to make decrees of dissolution,
and to make decrees of dissolution,-or to make decrees of
dissolution of marriage except where the parties to the marriage are
domiciled in India at the time when the petition is presented,
or of nullity.
or of nullity.-or to make decrees of nullity of marriage except
where the marriage has been solemnized in India and the petitioner is
resident in India at the time of presenting the petition,
or to grant any relief under this Act, other than a decree of
dissolution of marriage or of nullity of marriage, except where the
petitioner resides in India at the time of presenting the petition.]
3. Interpretation-clause.
3. Interpretation-clause.-In this Act, unless there be Collected by the All India Christian Council, www.christiancouncil.in Page 2 of 36
something repugnant in the subject or context,-
8[(1) "High Court".- "High Court" means with reference to any
area:
(a) in a State, the High Court for that State;
9[(b) in Delhi, the High Court of Delhi;
(bb) in Himachal Pradesh, the High Court of Punjab and Haryana
up to and inclusive of the 30th April, 1967 and the High Court of
Delhi thereafter;]
(c) in Manipur and Tripura, the High Court of Assam;
(d) in the Andaman and Nicobar Islands, the High Court at
Calcutta;
(e) in 10*[Lakshadweep], the High Court of Kerala;
11[(ee) in Chandigarh, the High Court of Punjab and Haryana;]
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1. For Statement of Objects and Reasons, see Calcutta Gazette, 1863,
p. 173; for Report of Select Committee, see Gazette of India, 1869, p.
192; for Proceedings in Council, see Calcutta Gazette, 1862,
Supplement, p. 463, ibid., 1863, Supplement, p. 43, and Gazette of
India, 1869, Supplement, p. 291.
2. The words "in India" omitted by Act 3 of 1951, s. 3 and Sch.
3. Subs. by A.O. 1948, for the original first para.
4. Subs. by A.O. 1950, for certain words.
5. Subs. by Act 3 of 1951, s. 3 and Sch., for "except Part B
States".
6. Subs. by Act 25 of 1926, s. 2, for paras. 2, 3 and 4.
7. Ins. by Act 30 of 1927, s. 2.
8. Subs. by A.O. (No. 2) 1956, for the former .
9. Subs. by the Himachal Pradesh (Adaptation of Laws on State and
Concurrent Subjects) Order, 1968. for sub-clause (b) (w.e.f 1-11-
1966).
10.Subs. by the Laccadive, Minicoy and Amindivi Islands (Alteration
of Name) Adaptation of Laws Order, 1974, for "the Laccadive, Minicoy
and Amindivi Islands" (w.e.f. 1-11-1973).
11.ins' by the Punjab Reorganisation (Chandigarh) (Adaptation of
Laws on State and Concurrent Subjects) Order, 1968 (w.e.f. 1-11-1966).
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and in the case of any petition under this Act, "High Court" means the
High Court for the area where the husband and wife reside or last
resided together:] Collected by the All India Christian Council, www.christiancouncil.in Page 3 of 36
1[(2) "District Judge."- "District Judge" means a Judge of a
principal civil court of original jurisdiction however designated:]
(3)"District Court."-"District Court" means, in the case of any
petition under this Act, the Court of the District Judge within the
local limits of whose ordinary jurisdiction, or of whosejurisdiction
under this Act, the husband and wife reside or last resided together:
(4) "Court."-"Court" means the High Court or the District Court, as
the case may be:
(5)"Minor children."-"minor children" means, in the case of sons of
Native fathers, boys who have not completed the age of sixteen years,
and, in the case of daughters of Native fathers, girls who have not
completed the age of thirteen years. In other cases it means
unmarried children who have not completed the age of eighteen years:
(6)"Incestuous adultery."-"incestuous adultery" means adultery
committed by a husband with a woman with whom, if his wife were dead,
he could not lawfully contract marriageby reason of her being within
the prohibited degrees of consanguinity (whether natural or legal) or
affinity:
(7)"Bigamy with adultery."-"bigamy with adultery" means adultery with
the same woman with whom the bigamy was committed:
(8)"Marriage with another woman."- "marriage with another woman" means
marriage of any person, being married, to any other person, during the
life of the former wife, whether the second marriage shall have taken
place within 2*[India] or elsewhere:
(9)"Desertion."-"desertion" implies an abandonment against the wish of
the person charging it; and
(10) "Property."-"property" includes in the case of a wife any
property to which she is entitled for an estate in remainder or
reversion or as a trustee, executrix or administratrix; and the date
of the death of the testator or intestate shall be deemed to be the
time at which any such wife becomes entitled as executrix or
administratrix.
II.-JURISDICTION
4. Matrimonial jurisdiction of High Courts to be exercised subject to
Act. Exception.
4. Matrimonial jurisdiction of High Courts to be exercised
subject to Act. Exception.-The jurisdiction now exercised by the High
Courts in respect of divorce a mensa et toro, and in all other causes,
suits and matters matrimonial, shall be exercised by such Courts and
by the District Courts subject to the provisions in this Act Collected by the All India Christian Council, www.christiancouncil.in Page 4 of 36
contained, and not otherwise : except so far as relates to the
granting of marriage-licenses, which may be granted as it this Act had
not been passed.
5. Enforcement of decrees or orders made heretofore by Supreme or High
Court.
5.Enforcement of decrees or orders made heretofore by Supreme or
High Court.-Any decree or order of the late Supreme Court of
Judicature at Calcutta, Madras or Bombay sitting on the ecclesiastical
side, or of any of the said High Courts sitting in the exercise of
their matrimonial jurisdiction, respectively, in any cause or matter
matrimonial, may be enforced and dealt with by the said High Courts,
respectively, as herein after mentioned, in like manner as if such
decree or order had been originally made under this Act by the Court
so enforcing or dealing with the same.
6. Pending suits.
6.Pending suits.-All suits and proceedings in causes and matters
matrimonial, which when this Act comes into operation are pending in
any High Court, shall be dealt with and decided by such Court, so far
as may be, as if they had been originally instituted therein under
this Act.
7. Court to act on principles of English Divorce Court.
7. Court to act on principles of English Divorce Court.-Subject
to the provisions contained in this Act, the High Courts and District
Courts shall, in all suits and proceedings hereunder, act and give
relief on principles and rules which, in the opinion of the said
Courts, are as nearly as may be conformable to the principles and
rules on which the Court for Divorce and Matrimonial Causes in England
for the time being acts and gives relief:
3[Provided that nothing in this section shall deprive the said
Courts of jurisdiction in a case where the parties to a marriage
professed the Christian religion at the time of the occurrence of the
facts on which the claim to relief is founded.]
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1. Subs. by A.O. 1950, for the former clause.
2. Subs, [bid., for "the dominions of Her Majesty".
3. Added by Act 10 of 1912, s. 2.
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8. Extraordinary jurisdiction of High Court.
8. Extraordinary jurisdiction of High Court.-The High Court
may, whenever it thinks fit, remove and try and determine as a Court
of original jurisdiction any suit or proceeding instituted under this
Act in the Court of any District Judge within the limits of its
jurisdiction under this Act.
Power to transfer suits. Collected by the All India Christian Council, www.christiancouncil.in Page 5 of 36
Power to transfer suits.-The High Court may also withdraw any
such suit or proceeding, and transfer it for trial or disposal to the
Court of any other such District Judge.
9.Reference to High Court.
9.Reference to High Court.-When any question of law or usage
having the force of law arises at any point in the proceedings
previous to the hearing of any suit under this Act by a District Court
or at any subsequent stage of such suit, or in the execution of the
decree therein or order thereon,
the Court may, either of its own motion or on the application of
any of the parties, draw up a statement of the case and refer it, with
the Court's own opinion thereon, to the decision of the High Court.
If the question has arisen previous to or in the hearing, the
District Court may either stay such proceedings, or proceed in the
case pending such reference, and pass a decree contingent upon the
opinion of the High Court upon it.
If a decree or order has been made, its execution shall be stayed
until the receipt of the order of the High Court upon such reference.
III.-DISSOLUTION OF MARRIAGE
10. When husband may petition for dissolution.
10.When husband may petition for dissolution.-Any husband may
present a petition to the District Court or to the High Court, praying
that his marriage may be dissolved on the ground that his wife has,
since the solemnization thereof, been guilty of adultery.
When wife may petition for dissolution.
When wife may petition for dissolution.-Any wife may present a
petition to the District Court or to the High Court, praying that her
marriage may be dissolved on the ground that, since the solemnization
thereof, her husband has exchanged his profession of Christianity for
the profession of some other religion, and gone through a form of
marriage with another woman;
or has been guilty of incestuous adultery,
or of bigamy with adultery,
or of marriage with another woman with adultery, or of rape,
sodomy or bestiality,
or of adultery coupled with such cruelty as without adultery
would have entitled her to a divorce a mensa et toro, Collected by the All India Christian Council, www.christiancouncil.in Page 6 of 36
or of adultery coupled with desertion, without reasonable excuse,
for two years or upwards.
Contents of petition.
Contents of petition.--Every such petition shall state, as
distinctly as the nature of the case permits, the facts on which the
claim to have such marriage dissolved is founded.
11. Adulterer to be co-respondent.
11.Adulterer to be co-respondent.-Upon any such petition
presented by a husband, the petitioner shall make the alleged
adulterer a co-respondent to the said petition, unless he is excused
from so doing on one of the following grounds, to be allowed by the
Court:-
(1) that the respondent is leading the life of a prostitute, and
that the petitioner knows of no person with whom the adultery has been
committed;
(2) that the name of the alleged adulterer is unknown to the
petitioner, although he has made due efforts to discover it;
(3) that the alleged adulterer is dead.
12. Court to be satisfied of absence of collusion.
12.Court to be satisfied of absence of collusion.-Upon any such
petition for the dissolution of a marriage, the Court shall satisfy
itself, so far as it reasonably can, not only as to the facts alleged,
but also whether or not the petitioner has been in any manner
accessory to, or conniving at, the going though of the said form of
marriage, or the adultery, or has condoned the same, and shall also
enquire into any countercharge which may be made against the
petitioner.
13. Dismissal of petition.
13.Dismissal of petition.-In case the Court, on the evidence in
relation to any such petition, is satisfied that the petitioner's case
has not been proved, or is not satisfied that the alleged adultery has
been committed,
or finds that the petitioner has, during the marriage, been
accessory to, or conniving at, the going through of the said form of
marriage, or the adultery of the other party to the marriage, or has
condoned the adultery complained of,
or that the petition is presented or prosecuted in collusion with
either of the respondents,
then and in any of the said cases the Court shall dismiss Collected by the All India Christian Council, www.christiancouncil.in Page 7 of 36
the petition.
When a petition is dismissed by a District Court under this
section, the petitioner may, nevertheless, present a similar petition
to the High Court.
14. Power to Court to pronounce decree for dissolving marriage.-
14. Power to Court to pronounce decree for dissolving marriage.-
In case the Court is satisfied on the evidence that the case of the
petitioner has been proved,
and does not find that the petitioner has been in any manner
accessory to, or conniving at, the going through of the said form of
marriage, or the adultery of the other party to the marriage, or has
condoned the adultery complained of,
or that the petition is presented or prosecuted in collusion with
either of the respondents,
the Court shall pronounce a decree declaring such marriage to be
dissolved in the manner and subject to all the provisions and
limitations in sections sixteen and seventeen made and declared:
Provided that the Court shall not be bound to pronounce such
decree if it finds that the petitioner has, during the marriage, been
guilty of adultery,
or if the petitioner has, in the opinion of the Court, been
guilty of unreasonable delay in presenting or prosecuting such
petition,
or of cruelty towards the other party to the marriage,
or of having deserted or wilfully separated himself or herself
from the other party before the adultery complained of, and without
reasonable excuse,
or of such wilful neglect or misconduct of or towards the other
party as has conduced to the adultery.
Condonation.
Condonation.-No adultery shall be deemed to have been condoned
within the meaning of this Act unless where conjugal cohabitation has
been resumed or continued.
15. Relief in case of opposition on certain grounds.
15.Relief in case of opposition on certain grounds.-In any suit
instituted for dissolution of marriage, if the respondent opposes the
relief sought on the ground, in case of such a Suit instituted by a
husband, of his adultery, cruelty, or desertion without reasonable Collected by the All India Christian Council, www.christiancouncil.in Page 8 of 36
excuse, or, in case of such a suit instituted by a wife, on the ground
of her adultery and cruelty, the Court may in such suit give to the
respondent, on his or her application, the same relief to which he or
she would have been entitled in case he or she had presented a
petition seeking such relief, and the respondent shall be competent to
give evidence of or relating to such cruelty or desertion.
16. Decrees for dissolution to be nisi.
16. Decrees for dissolution to be nisi.-Every decree for a
dissolution of marriage made by a High Court not being a confirmation
of a decree of a District Court, shall, in the first instance, be a
decree nisi, not to be made absolute till after the expiration of such
time, not less than six months from the pronouncing thereof, as the
High Court, by general or special order from time to time, directs.
Collusion.
Collusion.-During that period any person shall be at liberty, in
such manner as the High Court by general or special order from time to
time directs, to show cause why the said decree should not be made
absolute by reason of the same having been obtained by collusion or by
reason of material facts not being brought before the Court.
On cause being so shown, the Court shall deal with the case by
making the decree absolute, or by reversing the decree nisi, or by
requiring further inquiry, or otherwise as justice may demand.
The High Court may order the costs of Counsel and witnesses and
otherwise arising from such cause being shown, to be paid by the
parties or such one or more of them as it thinks fit, including a wife
if she have separate property.
Whenever a decree nisi has been made, and the petitioner fails,
within a reasonable time, to move to have such decree made absolute,
the High Court may dismiss the suit.
17. Confirmation of decree for dissolution by District Judge.
17. Confirmation of decree for dissolution by District Judge.-
Every decree for a dissolution of marriage made by a District Judge
shall be subject to confirmation by the High Court.
Cases for confirmation of a decree 'for dissolution of marriage
shall be heard (where the number of the Judges of the High Court is
three or upwards) by a Court composed of three such Judges, and in
case of difference the opinion of the majority shall prevail, or
(where the number of the Judges of the High Court is two) by a Court
composed of such two Judges, and in case of difference the opinion of
the Senior Judge shall prevail.
The High Court, if it thinks further enquiry or additional
evidence to be necessary, may direct such enquiry to be made, or such Collected by the All India Christian Council, www.christiancouncil.in Page 9 of 36
evidence to be taken.
The result of such enquiry and the additional evidence shall be
certified to the High Court by the District Judge, and the High Court
shall thereupon make an order confirming the decree for dissolution of
marriage, or such other order as to the Court seems fit:
Provided that no decree shall be confirmed under this section
till after the expiration of such time, not less than six months from
the pronouncing thereof, as the High Court by general or special order
from time to time directs.
During the progress of the suit in the Court of the District
Judge, any person suspecting that any parties to the suit are or have
been acting in collusion for the purpose of obtaining a divorce, shall
be at liberty, in such manner as the High Court by general or special
order from time to time directs. to apply to the High Court to remove
the suit under section eight, and the High Court shall thereupon, if
it thinks fit, remove such suit and try and determine the same as a
Court of original jurisdiction, and the provisions contained in
section sixteen shall apply to every suit so removed: or it may direct
the District Judge to take such steps in respect of the alleged
collusion as may be necessary to enable him to make a decree in
accordance with the justice of the case.
17A. Appointment of officer to exercise duties of King's Proctor.
1[17A. Appointment of officer to exercise duties of King's
Proctor.- 2[The Government of the State within which any High Court
exercises jurisdiction], may appoint an officer who shall, within the
jurisdiction of the High Court in that State, have the like right of
showing cause why a decree for the dissolution of a marriage should
not be made absolute or should not be confirmed, as the case may be,
as is exercisable in England by the King's Proctor; and the said
Government may make rules regulating the manner in which the right
shall be exercised and all matters incidental to or consequential on
any exercise of the right.
3* * * * *]
IV.-NULLITY OF MARRIAGE
18. Petition for decree of nullity.
18.Petition for decree of nullity.-Any husband or wife may
present a petition to the District Court or to the High Court, praying
that his or her marriage may be declared null and void.
19. Grounds of decree.
19.Grounds of decree.-Such decree may be made on any of the
following grounds:-
(1) that the respondent was impotent at the time of the marriage Collected by the All India Christian Council, www.christiancouncil.in Page 10 of 36
and at the time of the institution of the suit;
(2)that the parties are within the prohibited degrees of
consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the
marriage;
(4) that the former husband or wife of either party was living
at the time of the marriage, and the marriage with such former husband
or wife was then in force.
Nothing in this section shall affect the jurisdiction of the High
Court to make decrees of nullity of marriage on the ground that the
consent of either party was obtained by force or fraud.
20. Confirmation of District Judge's decree.
20.Confirmation of District Judge's decree.-Every decree of
nullity of marriage made by a District Judge shall be subject to
confirmation by the High Court, and the provisions of section
seventeen, clauses one, two, three and four, shall, mutatis mutandis
apply to such decrees.
21. Children of annulled marriage.
21. Children of annulled marriage.-Where a marriage is annulled
on the ground that a former husband or wife was living, and it is
adjudged that the subsequent marriage was contracted in good faith and
with the full belief of the parties that the former husband or wife
was dead, or when a marriage is annulled on the ground of insanity,
children begotten before the decree is made shall be specified in the
decree, and shall be entitled to succeed, in the same manner as
legitimate children, to the estate of the parent who at the time of
the marriage was competent to contract.
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1. Subs. by A.O. 1937, for the original s. 17A.
2. Subs. by Act 3 of 1951, s. 3 and Sch., for certain words.
3. Second paragraph omitted by s. 3., ibid.
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V.-JUDICIAL SEPARATION
22. Bar to decree for divorce a mensa et toro; but judicial separation
obtainable by husband or wife.
22. Bar to decree for divorce a mensa et toro; but judicial
separation obtainable by husband or wife.-No decree shall hereafter be
made for a divorce a mensa et toro, but the husband or wife may obtain
a decree of judicial separation, on the ground of adultery, or
cruelty, or desertion without reasonable excuse for two years or
upwards, and such decree shall have the effect of a divorce a mensa et Collected by the All India Christian Council, www.christiancouncil.in Page 11 of 36
toro under the existing law, and such other legal effect as
hereinafter mentioned.
23. Application for separation made by petition.
23. Application for separation made by petition.--Application
for judicial separation on any one of the grounds aforesaid, may be
made by either husband or wife by petition to the District Court or
the High Court; and the Court, on being satisfied of the truth of the
statements made in such petition, and that there is no legal ground
why the application should not be granted, may decree judicial
separation accordingly.
24. Separated wife deemed spinster with respect to after-acquired
property.
24.Separated wife deemed spinster with respect to after-acquired
property.-In every case of a judicial separation under this Act, the
wife shall, from the date of the sentence, and whilst the separation
continues, be considered as unmarried with respect to property of
every description which she may acquire, or which may come to or
devolve upon her.
Such property may be disposed of by her in all respects as an
unmarried woman, and on her decease the same shall, in case she dies
intestate, go as the same would have gone if her husband had been then
dead:
Provided that, if any such wife again cohabits with her husband,
all such property as she may be entitled to when such cohabitation
takes place shall be held to her separate use, subject, however, to
any agreement in writing made between herself and her husband whilst
separate.
25. Separated wife deemed spinster for purposes of contract and suing.
25.Separated wife deemed spinster for purposes of contract and
suing.-In every case of a judicial separation under this Act, the wife
shall, whilst so separated, be considered as an unmarried woman for
the purposes of contract, and wrongs and injuries, and suing and being
sued in any civil proceeding; and her husband shall not be liable in
respect of any contract, act or costs entered into, done, omitted or
incurred by her during the separation:
Provided that where, upon any such judicial separation, alimony
has been decreed or ordered to be paid to the wife, and the same is
not duly paid by the husband, he shall be liable for necessaries
supplied for her use:
Provided also that nothing shall prevent the wife from joining,
at any time during such separation, in the exercise of any joint power
given to herself and her husband. Collected by the All India Christian Council, www.christiancouncil.in Page 12 of 36
Reversal of Decree of Separation
26. Decree of Separation obtained during absence of husband or wife may be
reversed.
26. Decree of Separation obtained during absence of husband or
wife may be reversed.-Any husband or wife, upon the application of
whose wife or husband, as the case may be, a decree of judicial
separation has been pronounced, may, at any time thereafter, present a
petition to the Court by which the decree was pronounced, praying for
a reversal of such decree, on the ground that it was obtained in his
or her absence, and that there was reasonable excuse for the alleged
desertion, where desertion was the ground of such decree.
The Court may, on being satisfied of the truth of the allegations
of such petition, reverse the decree accordingly; but such reversal
shall not prejudice or affect the rights or remedies which any other
person would have had, in case it had not been decreed, in respect of
any debts, contracts, or acts of the wife incurred, entered into, or
done between the times of the sentence of separation and of the
reversal thereof.
VI.-PROTECTION-ORDERS
27. Deserted wife may apply to Court for protection.
27. Deserted wife may apply to Court for protection.-Any wife to
whom section 4 of the Indian Succession Act, 18651* (10 of 1865), does
not apply, may, when deserted by her husband, present a petition to
the District Court or the High Court, at any time after such
desertion, for an order to protect any property which she may have
acquired or may acquire, and any property of which she may have become
possessed or may become possessed after such desertion, against her
husband or his creditors, or any person claiming under him.
28. Court may grant protection-order.
28.Court may grant protection-order.-The Court, if satisfied of
the fact of such desertion. and that the same was without reasonable
excuse, and that the wife is maintaining herself by her
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1. See now the Indian Succession Act, 1925 (39 of 1925).
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own industry or property, may make and give to the wife an order
protecting her earnings and other property from her husband and all
creditors and persons claiming under him. Every such order shall
state the time at which the desertion commenced, and shall, as regards
all persons dealing with the wife in reliance thereon, be conclusive
as to such time.
29. Discharge of variation of orders.
29.Discharge of variation of orders.--The husband or any creditor Collected by the All India Christian Council, www.christiancouncil.in Page 13 of 36
of, or person claiming under him, may apply to the Court by which such
order was made for the discharge or variation thereof, and the Court,
if the desertion has ceased, or if for any other reason it thinks fit
so to do, may discharge or vary the order accordingly.
30. Liability of husband seizing wife's property after notice of order.
30.Liability of husband seizing wife's property after notice of
order.-If the husband, or any creditor of, or person claiming under,
the husband, seizes or continues to hold any property of the wife
after notice of any such order, he shall be liable, at the suit of the
wife (which she is hereby empowered to bring), to return or deliver to
her the specific property, and also to pay her a sum equal to double
its value.
31. Wife's legal position during continuance of order.
31.Wife's legal position during continuance of order.-So long as
any such order of protection remains in force, the wife shall be and
be deemed to have been, during such desertion of her, in the like
position in all respects, with regard to property and contracts and
suing and being sued, as she would be under this Act if she obtained a
decree of judicial separation.
VII.-RESTITUTION OF CONJUGAL RIGHTS
32. Petition for restitution of conjugal rights.
32.Petition for restitution of conjugal rights.-When either the
husband or the wife has without reasonable excuse, withdrawn from the
society of the other, either wife or husband may apply, by petition to
the District Court or the High Court, for restitution of conjugal
rights, and the Court, on being satisfied of the truth of the
statements made in such petition, Hand that there is no legal ground
why the application should not be granted, may decree restitution of
conjugal rights accordingly.
33. Answer to petition.
33.Answer to petition.-Nothing shall be pleaded in answer to a
petition for restitution of conjugal rights, which would not be ground
for a suit for judicial separation or for a decree of nullity of
marriage.
VIII.-DAMAGES AND COSTS
34. Husband may claim damages from adulterer.
34.Husband may claim damages from adulterer.-Any husband may,
either in a petition for dissolution of marriage or for judicial
separation, or in a petition to the District Court or the High Court
limited to such object only, claim damages from any person on the
ground of his having committed adultery with the wife of such
petitioner. Collected by the All India Christian Council, www.christiancouncil.in Page 14 of 36
Such petition shall be served on the alleged adulterer and the
wife, unless the Court dispenses with such service, or directs some
other service to be substituted.
The damages to be recovered on any such petition shall be
ascertained by the said Court, although the respondents or either of
them may not appear.
After the decision has been given, the Court may direct in what
manner such damages shall be paid or applied.
35. Power to order adulterer to pay costs.
35. Power to order adulterer to pay costs.-Whenever in any
petition presented by a husband the alleged adulterer has been made a
co-respondent, and the adultery his began established, the Court may
order the co-respondent to pay the whole or any part of the costs of
the proceedings:
Provided that the co-respondent shall not be ordered to pay the
petitioner's costs-
(1) if the respondent was, at the time of the adultery, living
apart from her husband and leading the life of a prostitute, or
(2) if the co-respondent had not, at the time of the adultery,
reason to believe the respondent to be a married woman.
Power to order litiguous intervenor to pay costs.
Power to order litigious intervenor to pay costs.-Whenever any
application is made under section 17, the Court, if it thinks that the
applicant had no grounds or no sufficient grounds for intervening, may
order him to pay the whole or any part of the costs occasioned by the
application.
IX.-ALIMONY
36. Alimony pendente lite.
36. Alimony pendente lite.--In any suit under this Act, whether
it be instituted by a husband of a wife, and whether or not she has
obtained an order of protection, the wife may present a petition for
alimony pending the suit.
Such petition shall be served on the husband; and the Court, on
being satisfied of the truth of the statements therein contained, may
make such order on the husband for payment to the wife of alimony
pending the suit as it may deem just:
Provided that alimony pending the suit shall in no case exceed
one-fifth of the husband's average net income for the three years next Collected by the All India Christian Council, www.christiancouncil.in Page 15 of 36
preceding the date of the order, and shall continue, in case of a
decree for dissolution of marriage or of nullity of marriage, until
the decree is made absolute or is confirmed, as the case may be.
37. Power to order permanent alimony.
37. Power to order permanent alimony.-The High Court may, if it
think fit, on any decree absolute declaring a marriage to be
dissolved, or on any decree of judicial separation obtained by the
wife,
and the District Judge may, if he thinks fit, on the confirmation
of any decree of his declaring a marriage to be dissolved, or on any
decree of judicial separation obtained by the wife,
order that the husband shall, to the satisfaction of the Court,
secure to the wife such gross sum of money, or such annual sum of
money for any term not exceeding her own life, as, having regard to
her fortune (if any), to the ability of the husband, and to the
conduct of the parties, it thinks reasonable; and for that purpose may
cause a proper instrument to be executed by all necessary parties.
Power to order monthly or weekly payments.
Power to order monthly or weekly payments.--In every such case
the Court may make an order on the husband for payment to the wife of
such monthly or weekly sums for her maintenance and support as the
Court may think reasonable:
Provided that if the husband afterwards from any cause becomes
unable to make such payments, it shall be lawful for the Court to
discharge or modify the order, or temporarily to suspend the same is
to the whole or any part of the money so ordered to be paid, and again
to revive the same order wholly or in part, as to the Court seems fit.
38. Court may direct payment of alimony to wife or to her trustee.
38. Court may direct payment of alimony to wife or to her
trustee.-In all cases in which the Court makes any decree or order for
alimony, it may direct the same to be paid either to the wife herself,
or to any trustee on her behalf to be approved by the Court, and may
impose any terms or restrictions which to the Court seem expedient,
and may from time to time appoint a new trustee, if it appears to' the
Court expedient so to do.
X.-SETTLEMENTS
39. Power to order settlement of wife's property for benefit of husband
and children.
39. Power to order settlement of wife's property for benefit of
husband and children.-Whenever the Court pronounces a decree of
dissolution of marriage or judicial separation for adultery of the Collected by the All India Christian Council, www.christiancouncil.in Page 16 of 36
wife, if it is made to appear to the Court that the wife is entitled
to any property, the Court may, if it think fit, order such settlement
as it thinks reasonable to be made of such property or any part
thereof, for the benefit of the husband, or of the children of the
marriage, or of both.
Any instrument executed pursuant to any order of the Court at the
time of or after the pronouncing of a decree of dissolution of
marriage or judicial separation, shall be deemed valid notwithstanding
the existence of the disability of coverture it the time of the
execution thereof.
Settlement of damages.
Settlement of damages.-The Court may direct that the whole or any
part of the damages recovered under section 34 shall be settled for
the benefit of the children of the marriage, or as a provision for the
maintenance of the wife.
40. Inquiry into existence of ante-nuptial or post-nuptial settlements.
40.Inquiry into existence of ante-nuptial or post-nuptial
settlements.-The High Court, after a decree absolute for dissolution
of marriage, or a decree of nullity of marriage,
and the District Court, after its decree for dissolution of
marriage or of nullity of marriage has been confirmed,
may inquire into the existence of ante-nuptial or post-nuptial
settlements made on the parties whose marriage is the subject of the
decree, and may make such orders, with reference to the application of
the whole or a portion of the property settled, whether for the
benefit of the husband of the wife, or of the children (if any) of the
marriage, or of both children and parents, as to the Court seems fit:
Provided that the Court shall not make any order for the benefit
of the parents or either of them at the expense of the children.
XI.-CUSTODY OF CHILDREN
41. Power to make orders as to custody of children in suit for separation.
41.Power to make orders as to custody of children in suit for
separation.-In any suit for obtaining a judicial separation the Court
may from time to time, before making its decree, make such interim
orders, and may make such provision in the decree, as it deems proper
with respect to the custody, maintenance and education of the minor
children, the marriage of whose parents is the subject of such suit,
and may, if it think fit, direct proceedings to be taken for placing
such children under the protection of the said Court.
42. Power to make such orders after decree. Collected by the All India Christian Council, www.christiancouncil.in Page 17 of 36
42. Power to make such orders after decree.- The Court, after a
decree of judicial separation, may upon application (by petition) for
this purpose make, from time to time, all such orders and provision,
with respect to the custody, maintenance and education of the minor
children, the marriage of whose parents is the subject of the decree,
or for placing such children under the protection of the said Court,
as might have been made by such decree or by interim orders in case
the proceedings for obtaining such decree were still pending.
43. Power to make orders as to custody of children in suits for
dissolution or nullity.
43.Power to make orders as to custody of children in suits for
dissolution or nullity.-In any suit for obtaining a dissolution of
marriage or a decree of nullity of marriage instituted in, or removed
to, a High Court, the Court may from time to time, before making its
decree absolute or its decree (as the case may be), make such interim
orders, and may make such provision in the decree absolute or decree,
and in any such suit instituted in a District Court, the Court
may from time to time, before its decree is confirmed, make such
interim orders, and may make such provision on such confirmation,
as the High Court or District Court (as the case may be) deems
proper with respect to the custody, maintenance and education of the
minor children, the marriage of whose parents is the subject of the
suit,
and may, if it think fit, direct proceedings to be taken for
placing such children under the protection of the Court.
44. Power to make such orders after decree or confirmation.
44. Power to make such orders after decree or confirmation.-The
High Court after a decree absolute for dissolution of marriage or a
decree of nullity of marriage,
and the District Court, after a decree for dissolution of
marriage or of nullity of marriage has been confirmed,
may, upon application by petition for the purpose, make from time
to time all such orders and provision, with respect to the custody,
maintenance and education of the minor children, the in marriage of
whose parents was the subject of the decree, or for placing such
children under the protection of the said Court, as might have been
made by such decree absolute or decree (as the case may be), or by
such interim orders as aforesaid.
XII.-PROCEDURE
45. Code of Civil Procedure to apply.
45.Code of Civil Procedure to apply.-Subject to the provisions Collected by the All India Christian Council, www.christiancouncil.in Page 18 of 36
herein contained, all proceedings under this Act between party and
party shall be regulated by the Code of Civil Procedure1*.
46. Forms of petitions and statements.
46.Forms of petitions and statements.-The forms set forth in the
schedule to this Act, with such variation as the circumstances of each
case require, may be used for the respective purposes mentioned in
such schedule.
47. Petition to state absence of collusion.
47.Petition to state absence of collusion.-Every petition under
this Act for a decree of dissolution of marriage, or of nullity of
marriage, or of judicial separation 2 * * * shall 3* * * state that
there is not any collusion or connivance between the petitioner and
the other patty to the marriage.
Statements to be verified.
Statements to be verified.-The statements contained in every
petition under this Act shall be verified by the petitioner or some
other competent person in manner required by law for the verification
of plaints, and may at the hearing be referred to as evidence.
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1. See now the Code of Civil Procedure, 1008 (Act 5 of 1908).
2. The words "or of reversal of judicial separation, or for
restitution of conjugal rights, or for damages, shall bear a stamp of
five rupees, and" rep. by Act 7 of 1870.
3. The words " in the first, second and third cases mentioned in
this section," rep., ibid.
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48. Suits on behalf of lunatics.
48.Suits on behalf of lunatics.-When the husband or wife is a
lunatic or idiot, any suit under this Act (other than a suit for
restitution of conjugal rights) may be brought on his or her behalf by
the committee or other person entitled to his or her custody.
49. Suits by minors.
49.Suits by minors.-Where the petitioner is a minor, he or she
shall sue by his or her next friend to be approved by the Court; and
no petition presented by a minor under this Act shall be filed until
the next friend has undertaken in writing to be answerable for costs.
Such undertaking 1* * * shall be filed in Court, and the next
friend shall thereupon be liable in the same manner and to the same
extent as if he were a plaintiff in an ordinary suit.
50. Service of petition
50.Service of petition.-Every petition under this Act shall be
served on the party to be affected thereby, either within or without Collected by the All India Christian Council, www.christiancouncil.in Page 19 of 36
2[India], in such manner is the High Court by general or special order
from time to time directs:
Provide that the Court may dispense with such service altogether
in case it seems necessary or expedient so to do.
51. Mode of taking evidence.
51. Mode of taking evidence.-The witnesses in all proceedings
before the Court, where their attendance can be had, shall be examined
orally, and any party may offer himself or herself as a witness, and
shall be examined, and may be cross-examined and re-examined, like any
other witness:
Provided that the parties shall be at liberty to verify their
respective cases in whole or in part by affidavit, but so that the
deponent in every such affidavit shall, on the application of the
opposite party, or by direction of the Court, be select to be cross-
examined by or on behalf of the opposite party orally, and after such
cross-examination may be re-examined orally as aforesaid by or on
behalf of the party by whom such affidavit was filed.
52. Competence of husband and wife to give evidence as to cruelly or
desertion.
52.Competence of husband and wife to give evidence as to cruelly
or desertion.-On any petition presented by a wife, praying that her
marriage may be dissolved by reason of her husband having been guilty
of adultery coupled with cruelty, or of adultery coupled with
desertion without reasonable excuse, the husband and wife respectively
shall be competent and compellable to give evidence of or relating to
such cruelty or desertion.
53. Power to close doors.
53.Power to close doors.-The whole or any part of any proceeding
under this Act may be heard, if the Court thinks fit, with closed
doors.
54. Power to adjourn.
54.Power to adjourn.-The Court may from time to time adjourn the
hearing of any petition under this Act, and may require further
evidence thereon if it sees fit so to do.
55. Enforcement of, and appeal from, orders and decrees.
55.Enforcement of, and appeal from, orders and decrees.--All
decrees and orders made by the Court in any suit or proceeding under
this Act shall be enforced and may be appealed from, in the like
manner as the decrees and orders of the Court made in the exercise of
its original civil jurisdiction are enforced and may be appealed from,
under the laws, rules and orders for the time bring in force:
Provided that there shall be no appeal from a decree of a Collected by the All India Christian Council, www.christiancouncil.in Page 20 of 36
District Judge for dissolution of marriage or of nullity of marriage;
nor from the order of the High Court confirming or refusing to confirm
such decree:
No appeal as to costs.
No appeal as to costs.-Provided also that there shall be no
appeal on the subject of costs only.
56. Appeal to the Supreme Court.
56.Appeal to the Supreme Court.-Any person may appeal to 3*[the
Supreme Court] from any decree (other than a decree nisi) or order
under this Act of a High Court made on' appeal or otherwise,
and from any decree (other than a decree nisi) or order made in
the exercise of original jurisdiction by Judges of a High Court or of
any Division Court from which an appeal shall not lie to the High
Court,
when the High Court declares that the case is a fit one for
appeal to 3*[the Supreme Court].
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1. The words "shall bear a stamp of eight annas and" rep. by Act 7
of 1870, ibid.
2. subs. by A. O. 1950, for "the Provinces" which had been subs. by
A. O. 1948, for British India".
3. Subs. by A.O. 1950, for "Her Majesty in Council".
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XIII.-RE-MARRIAGE
57. Liberty to parties to marry again.
57.Liberty to parties to marry again.-When six months after the
date of an order of a High Court confirming the decree for a
dissolution of marriage made by a District Judge have expired,
or when six months after the date of' any decree of a high Court
dissolving a marriage have expired, and no appeal has been presented
against such decree to the High Court in its appellate jurisdiction,
or when any such appeal has been dismissed,
or when in the result of any such appeal any marriage is declared
to be dissolved,
but not sooner, it shall be lawful for the respective parties to the
marriage to marry again, as if the prior marriage had been dissolved
by death:
Provided that no appeal to 1*[the Supreme Court] has been Collected by the All India Christian Council, www.christiancouncil.in Page 21 of 36
presented against any such order or decree.
When such appeal has been dismissed, or when in the result
thereof the marriage is declared to be dissolved, but not sooner, it
shall be lawful for the respective parties to the marriage to marry
again as if the prior marriage had been dissolved by death.
58. English clergyman not compelled to solemnize marriages of persons
divorced for adultery.
58.English clergyman not compelled to solemnize marriages of
persons divorced for adultery.--No clergyman in Holy Orders of the 2'*
* * No Church of England 3* * * shall be compelled to solemnize the
marriage of any person whose former marriage has been dissolved on the
ground of his or her adultery, or shall be liable to any suit, penalty
or censure for solemnizing or refusing to solemnize the marriage of
any such person.
59. English Minister refusing to perform ceremony to permit use of his
church.
59.English Minister refusing to perform ceremony to permit use of
his Church.-When any Minister of any Church or Chapel of the said 2***
Church refuses to perform such marriage service between any persons
who but for such refusal would be entitled to have the same service
performed in such Church or Chapel, such Minister shall permit any
other Minister in Holy Orders of the said Church, entitled to
officiate within the diocese in which such Church or Chapel is
situate, to perform such marriage-service in such Church or Chapel.
XIV.--MISCELLANEOUS
60. Decree for separation or protection-order valid as to persons dealing
with wife before reversal.
60. Decree for separation or protection-order valid as to
persons dealing with wife before reversal.-Every decree for judicial
separation or order to protect property, obtained by a wife under this
Act shall, until reversed or discharged, be deemed valid, so far as
necessary, for the protection of any person dealing with the wife.
No reversal, discharge or variation of such decree or order shall
affect any rights or remedies which any person would otherwise have
had in respect of any contracts or acts of the wife entered into or
done between the dates of such decree or order, and of the reversal,
discharge or variation thereof.
Indemnity of persons making payment to wife without notice of reversal
of decree or protection order.
Indemnity of persons making payment to wife without notice of
reversal of decree or protection order.-- All persons who in reliance
on any such decree or order make any payment to, or permit any Collected by the All India Christian Council, www.christiancouncil.in Page 22 of 36
transfer or act to be made or done by, the wife who has obtained the
same shall, notwithstanding such decree or order may then have been
reversed, discharged or varied, or the separation of the wife from her
husband may have ceased, or at some Lime since the making of the
decree or order been discontinued, be protected and indemnified as if,
at the time of such payment, transfer or other act, such decree or
order were valid and still subsisting without variation, and the
separation had not ceased or been discontinued,
unless, at the time of the, payment, transfer or other act, such
persons had notice of the reversal, discharge or variation of the
decree or order or of the cessation or discontinuance of the
separation.
61. Bar of suit for criminal conversation.
61. Bar of suit for criminal conversation.-After this Act comes
into operation, no person competent to present a petition under
sections 2 and 10 shall maintain a suit for criminal conversation with
his wife.
62. Power to make rules.
62. Power to make rules.-The High Court shall make such rules
under this Act as it may from time to time consider expedient, and may
from time to time alter and add to the same:
Provided that such rules, alterations and additions are
consistent with the provisions of this Act and the Code of Civil
Procedure4*.
All such rules, alterations and additions shall be published in
the Official Gazette.
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1. Subs. by A.O. 1950, for "Her Majesty in Council".
2. The word "United" rep. by Act 12 of 1873, s. 1 and Sch.
3. The words "and Ireland" rep. by s. 1 and Sch. ibid.
4. See now the Code of civil Procedure, 1908 (5 of 1908).
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