THE DIVORCE ACT, 1869
1 Short title,
commencement of Act. This Act may be called
the [***] Divorce Act, and shall come into operation on the first day of April,
1869.
commencement of Act. This Act may be called
the [***] Divorce Act, and shall come into operation on the first day of April,
1869.
2 Extent of Act. – 1 [This Act extends to 2 [the
whole of India 3 [except the State of Jammu and Kashmir ]]]. Extent of power to
grant relief generally, – 4 [Nothing hereinafter contained shall authorise any
Court to grant any relief under this Act except where the petitioner 5 [or
respondent] professes the Christian religion, 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 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.]
whole of India 3 [except the State of Jammu and Kashmir ]]]. Extent of power to
grant relief generally, – 4 [Nothing hereinafter contained shall authorise any
Court to grant any relief under this Act except where the petitioner 5 [or
respondent] professes the Christian religion, 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 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.—
In this Act, unless there be something repugnant in the subject or context,—
In this Act, unless there be something repugnant in the subject or context,—
6 [(1) High
Court means with reference to any area
Court means with reference to any area
(a) in a State, the
High Court for that State;
High Court for that State;
7 [(b) in Delhi, the
High Court of Delhi; 8 [***]]
High Court of Delhi; 8 [***]]
(c) in Manipur and
Tripura, the High Court of Assam;
Tripura, the High Court of Assam;
(d) in the Andaman and
Nicobar Islands, the High Court at Calcutta;
Nicobar Islands, the High Court at Calcutta;
(e) in 9 [ Lakshadweep
], the High Court of Kerala;
], the High Court of Kerala;
10 [(ee) in Chandigarh,
the High Court of Punjab and Haryana,] 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:]
the High Court of Punjab and Haryana,] 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:]
11 [(2) District
Judge means a Judge of a principal Civil Court of original jurisdiction however
designated;]
Judge means a Judge of a principal Civil Court of original jurisdiction however
designated;]
(3) 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, 12 [or of whose
jurisdiction under this Act the marriage was solemnized or], the husband and
wife reside or last resided together:
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, 12 [or of whose
jurisdiction under this Act the marriage was solemnized or], the husband and
wife reside or last resided together:
(4) Court means the High Court or the District Court, as the case may be:
(5) 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: 13 [***]
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: 13 [***]
(8) 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 14 [ India ] or elsewhere:
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 14 [ India ] or elsewhere:
(9) desertion,
implies an abandonment against the wish of the person charging it; and
implies an abandonment against the wish of the person charging it; and
(10) 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 administratix;
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 administratix.
estate in remainder or reversion or as a trustee, executrix or administratix;
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 administratix.
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 contained, and not otherwise: except so far as relates to the
granting of marriage-licenses, which may be granted as if this Act had not been
passed.
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 contained, and not otherwise: except so far as relates to the
granting of marriage-licenses, which may be granted as if this Act had not been
passed.
5. Enforcement of decrees or orders made
heretofore by Supreme Court 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 hereinafter 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.
heretofore by Supreme Court 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 hereinafter 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. 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.
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. [ Rep. by the
Indian Divorce (Amendment) Act, 2001 (51 of 2001), sec. 4 (w.e.f. 3-10-2001). ]
principles of English Divorce Court. [ Rep. by the
Indian Divorce (Amendment) Act, 2001 (51 of 2001), sec. 4 (w.e.f. 3-10-2001). ]
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. 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.
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. 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. 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.
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.
15 [10 Grounds for
dissolution of marriage.
dissolution of marriage.
(1) Any marriage
solemnized, whether before or after the commencement* of the Indian Divorce
(Amendment) Act, 2001, may, on a petition presented to the District Court
either by the husband or the wife, be dissolved on the ground that since the solemnization
of the marriage, the respondent
solemnized, whether before or after the commencement* of the Indian Divorce
(Amendment) Act, 2001, may, on a petition presented to the District Court
either by the husband or the wife, be dissolved on the ground that since the solemnization
of the marriage, the respondent
(i) has committed
adultery; or
adultery; or
(ii) has ceased to be
Christian by conversion to another religion; or
Christian by conversion to another religion; or
(iii) has been
incurably of unsound mind for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
incurably of unsound mind for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(iv) has, for a period
of not less than two years immediately preceding the presentation of the
petition, been suffering from a virulent and incurable form of leprosy; or
of not less than two years immediately preceding the presentation of the
petition, been suffering from a virulent and incurable form of leprosy; or
(v) has, for a period
of not less than two years immediately preceding the presentation of the
petition, been suffering from venereal disease in a communicable form; or
of not less than two years immediately preceding the presentation of the
petition, been suffering from venereal disease in a communicable form; or
(vi) has not been heard
of as being alive for a period of seven years or more by those persons who
would naturally have heard of the respondent if the respondent had been alive;
or
of as being alive for a period of seven years or more by those persons who
would naturally have heard of the respondent if the respondent had been alive;
or
(vii) has wilfully
refused to consummate the marriage and the marriage has not therefore been
consummated; or
refused to consummate the marriage and the marriage has not therefore been
consummated; or
(viii) has failed to
comply with a decree for restitution of conjugal rights for a period of two
years or upwards after the passing of the decree against the respondent; or
comply with a decree for restitution of conjugal rights for a period of two
years or upwards after the passing of the decree against the respondent; or
(ix) has deserted the
petitioner for at least two years immediately preceding the presentation of the
petition; or
petitioner for at least two years immediately preceding the presentation of the
petition; or
(x) has treated the
petitioner with such cruelty as to cause a reasonable apprehension in the mind
of the petitioner that it would be harmful or injurious for the petitioner to
live with the respondent.
petitioner with such cruelty as to cause a reasonable apprehension in the mind
of the petitioner that it would be harmful or injurious for the petitioner to
live with the respondent.
(2) A wife may also
present a petition for the dissolution of her marriage on the ground that the
husband has, since the solemnization of the marriage, been guilty of rape,
sodomy or bestiality.]
present a petition for the dissolution of her marriage on the ground that the
husband has, since the solemnization of the marriage, been guilty of rape,
sodomy or bestiality.]
16 [ 10A Dissolution of
marriage by mutual consent.
marriage by mutual consent.
(1) Subject to the
provisions of this Act and the rules made thereunder, a petition for
dissolution of marriage may be presented to the District Court by both the
parties to a marriage together, whether such marriage was solemnized before or
after the commencement* of the Indian Divorce (Amendment) Act, 2001, on the
ground that they have been living separately for a period of two years or more,
that they have not been able to live together and they have mutually agreed
that the marriage should be dissolved.
provisions of this Act and the rules made thereunder, a petition for
dissolution of marriage may be presented to the District Court by both the
parties to a marriage together, whether such marriage was solemnized before or
after the commencement* of the Indian Divorce (Amendment) Act, 2001, on the
ground that they have been living separately for a period of two years or more,
that they have not been able to live together and they have mutually agreed
that the marriage should be dissolved.
(2) On the motion of
both the parties made not earlier than six months after the date of
presentation of the petition referred to in sub-section (1) and not later than
eighteen months after the said date, if the petition is not withdrawn by both
the parties in the meantime, the Court shall, on being satisfied, after hearing
the parties and making such inquiry, as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree
declaring the marriage to be dissolved with effect from the date of decree.]
both the parties made not earlier than six months after the date of
presentation of the petition referred to in sub-section (1) and not later than
eighteen months after the said date, if the petition is not withdrawn by both
the parties in the meantime, the Court shall, on being satisfied, after hearing
the parties and making such inquiry, as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree
declaring the marriage to be dissolved with effect from the date of decree.]
17 [ 11 Adulterer or adulteress
to be co-respondent. On a petition for
dissolution of marriage presented by a husband or wife on the ground of
adultery, the petitioner shall make the alleged adulterer or adulteress a
co-respondent, unless the petitioner is excused by the Court from so doing on
any of the following grounds, namely:
to be co-respondent. On a petition for
dissolution of marriage presented by a husband or wife on the ground of
adultery, the petitioner shall make the alleged adulterer or adulteress a
co-respondent, unless the petitioner is excused by the Court from so doing on
any of the following grounds, namely:
(a) that the wife,
being the respondent is leading the life of a prostitute or the husband, being
respondent is leading an immoral life and that the petitioner knows of no
person with whom the adultery has been committed;
being the respondent is leading the life of a prostitute or the husband, being
respondent is leading an immoral life and that the petitioner knows of no
person with whom the adultery has been committed;
(b) that the name of
the alleged adulterer or adulteress is unknown to the petitioner although the
petitioner has made due efforts to discover it;
the alleged adulterer or adulteress is unknown to the petitioner although the
petitioner has made due efforts to discover it;
(c) that the alleged
adulterer or adulteress is dead.]
adulterer or adulteress is dead.]
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 through 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.
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 through 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. 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 the petition. 18 [***]
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 the petition. 18 [***]
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 19 [***]: 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 complaned of, and without reasonable excuse, or of such wilful
neglect or misconduct of or towards the other party as has conduced to the
adultery.
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 19 [***]: 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 complaned 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: No
adultery shall be deemed to have been condoned within the meaning of this Act
unless where conjugal cohabitation has been resumed or continued.
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. 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 20 [***] or, in case of such a suit instituted by a wife,
on the ground of 21 [her adultery or cruelty or desertion], 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 22 [such adultery, cruelty] or desertion.
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 20 [***] or, in case of such a suit instituted by a wife,
on the ground of 21 [her adultery or cruelty or desertion], 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 22 [such adultery, cruelty] or desertion.
16 Decrees for
dissolution to be nisi. Every decree for
dissolution of marriage made by a High Court 23 [***] 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.
dissolution to be nisi. Every decree for
dissolution of marriage made by a High Court 23 [***] 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 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 cost
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. State Amendment Uttar Pradesh In
section 16
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 cost
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. State Amendment Uttar Pradesh In
section 16
(1) In the first
paragraph the words made by a High Court,
not being a confirmation of a decree of a District Court and or
special shall be omitted.
paragraph the words made by a High Court,
not being a confirmation of a decree of a District Court and or
special shall be omitted.
(2) In the second
paragraph the words or special occurring between the words general and order,
shall be omitted.
paragraph the words or special occurring between the words general and order,
shall be omitted.
(3) In the fourth and
fifth paragraphs for the words High Court,
the word Court shall be substituted. [ Vide U.P. Act XXX of 1957, sec. 2 and Sch. (w.e.f.
21-10-1957).]
fifth paragraphs for the words High Court,
the word Court shall be substituted. [ Vide U.P. Act XXX of 1957, sec. 2 and Sch. (w.e.f.
21-10-1957).]
24 [ 17 Power of High
Court to remove certain suits. 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 8, and the 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 16 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.]
Court to remove certain suits. 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 8, and the 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 16 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.]
25 [17A Appointment of
officer to exercise duties of kings proctor. [ Rep. by the
Indian Divorce (Amendment) Act, 2001 (51 of 2001), sec. 13 (w.e.f. 3-10-2001).
]]
officer to exercise duties of kings proctor. [ Rep. by the
Indian Divorce (Amendment) Act, 2001 (51 of 2001), sec. 13 (w.e.f. 3-10-2001).
]]
18 Petition for decree
of nullity. Any
husband or wife may present a petition to the District Court 26 [***] praying
that his or her marriage may be declared null and void.
of nullity. Any
husband or wife may present a petition to the District Court 26 [***] praying
that his or her marriage may be declared null and void.
19. Grounds of decree. Such
decree may be made on any of the following grounds:
decree may be made on any of the following grounds:
(1) that the respondent
was impotent at the time of the marriage and at the time of the institution of
the suit;
was impotent at the time of the marriage and at the time of the institution of
the suit;
(2) that the parties
are within the prohibited degree of consanguinity (whether natural or legal) or
affinity;
are within the prohibited degree of consanguinity (whether natural or legal) or
affinity;
(3) that either party
was a lunatic or idiot at the time of the marriage;
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 27 [jurisdiction of the District Court] to make
decrees of nullity of marriage on the ground that the consent of either party
was obtained by force or fraud.
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 27 [jurisdiction of the District 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. [ Rep. by the Indian
Divorce (Amendment) Act, 2001 (51 of 2001), sec. 16 (w.e.f. 3-10-2001). ]
District Judge’s decree. [ Rep. by the Indian
Divorce (Amendment) Act, 2001 (51 of 2001), sec. 16 (w.e.f. 3-10-2001). ]
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.
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.
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 28 [***] for two years or upwards, and such decree
shall have the effect of a divorce a mensa et toro under the existing law, and
such other legal effect as hereinafter mentioned.
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 28 [***] for two years or upwards, and such decree
shall have the effect of a divorce a mensa et toro under the existing law, and
such other legal effect as hereinafter mentioned.
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 29 [***] 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.
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 29 [***] 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. 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.
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. 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 proceedings; 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.
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 proceedings; 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.
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.
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.
27 Deserted wife may
apply to Court for protection. Any wife to whom
section 4 of the Indian Succession Act, 1865 (10 of 1865) 30 does not apply,
may, when deserted by her husband, present a petition to the District Court 31
[***], 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.
apply to Court for protection. Any wife to whom
section 4 of the Indian Succession Act, 1865 (10 of 1865) 30 does not apply,
may, when deserted by her husband, present a petition to the District Court 31
[***], 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. 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 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.
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 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 or
variation of orders. The husband or any
creditor 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.
variation of orders. The husband or any
creditor 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. 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.
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. 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.
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.
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 32 [***] for restitution of conjugal rights, 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
restitution of conjugal rights accordingly.
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 32 [***] for restitution of conjugal rights, 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
restitution of conjugal rights accordingly.
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.
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.
34 Husband may claim
damages from adulterer. [ Rep. by the Indian
Divorce (Amendment) Act, 2001 (51 of 2001), sec. 19 (w.e.f. 3-10-2001). ]
damages from adulterer. [ Rep. by the Indian
Divorce (Amendment) Act, 2001 (51 of 2001), sec. 19 (w.e.f. 3-10-2001). ]
35 Power to order
adulterer to pay cost. [ Rep. by the Indian Divorce
(Amendment) Act, 2001 (51 of 2001), sec. 20 (w.e.f. 3-10-2001)].
adulterer to pay cost. [ Rep. by the Indian Divorce
(Amendment) Act, 2001 (51 of 2001), sec. 20 (w.e.f. 3-10-2001)].
36 Alimony pendente
lite. In
any suit under this Act, whether it be instituted by a husband or a wife, and
whether or not she has obtained an order of protection 33 [the wife may present
a petition for expenses of the proceedings and 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 34 [for payment to the wife of the expenses of the proceedings and
alimony pending the suit] as it may deem just: 35 [***] 36 [Provided further
that the petition for the expenses of the poceedings and alimony pending the
suit, shall, as far as possible, be disposed of within sixty days of service of
such petition on the husband.]
lite. In
any suit under this Act, whether it be instituted by a husband or a wife, and
whether or not she has obtained an order of protection 33 [the wife may present
a petition for expenses of the proceedings and 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 34 [for payment to the wife of the expenses of the proceedings and
alimony pending the suit] as it may deem just: 35 [***] 36 [Provided further
that the petition for the expenses of the poceedings and alimony pending the
suit, shall, as far as possible, be disposed of within sixty days of service of
such petition on the husband.]
37 Power to order
permanent alimony. 37 [Where a decree of
dissolution of the marriage or a decree of judicial separation is obtained by
the wife, the District Court may 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. 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 as 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.
permanent alimony. 37 [Where a decree of
dissolution of the marriage or a decree of judicial separation is obtained by
the wife, the District Court may 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. 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 as 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. 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.
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.
39 Power to order
settlement of wife’s property for benefit of husband and children. [
Rep. by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), sec. 23 (w.e.f.
3-10-2001) ].
settlement of wife’s property for benefit of husband and children. [
Rep. by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), sec. 23 (w.e.f.
3-10-2001) ].
40 Inquiry into
existence of ante-nuptial or post-nuptial settlements. 38 [The District Court may, before passing a decree for dissolution of the
marriage or a decree of nullity of marriage, 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 or 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.
existence of ante-nuptial or post-nuptial settlements. 38 [The District Court may, before passing a decree for dissolution of the
marriage or a decree of nullity of marriage, 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 or 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.
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 thinks fit, direct proceedings to be taken for
placing such children under the protection of the said Court: 39 [Provided that
the application with respect to the maintenance and education of the minor
children pending the suit, shall, as far as possible, be disposed of within
sixty days from the date of service of notice on the respondent.]
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 thinks fit, direct proceedings to be taken for
placing such children under the protection of the said Court: 39 [Provided that
the application with respect to the maintenance and education of the minor
children pending the suit, shall, as far as possible, be disposed of within
sixty days from the date of service of notice on the respondent.]
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 provisions, 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.
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 provisions, 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. 40 [In any suit for obtaining a dissolution of marriage or a decree of nullity
of marriage instituted in a District Court, the Court may from time to time
before making its decree, make such interim orders as it may deem 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 thinks
fit, direct proceedings to be taken for placing such children under the
protection of the Court.
as to custody of children in suits for dissolution or nullity. 40 [In any suit for obtaining a dissolution of marriage or a decree of nullity
of marriage instituted in a District Court, the Court may from time to time
before making its decree, make such interim orders as it may deem 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 thinks
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. 41 [Where a
decree of dissolution or nullity of marriage has been passed, the District
Court 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 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.
orders after decree or confirmation. 41 [Where a
decree of dissolution or nullity of marriage has been passed, the District
Court 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 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.
45 Code of Civil
Procedure to apply. Subject to the
provisions herein contained, all proceedings under this Act between party and
party shall be regulated by the 42 [Code of Civil Procedure, 1908 (5 of 1908)].
Procedure to apply. Subject to the
provisions herein contained, all proceedings under this Act between party and
party shall be regulated by the 42 [Code of Civil Procedure, 1908 (5 of 1908)].
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.
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. Every petition under
this Act for a decree of dissolution of marriage, or of nullity of marriage, or
of judicial separation 43 [***] shall 44 [***] state that there is not any
collusion or connivance between the petitioner and the other party to the
marriage. 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.
absence of collusion. Every petition under
this Act for a decree of dissolution of marriage, or of nullity of marriage, or
of judicial separation 43 [***] shall 44 [***] state that there is not any
collusion or connivance between the petitioner and the other party to the
marriage. 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.
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.
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. 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 45 [***] 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.
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 45 [***] 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.
Every
petition under this Act shall be served on the party to be affected thereby,
either within or without 46 [ India ], in such manner as the High Court by
general or special order from time to time directs: Provided that the Court may
dispense with such service altogether in case it seems necessary or expedient
so to do. state amendment Uttar Pradesh.—For the words “High Court by
general or special order from time to time directs”, the words “Court
may direct” shall be substituted. [Vide U.P. Act XXX of 1957, sec. 2 and
sch. (w.e.f. 21-10-1957).]
Every
petition under this Act shall be served on the party to be affected thereby,
either within or without 46 [ India ], in such manner as the High Court by
general or special order from time to time directs: Provided that the Court may
dispense with such service altogether in case it seems necessary or expedient
so to do. state amendment Uttar Pradesh.—For the words “High Court by
general or special order from time to time directs”, the words “Court
may direct” shall be substituted. [Vide U.P. Act XXX of 1957, sec. 2 and
sch. (w.e.f. 21-10-1957).]
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 subject
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.
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 subject
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 cruelty or desertion. On
any petition presented 47 [by a husband or a wife, praying that his or her
marriage may be dissolved by reason of his wife or her husband, as the case may
be, having been guilty of adultery, cruelty or desertion], the husband and wife
respectively shall be competent and compellable to give evidence of or relating
to such cruelty or desertion.
husband and wife to give evidence as to cruelty or desertion. On
any petition presented 47 [by a husband or a wife, praying that his or her
marriage may be dissolved by reason of his wife or her husband, as the case may
be, having been guilty of adultery, cruelty or desertion], 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. The
whole or any part of any proceeding under this Act may be heard, if the Court thinks
fit, with closed doors.
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. 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.
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. 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 being
in force: 48 [***] No appeal as to costs. 49 [Provided]
that there shall be no appeal on the subject of costs only.
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 being
in force: 48 [***] No appeal as to costs. 49 [Provided]
that there shall be no appeal on the subject of costs only.
56 Appeal to the
Supreme Court. Any person may appeal to
50 [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 51 [the Supreme Court].
Supreme Court. Any person may appeal to
50 [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 51 [the Supreme Court].
52 [ 57 Liberty to
parties to marry again. Where a decree for
dissolution or nullity of marriage has been passed and either the time for
appeal has expired without an appeal having been presented to any court
including the Supreme Court or an appeal has been presented but has been
dismissed and the decree or dismissal has become final, it shall be lawful for
either party to the marriage to marry again.] state amendment Uttar Pradesh. For
the existing section, the following section shall be substituted:
parties to marry again. Where a decree for
dissolution or nullity of marriage has been passed and either the time for
appeal has expired without an appeal having been presented to any court
including the Supreme Court or an appeal has been presented but has been
dismissed and the decree or dismissal has become final, it shall be lawful for
either party to the marriage to marry again.] state amendment Uttar Pradesh. For
the existing section, the following section shall be substituted:
57.
Liberties to parties to marry again. When six months after
the date of any decree absolute dissolving a marriage have expired, and no
appeal has been presented against such decree, 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. [ Vide U.P. Act XXX of 1957, sec. 2 and sch. (w.e.f. 21-10-1959).]
Liberties to parties to marry again. When six months after
the date of any decree absolute dissolving a marriage have expired, and no
appeal has been presented against such decree, 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. [ Vide U.P. Act XXX of 1957, sec. 2 and sch. (w.e.f. 21-10-1959).]
58 English clergyman
not compelled to solemnize marriages of persons divorced for adultery. No
clergyman in Holy Orders of the 53 [***] Church of England 54 [***] 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.
not compelled to solemnize marriages of persons divorced for adultery. No
clergyman in Holy Orders of the 53 [***] Church of England 54 [***] 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. When
any Minister of any Church or Chapel of the said 55 [***] 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.
refusing to perform ceremony to permit use of his Church. When
any Minister of any Church or Chapel of the said 55 [***] 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.
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. All persons who in
reliance on any such decree or order make any payment to, or permit any
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 time 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 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.
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. All persons who in
reliance on any such decree or order make any payment to, or permit any
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 time 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 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. 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.
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.
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 56 [Code of Civil Procedure, 1908 (5 of 1908)].
All such rules, alteration and additions shall be published in the Official
Gazette.
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 56 [Code of Civil Procedure, 1908 (5 of 1908)].
All such rules, alteration and additions shall be published in the Official
Gazette.