Updated: Thursday May 22, 2014/AlKhamis
Rajab 23, 1435/Bruhaspathivara
Jyaistha 01, 1936, at 05:44:28 PM
The Divorce Act, 1869
ACT No. IV OF 1869
(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, tbid.,1863, Supplement, p. 43, and Gazette of India, 1869,
Supplement, p. 291.
The Act extends to
Provision was made by the Indian Divorces (Validity)
Act (11 & 12 Geo. 5, ch. 18) with respect to the validity of certain
decrees granted in
The Limitation Act does not apply to suits under this Act,
see the Limitation Act, 1908 (9 of 1908), s. 29 (2).
It has been declared to be in force in
It has been applied to Phulera in the Excluded Area of
Upper Tanawal to the extent the Act is applicable in the N: W.F.P., subject to
certain modifications, and extended to the Excluded Area of Upper Tanawal (N:
W.F.P.) other than Phulera with effect from such date and subject to such
modifications as may be notified, see N: W.F.P. (Upper Tanawal) (Excluded Area)
Laws Regulation, 1950.
It has also been extended to the Leased Areas of
Baluchistan, see the Leased Areas (Laws) Order, 1950 (G. G. O. 3 of 1950) ; and
applied in the Federated Areas of Baluchistan, see Gazette of India, 1937, Pt.
I, p.1499)
26th February, 1869]
An Act to amend the law relating to Divorce and
Matrimonial Causes (The words “in
India “omitted by A. O., 1949, Sch).
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:---
I. PRELIMINARY
1. Short title. Commencement of Act This Act may be called the (The word “Indian”
omitted, ibid.) Divorce Act, and shall come into operation on the first
day of April, 1869.
2. Extent of Act. (The original paragraph has successively been amended by A. O.,
1949 and the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3
and 2nd Sch. (with effect from the 14th October, 1955), to read as above)
[This Act extends to the whole of
Extent of power to grant relief generally and to make
decrees of dissolution, Or of nullity (Subs.
by the Divorce (Amendment) Act, 1926 (25of 1926), for the original paragraph)[Nothing
hereinafter contained shall authorize any Court to grant any relief under this
Act except where the petitioner (Ins. by the Divorce (Second Amendment)
Act, 1927 (30 of 1927), s. 2.) [ or respondent] professes the Christian
religion,
or to make decrees of dissolution of marriage except
where the parties to the marriage are domiciled in (Subs. by A. O.,
1949, Sch., for “ India”.) [
(Subs. by
the Divorce (Amendment) Act, 1950 (57 of 1950), s. 2, for the original sub‑paragraph.)
[or to make decrees of nullity of marriage except where the, marriage if
solemnized before the 15th day of August, 1947, has been solemnized in India
and if solemnized on or after that date has been solemnized in Pakistan and the
petitioner is resident in Pakistan 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 (Subs. by A. O., 1949, Sch., for “ India”.)
[
3. Interpretation‑clause. In this Act, unless there be something repugnant in
the subject or context,---
High Court (The
original clause has been successively amended by Acts 18 of 1919, 32 of 1925, 8
of 1935, A. O., 1937, and A. O., 1949, Sch., to read as above.) [(1) “High
Court” means with reference to any area,---
(a) in (Subs. by A. O., 1961, Art. 2, for “East
Bengal” (with effect from the 23rd march, 1956)) [East Pakistan], the
High Court of (Subs. by A. O., 1961, Art. 2, for “East Bengal” (with
effect from the 23rd march, 1956))[
(Subs. by
the Central Laws (Statute Reform) ordinance, 1960 (21 of 1960), s. 3 and 2nd
Sch. (with effect from the 14th October, 195), for the original sub clause (b)
as amended by the Federal Laws (Revision and Declaration) Act, 1951 (26 of
1951), s. 8) [(b) in
(The
original sub clause (c) omitted by Ord. 21 of 1960, s. 3 and 2ndl Sch. (with
effect from the 14th October, 1955).)
(d) in any Acceding State or non-Acceding State, that
Court of those mentioned above which the Central Government may from time to
time appoint in this behalf by notification in the official Gazette, and until
such appointment that which immediately before the 15th day of August, 1947,
was exercising criminal jurisdiction in respect of European British subjects in
that State.
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.]
(Subs. by
A.O., 1937, for the original clause as amended by Acts 11 of 1923, 32 of 1925
and 34 of 1926) District Judge [(2) “District Judge” means,---
(a) in a Province, a judge of a Principal Civil Court
of original jurisdiction, however designated; and
(b) in any area in an (Subs. by Act 26 of 1951,
s. 4 and III Sch., for “Indian State”.)[Acceding State] such officer as
the Central Government shall from time to time appoint in this behalf by
notification in the official Gazette, and, in the absence of such an officer,
the High Court for the area :]
(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 whose jurisdiction 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 marriage by 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 (Subs. by A.O., 1961,
Art. 2 and Sch., dor “the dominions of Her Majesty” (with effect from the 3rd
March, 1956).)[
(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 administrator
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 administrator.
II. JURISDICTION
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.
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 (Subs. by A.
O., 1961, Art. 22 and Sch., for “the said High Courts, respectively,” (with
effect from the 23rd March, 1956).)[the High Court] 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.
7. Court to act on principles of
(Ins. by the
Indian Divorce (Amendment) Act, 1912 (10 of 1912), s. 2) [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.]
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.
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. 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 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 mehsa et toro,
or of adultery coupled with desertion, without
reasonable excuse, for two years or upwards.
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 correspondent Upon any such petition presented by a husband, the
petitioner shall make the alleged adulterer a correspondent 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. 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 inquire
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.
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. 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 16 and 17 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 willfully separated himself
or herself from the other party before the adultery complained of, and without
reasonable excuse,
or of such willful neglect or misconduct of or towards
the other party as has conduced to the adultery.
Condemnation. No
adultery shall be deemed to have been condoned within the meaning of this Act
unless where conjugal co‑habitation 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 without
reasonable 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. 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 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 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. 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 think further enquiry or
additional evidence to be necessary, may direct such enquiry to be made or such
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 8,
and the High Court shall thereupon, if it think 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.
17A. Appointment of officer to exercise duties of King’s
Proctor.‑( Subs. by A.
O., 1937, for original section 17A as ins. by s. 2 of the Indian Divorce
(Amendment) Act, 1927 (15 of 1927).)[The Provincial Government (The
original words “of any Province within which any High Court established by
Letters Patent exercises jurisdiction,” omitted by the Central Laws (Statute
Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the
14th October, 1955).) may appoint an officer who shall, within the
jurisdiction of the High Court in that Province, 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.
In relation to the jurisdiction of any such High Court
as aforesaid in an (Subs. by the Federal Laws (Revision and Declaration)
Act, 1951 (26 of 1951), s. 4 and III Sch., for “ Indian State”) [
IV. NULLITY OF MARRIAGE
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. Such 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;
(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. Every decree of nullity of marriage made by a
District Judge shall be subject to confirmation by the High Court, and the
Judge provisions of section 17, clauses 1, 2, 3 and 4, shall, mutatis decree
mutandis, apply to such decrees.
21. Children of annulled marriage. Where a marriage is annulled on the ground that a
former Child’ husband or wife was living, and it is adjudged that the
subsequent annul 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.
V. JUDICIAL SEPARATION
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 for at toro, but the husband or wife may obtain a decree of judicial
separation, on the ground of adultery, or cruelty, or desertion but: without
reasonable excuse 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 or the High Court; and the Court, by 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, to case she
dies intestate, go as the same would have gone if her husband bad 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 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.
REVERSAL OF DECREE OF SEPARATION
26. Decrees 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. Any wife to whom section 4 of the Indian Succession
Act, 1865 (See now the Succession Act, 1925 (39 of 1925).), does
not apply, may, when deserted by her husband, present 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. 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 think 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 slut 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.
VII. 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, 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.
VIII. DAMAGES AND COSTS
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 t; with the wife of such
petitioner.
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. Whenever in any petition presented by a husband, the
alleged adulterer has been made a co-respondent, and the adultery has been
established, the Court may order the co-respondent to pay the whole or any part
of the cost of the proceedings.
Provided that the correspondent shall not be ordered
to pay the petitioner’s cost,---
(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 correspondent had not, at the time of the
adultery, reason to believe the respondent to be a married woman.
Power to order litigious intervener 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 pendent light. 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, 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 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. 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 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.
X. SETTLEMENTS
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 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 covertures’ at the time of the execution
thereof.
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. 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 teen 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 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.
XI. CUSTODY OF 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 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. 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. 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. 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 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. Subject to the provisions herein contained, all
proceedings under this Act between party and party shall be regulated by the
Code of Civil Procedure (See now the 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.
47. Stamp on petition. 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 (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,” and the words “ in the first, second,
and third cases mentioned in this section, rep. by the Court fees Act, 1870 (7
of 1870). For court fee, see now Art. 7 of Sch. II to that Act) shall (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,” and the words “
in the first, second, and third cases mentioned in this section, rep. by the
Court fees Act, 1870 (7 of 1870). For court fee, see now Art. 7 of Sch. II to
that Act) 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.
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 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 (The words “shall bear a stamp
of eight annas and “ rep by the Court-fees Act, 1870 (7 of 1870). For court
fee, see now Art. 7 of Sch. II to that Act) 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 (Subs. by the
Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch.
(with effect from the 14th October, 1955), for “the Provinces and the Capital
of the Federation “ which was subs. for “British India “ by A. O., 1949, Arts.
3(2) and 4.) [
Provided that the Court may dispense with such service altogether in case it
seems necessary or expedient so to do.
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
part, 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 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 on desertion.
53. Power to close doors. The whole or any part of ply 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 flay require further evidence thereon if it
sees fit so to do.( For court‑fee of memorandum of appeal, see now
Art. 7 of Sch. II to the Court Fees Act, 1870 (7 of 180).)
55. Enforcement of and appeals 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:---
Provided that there shall be no appeal from a decree
of a 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 appeals as to costs. Provided also that there shall be no appeal on the
subject of costs only.
56 Appeal to Queen in Council. Any person may appeal to (Subs by A O , 1961,
Art 2 & Sch., for “Her Majesty in Council” (with effect from the 23rd
March, 1956).)[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 nisa) 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 (Subs by A O , 1961, Art 2 &
Sch., for “Her Majesty in Council” (with effect from the 23rd March, 1956).)
[the Supreme Court],
57.
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 (Subs. by A. O.,
1961, Art. 2 and Sch. for “Her Majesty in Council”, (with effect from the 23rd
March, 1956).)[the Supreme Court] has been ‑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.
XIII. RE‑MARRIAGE
58. English clergyman not compelled to solemnize
marriages of persons divorced for adultery. No clergyman in Holy Orders of the (The word “United “ rep. by
the Repealing Act, 1873 (12 of 1873).) Church of England (The
words “and
59. English minister refusing to perform ceremony to
permit use of his church. When any
minister of any church or chapel of the said (The word “United “ rep. by
the Repealing Act, 1873 (12 of 1873)) 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. 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 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. 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 Code of Civil Procedure
(See now the Code of Civil Procedure, 1908 (Act 5 of 1908).).
All such rules, alterations and additions shall be
published in the (Subs. by A. O., 1937, for “local official Gazette”.)
[Official Gazette]
THE MARRIAGES VALIDATION ACT, 1892
ACT No. II of 1892
(Short title
given by the Short Titles Act, 1897 (14 of 1897)
For Statement of Objects and Reasons, see Gazette of
India, 1891, Pt. V, p. 142; for Report of the Select Committee, see ibid.,
1892, Pt. V, p. 5 and for Proceeding, ill Council, see ibid., 1891, Pt. VI, p.
117. and ibid. 1892, Pt. VI, p. 11.
This Act has been declared to be in force in
It has also been extended to the Leased Areas of
Baluchistan, see the Leased Areas (Laws) Order, 1950 (G.G.O. 3 of 1953); and
applied in the Federated Areas of Baluchistan, see Gazette of India, 1937, Pt.
I, p. 1499.
This Act has been and shall be deemed to have been
extended to the whole of
[29th January, 1892]
An Act to validate certain marriages solemnized under
Part VI of the Christian Marriage Act, 1872.
WHEREAS provision is made in Part VI of the Christian
Marriage Act, 1872, for the solemnization of marriages between persons of whom
both are Native Christians, but not of marriages between persons of whom one
only is a Native Christian XV of 1872;
And whereas persons licensed under section 9 of the
said Act have in divers parts of (Subs. by Ord. 21 of 1960, s. 3 and 2nd
Sch. (with effect from the 14th October, 1955), for “the Provinces and the
Capital of the Federation” which had been subs. by A. O., 1949, Arts. 3(2) and
4, for “British India”.)[Pakistan] through ignorance of the law,
permitted marriages to be solemnized in their presence under the said Part
between persons of whom one is a Native Christian and the other is not a Native
Christian;
And whereas it is expedient that such marriages,
having been solemnized in good faith, should be validated;
1.
[Commencement] Rep by the Repealing and Amending Act, 1914 (10 of 1914)
2 Definition
In this Act the expression “Native Christian” has the same meaning as in the
Christian Marriage Act, 1872, XV of 1872.
3. Validation of irregular marriages. All marriages which have already been solemnized
under Part VI of the Christian Marriage Act, 1872, between persons of whom one
only was a Native Christian, shall be as good and valid in law as if such
marriages had been solemnized between persons of whom both were Native
Christians XV of 1872:---
Provided that nothing in this section shall apply to
any marriage which had been judicially declared to be null and void, or to any
case where either of the parties has, since the solemnization of such marriage
and prior to the commencement of this Act, contracted a valid marriage.
4. Validation of records of irregular marriages. Certificates of marriages which are declared by the
last foregoing section to be good and valid in law, and register-books, and
certified copies of true and duly authenticated extracts there from, deposited
in compliance with the law for the time being in force, in so far as the
register-books and extracts relate to such marriages as aforesaid, shall be
received as evidence of such marriages as if such marriages had been solemnized
between persons of whom both were Native Christians.
5. Application of Act to marriages under Act V of
1865. References in this Act to the
Christian Marriage Act, 1872, shall, so far as may be requisite, be construed
as applying also to the corresponding portions of the (Rep. (except as
to Straits Settlements) by the Christian Marriage Act, 1872 (15 of 1872).)Indian
Marriage Act, 1865, XV of 1872 V of 1865
6 Penalty for solemnizing
irregular marriages If any person
licensed under section 9 of the said Act to grant certificates of marriage
between Native Christians shall at any time after the commencement of this Act
solemnize or affect to solemnize any marriage under Part VI of the said Act or
grant any such certificate as therein mentioned, knowing that one of the
parties to such marriage or affected marriage was at the date of such
solemnization not a Christian, he shall be liable to have his license
cancelled, and in addition thereto he shall be deemed to have been guilty of an
offence prohibited by section 73 of the said Act, and shall be punishable accordingly.
The Divorce Act, 1869
1ACT
No. IV OF 1869
[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 :-
I.-PRELIMINARY
1. Short title. Commencement of Act. This Act may be called the 3* Divorce Act, and shall come into operation on the first day of April, 1869.
2. Extent of Act. 4[This
Act extends to the whole of
1For 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.
The Act extends to
Provision was made by the Indian
Divorces (Validity) Act (11 & 12 Geo., 5, ch. 18) with respect to the
validity of certain decrees granted in
The
Limitation Act does not apply to suits under this Act, see the Limitation
Act, 1908 (9 of 1908), s. 29 (2).
It has been
declared to be in force in
It has been applied to Phulera in the
Excluded Area of Upper Tanawal to the extent the Act is applicable in the
N.W.F.P., subject to certain modifications, and extended to the Excluded Area
of Upper Tanawal (N.W.F.P.) other than Phulera with effect from such date and
subject to such modifications as may be notified, see N.W.F.P. (Upper
Tanawal) (Excluded Area) Laws Regulation, 1950.
It has also been extended to the
Leased Areas of Baluchistan, see the Leased Areas (Laws) Order, 1950
(G.G.O. 3 of 1950) ; and applied in the Federated Areas of Baluchistan, see Gazette
of India, 1937, Pt. I, p. 1499.
2The words “in
3The word “Indian” omitted, ibid.
4The original paragraph has
successively been amended by A. O., 1949, and the Central Laws (Statute Reform)
Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th
October, 1955), to read as above.
Extent of power
to grant relief generally, and to make decrease of dissolution, or of nullity. 1[Nothing hereinafter contained shall
authorise any Court to grant any relief under this Act except where the
petitioner 2[or respondent] professes the Christian religion,
or to make decrees of dissolution of marriage except where the parties to
the marriage are domiciled in 3[
4[or to make decrees of nullity of marriage
except where the marriage if solemnized before the 15th day of August, 1947,
has been solemnized in India and if solemnized on or after that date has been
solemnized in Pakistan and the petitioner is resident in Pakistan 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 3[
3. Interpretation-clause. In this Act, unless there be something repugnant in the subject or context,-
“High Court.” 5[ 6* * * * * * *
(2) “Court of Civil Judge”. “Court of Civil Judge” means, in the case of any petition under this Act, the Court of the Civil Judge within the local limits of whose ordinary jurisdiction the husband and wife resided or last reside together;
(3) “Court”. “Court” means the High Court, the District Court or the Court of Civil Judge, as the case may be;]
(5) “Minor children”. “minor children” means, in the case of sons of 7[Pakistani] fathers, boys who have not completed the age of sixteen years, and, in the case of daughters of 7[Pakistani] 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:
1Subs. by the Divorce (Amendment) Act, 1926 (25 of 1926), for the original
paragraph.
2Ins. by the Divorce (Second Amendment) Act, 1927 (30 of 1927), s. 2.
3Subs. by A.O., 1949, Sch., for “
4Subs. by
the Divorce (Amendment) Act, 1950 (57 of
1950), s. 2, for the original sub-paragraph.
5The original clauses (1), (2), (3),
and (4), successively amended by Acts 18 of 1919, 32 of 1925, 8 of 1935, A. O. 1937, A. O. 1949, Sch. Act 26 of 1951 Ord. 21 of 1960, and A. O.
1961 have been subs. by the Divorce (Amendment) Act, 1975 (4 of 1976), s.
2, to read as above.
6Clause (1) omitted by the Federal Laws
(Revision and Declaration) Ordinance, 1981 (27 of 1981), s. 3 and IInd Sch.
7Subs. by the Divorce (Amdt.) Act, 1975
(4 of 1976), s. 2, for “Native”.
(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 marriage by 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 l[
(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.] Omitted by the Divorce (Amdt.) Act, 1975 (IV of I976), s. 3.
5. [Enforcement of decrees or orders made heretofore by Supreme or High Court.] Omitted by the Divorce (Amdt.) Act, 1975 (IV of 1976) s. 4.
6. [Pending suits.] Omitted by the Divorce (Amdt.) Act, 1975 (IV of 1976), s. 4.
7.
[Court to act on principles of
8. [Extraordinary Jurisdiction of High Court.] Omitted by the Divorce (Amdt.) Act, 1975 (IV of 1976), s. 6.
9. [Reference
to High Court.] Omitted by the Divorce (Amdt.) Act, 1975 (IV of 1976), s.7.
1Subs. by A.O., 1961, Art. 2 and Sch., for “the
Dominions of Her Majesty”, (w.e.f. 23-3-56).
III.- DISSOLUTION OF MARRIAGE
10. When husband may petition for dissolution. Any husband may present a petition to the 1[Court of Civil Judge] praying that his marriage may be dissolved on the ground that this wife has, since the solemnization thereof, been guilty of adultery.
When wife may petition for dissolution. Any wife may present a petition to the 1[Court of Civil Judge] 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.
or of adultery coupled with
desertion, without reasonable excuse, for two years or upwards.
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. 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. 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 inquire into any countercharge which may be
made against the petitioner.
_______________________________________________________________________
1Subs. by the Divorce (Amdt.) Act, 1975 (4 of 1976), s.
8.
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.
1* * * * * *
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 2* * *
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.
lOmitted by the Divorce (Amdt.) Act, 1975 (4 of 1976),
s. 9.
2Omitted ibid., s.10.
Condonation. No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal co-habitation 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 without reasonable 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.] Omitted by the Divorce (Amdt.) Act, 1975 (IV of 1976), s. 11.
17. [Confirmation of decree for dissolution by District Judge.] Omitted by the Divorce (Amdt.) Act 1975 (IV of 1976), s. 11.
17A. [Appointment of officer to exercise duties of King’s Proctor.] Omitted by the Divorce (Amdt.) Act. 1975 (IV of 1976), s. 11.
IV.–– NULLITY
OF MARRIAGE
18. Petition for decree of nullity. Any husband or wife may present a petition to the l[Court of Civil Judge], praying that his or her marriage may be declared null and void.
19. Grounds of decrees. Such 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;
(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 idoit 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 2[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.] Omitted by the Divorce (Amdt.) Act, 1975. (IV of 1976), s. 14.
1Subs. by the Divorce (Amdt.) Act, 1975 (4 of 1976), s.
12, for “District Court or to the High Court”.
2Subs. Ibid., s.
13, for “High Court”.
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.
_________
V.- JUDICIAL SEPARATION
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 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 1[Court of Civil Judge] 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.
1Subs. by the Divorce (Amdt.) Act, 1975 (4 of 1976), s.
15., for “District Court or the High
Court”.
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.
REVERSAL OF DECREE OF SEPARATION
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 bas 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. Any wife to whom section 4 of the Indian Succession Act, 18651 (X of 1865), does not apply, may, when deserted by her husband, present a petition to the 2[Court of Civil Judge] 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.
1See now the Succession Act, 1925 (39 of 1925).
2Subs. by the Divorce (Amdt.) Act, 1975 (4 of 1976), s.
15, for “District Court or the High Court”.
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 think 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.
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. 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 l[Court of Civil Judge], 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.
________
VIII._ DAMAGES AND
COSTS
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 l[Court of Civil Judge] limited to such object only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner.
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 recoverd 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.
_______________________________________________________________________
lSubs. by the Divorce (Amdt.) Act, 1975
(4 of 1976), s. 15 for “District Court or the High Court” .
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 has been established, the Court may order the co-respondent to pay the whole or any part of the cost of the proceedings:
Provided that the co-respondent shall not be ordered to pay the petitioner’s cost––
(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.
1* * * * * * *
_______
IX.- ALIMONY
36. Alimony pen dente 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, 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 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.2* * * * * * *
3[The Court may, if it thinks fit, on any
decree 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.
1Omitted by the Divorce (Amdt) Act, 1975 (4 of 1976), s.
16.
2Omitted ibid., s. 17(a).
3Subs. ibid., s. 17 (b), for “order”.
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.
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X.- SETTLEMENTS
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 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 at the time of the execution thereof.
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 postnuptial
settlements.
1* * * * * * *
2[The Court, after making a decree for dissolution of marriage or a decree of nullity of marriage, 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 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 benfit of the parents or either of them at the expense of the children.
1Omitted by the Divorce (Amdt.) Act, 1975 (4 of 1976),
s. 18 (a).
2Subs. ibid., s. 18 (b) for “may”.
XI.__ CUSTODY OF CHILDREN
41. Power to make orders as to custody of
children in suit for seperation. 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 far placing such children under the
protection of the said Court.
42. Power to make such orders after decree. The Court, after a decree of judicial separation, may upon application (by petition) far this purpose make, from time to time, all such orders and provision with respect to 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 far obtaining such decree were still pending.
1[43. Power to make orders as to
custody of children in suits for dissolution or nullity. In any suit far
obtaining a dissolution of marriage or a decree of nullity of marriage, 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 the suit; and may, if it thinks
fit, direct proceedings to be taken far placing such children under the
protection of the Court.]
44. Power to make such orders after decree. l[The Court, after a decree far dissolution of marriage or a decree of nullity of marriage, may, upon application by petition far the purpose, make from time to time all such orders and provision, with respect to the custody, maintenance and education of the miner children, the marriage of whose parents was the subject of the decree, or far placing such children under the protection of the Court, as might have been made by such decree or by such interim orders as aforesaid.].
___________
XII.– PROCEDURE
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 Code of Civil Procedure2.
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.
1Subs. by the Divorce (Amdt.) Act, 1975 (4 of 1976),
ss.19-20.
2See now the Code of Civil Procedure, 1908 (5 of 1908).
47. Stamp on petition. 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 1* * * shall 1* * * 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.
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 2* * * 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 3[
Provided that the Court may dispense with such service altogether in case it seems necessary or expedient so to do.
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
________________________________________________________________________
1The words “or of reversal of judicial separation, or for restitution of conjugal rights, or for
damages, shall bear a stamp of five rupees, and,” and the words “in the first,
second, and third cases mentioned in this section,” rep. by the Court-Fee Act,
1870 (7 of 1870). For court-fee, see now Art. 7 of Sch. II to that Act.
2The words “shall bear a stamp of eight
annas and” rep. ibid.
3Subs. by the Central Laws (Statute
Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect
from the 14th October, 1955), for “the Provinces and the Capital of
the Federation” which was subs. for “
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 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. The whole or any part of any proceeding under this 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.
55. Enforcement of and appeal form 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 appealed1 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:
2* * * * * * *
No appeals as to costs. Provided 2* that there shall be no appeal on the subject of costs only.
56. [Appeal to Supreme Court.] Omitted by the Divorce (Amdt.) Act, 1975 (IV of 1976), s. 22.
_________
XIII.– RE-MARRIAGE
3[57.
1For
court-fee of memorandum of appeal, see now Art. 7 of Sch. II to the
Court Fees Act, 1870 (7 of 1870).
2Proviso
and the word "also" omitted by the Divorce (Amdt.) Act, 1975 (4 of
1976), s.21.
3 Subs. ibid., s. 23.
58. English clergyman not compelled to solemnize marriages of person divorced for adultery. No clergyman in Holy Orders of the 1* Church of England 2* * 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 1* 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. 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 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. 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.
1The word “United” rep. by the Repealing Act, 1873 (12
of 1873).
2The words “and
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 Procedure1.
All such rules, alterations and additions shall be published in the 2[official Gazette].
_________
SCHEDULE OF FORMS
No. 1._ PETITION BY HUSBAND FOR A DISSOLUTION OF
MARRIAGE WITH DAMAGES AGAINST CO-RESPONDENT, BY REASON OF ADULTERY.
(See sections 10 and 34)
In the3 *Court of
4* * * * * *
The day of 186. The petition of A.B., of
SHEWETH,
1. That your petitioner was on the day of , one thousand eight hundred and , lawfully 5married to C.B., then C. D., spinster, at
2. That from his said marriage, your petitioner lived and cohabited with his said wife at and at ,in , and lastly at in ,,and that your petitioner and his said wife have had issue of their said marriage, five children, of whom two sons only survive, aged respectively twelve and fourteen years.
3. That during the three years
immediately preceding the
day of one thousand eight hundred and, X. Y. was constantly, with few
exceptions, residing in the house of your petitioner at aforesaid, and that on divers
occasions during the said period, the dates of which are unknown to your petitioner,
the said C.B. in your petitioner's said house committed adultery with
the said X. Y.
1See now the Code of Civil Procedure, 1908 (Act 5 of 1908).
2Subs. by A. O., 1937, for “local official Gazette”.
3The word “(High)” omitted by the Divorce (Amdt.) Act,
1975 (4 of 1976), s.24.
4The words “To the Hon'ble Mr. Justice [or to the Judge
of-]” omitted ibid. .
5If the marriage was solemnized out of
4. That no collusion or connivance exists between me and my said wife for the purpose of obtaining a dissolution of our said marriage or for any other purpose.
Your petitioner, therefore, prays that this 1* Court will decree a dissolution of the said marriage, and that the said X. Y. do pay the sum of rupees 5,000 as damages by reason of his having committed adultery with your petitioner's said wife, such damages to be paid to your petitioner, or otherwise paid or applied as to this 1* Court seems fit.
(Signed) A.B.2
Form of Verification
I, A.B., the petitioner name in the above petition, do declare that what is stated therein is true to the best of my information and belief.
________
No. 2.–RESPONDENT'S STATEMENT IN ANSWER TO No.1.
In the Court of the day of
Between A.B., petitioner,
C.B., respondent, and
X.Y., co-respondent.
C. B., the respondent, by D.E., her attorney [or vakil], in answer to the petition of A.B., says that she denies that she has on divers or any occasions committed adultery with X. Y., as alleged in the third paragraph of the said petition.
Wherefore the respondent prays that this 1* Court will reject the said petition.
(Signed)
C.B.
__________
No. 3.–CO-RESPONDENT'S STATEMENT IN ANSWER TO No.1
In the 3* Court of
The day of
Between A.B., petitioner,
C.B., respondent, and
X. Y., co-respondent.
1The word “(Hon'ble)” omitted by the
Divorce (Amdt.) Act, 1975 (4 of 1976), s. 24.
2The petition must be signed by the petitioner.
3See foot note 3, on page 277, supra.
X. Y., the co-respondent, in answer to the petition filed in this cause, saith that he denies that he committed adultery with the said C. B., as alleged in the said petition.
Wherefore the said X. Y., prays that this 1*Court will reject the prayer of the said petitioner and order him to pay the costs of and incident to the said petition.
(Signed)
X.Y.
___________
No. 4.-PETITION FOR DECREE OF NULLITY OF MARRIAGE
(See section 18)
In the 2* Court of
3* * * * * * *
The day of , 186.
The petition of A.B., falsely called A.D.,
SHEWETH,
1. That on the , day of ,
one thousand eight hundred and your
petitioner, then a spinster, eighteen years of age, was married in fact. though
not in law, to C.D., then a bachelor of about thirty years of age, at [some
place in 4[
2. That from the said day of , one thousand eight hundred and , until the month of , one thousand eight hundred and your petitioner lived and cohabited with the said C.D., at divers places, and particularly at aforesaid.
3. That the said C. D., has never consummated the said pretended marriage by carnal copulation.
4. That at the time of the celebration of your petitioner's said pretended marriage, the said C.D. was, by reason of his impotency or malformation, legally incompetent to enter into the contract of marriage.
5. That there is no collusion or connivance between her and the said C.D. with respect to the subject of this suit.
Your petitioner therefore prays that this 1* Court will declare that the said marriage is null and void.
(Signed) A.B.
1The word “(Hon'ble)” omitted by the
Divorce (Amdt.) Act, 1975 (4 of 1976), s. 24.
2The word “(High)” omitted by the Divorce (Amdt.) Act,
1975 (4 of 1976), s.24.
3The words “To the Hon'ble Mr. Justice [or to the Judge
of-]” omitted ibid.
4Subs. by the Central Laws (Statute Reform) Ordinance,
1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955),
for “
No. 5.-PETITION BY WIFE FOR JUDICIAL SEPARATION ON THE GROUND OF HER HUSBAND'S ADULTERY.
(See section 22)
In the 1* Court of
2* * * * * * * *
The day of 186.
The petition of C.B., of , the wife of A.B.
SHEWETH,
That on the day of , one thousand eight hundred and sixty , your petitioner, then C.D., was lawfully married to A.B., at the Church of , in the
2. That after her said marriage your petitioner cohabited
with the said A.B. at and at , and that your
petitioner and her said husband have issue living of their said marriage, three
children, to wit, etc., etc.3
3. That on divers occasions in or about the months of August, September and October, one thousand eight hundred and sixty, ,the said A. B., at aforesaid,committed adultery with E.F., who was then living in the service of the said A. B. and your petitioner at their said residence aforesaid.
4. That on divers occasions in the months of October, November and December, one thousand eight hundred and sixty ,the said A. B., at aforesaid, committed adultery with G. H., who was then living in the service of the said A. B. and your petitioner at their said residence aforesaid.
5. That no collusion or connivance exists between your petitioner and the said A. B. with respect to the subject of the present suit.
Your petitioner therefore prays that this 4* Court will decree a judicial separation to your petitioner from her said husband by reason of his aforesaid adultery.
(Signed) C.
B.5
________________________________________________________________________
1The word “(High)” omitted by the
Divorce (Amdt.) Act, 1975 (4 of 1976), s.24.
2The words “To the Hon'ble Mr. Justice [or to the Judge
of-]” omitted ibid.
3State the respective ages of the children.
4The word “(Hon’ble)” omitted by the Divorce (Amdt.)
Act, 1975 (4 of 1976),s.24.
5The petition must be signed by the petitioner.
No. 6.–STATEMENT IN ANSWER TO No.5
In the 1* Court of
B.
against B.
The day of .
The respondent, A.B., by W. Y., his attorney [or vakil], saith,–
1. That he denies that he committed adultery with E.F., as in the third paragraph of the petition alleged.
2. That the petitioner condoned the said adultery with E.F., if any.
3. That he denies that he committed adultery with G.H., as in the fourth paragraph of the petition alleged.
4. That the petitioner condoned the said adultery with G. H., if any.
Wherefore this respondent prays that this 2* Court, will reject the prayer of the said petition.
(Signed) A.B.
____________
No.7.-STATEMENT
IN REPLY TO No.6.
In the 1* Court of
B. against B.
The day of
The petitioner, C. B., by her attorney [or vakil],
says,___
1. That she denies that she condoned the said adultery, of the respondent with E. F., as in the second paragraph of the statement in answer alleged.
2. That even if she had condoned the said adultery the same has been revived by the subsequent adultery of the respondent with G. H., as set forth in the fourth paragraph of the petition.
(Signed) C.B.
________________________________________________________________________
1The word “(High)”
omitted by the Divorce (Amdt.) Act, 1975 (4 of 1976), s.24.
2The word (“Hon’ble”) omitted by the Divorce (Amdt.)Act,
1975 (4 of 1976),s.24.
No. 8.- PETTION FOR A JUDICIAL SEPARATION BY REASON OF
CRUELTY
(See section 22)
In the 1* Court of
2* * * * * * * *
The day of , 186 .
The petition of A. B. (wife of C. B.) of
SHEWETH,
1. That on the day of , one thousand eight hundred and , your petitioner, then A. D., spinster, was lawfully married to C. B., at
2. That from her said marriage, your petitioner lived and cohabited with her said husband at until the day of , one thousand eight hundred and , when your petitioner separated from her said husband as hereinafter more particularly mentioned, and that your petitioner and her said husband have had no issue of their said marriage.
3. That from and shortly after your petitioner's said marriage, the said C. B., habitually conducted himself towards your petitioner with great harshness and cruelty, frequently abusing her in the coarsest and most insulting language, and beating her with his fists, with a cane, or with some other weapon.
4. That on an evening in or about the month of one thousand eight hundred and, the said C. B., in the highway and opposite to the house in which your petitioner and the said C. B. were then residing at aforesaid, endeavoured to knock your petitioner down, and was only prevented from so doing by the interference of F. D., your petitioner's brother.
5. That subsequently on the same evening, the said C. B., in his said house at aforesaid, struck your petitioner with his clenched fist a violent blow on her face.
6. That on one Friday night in the month of ,one thousand eight hundred and ,the said C. B., in , without provocation, threw a knife at your petitioner, thereby inflicting a severe wound on her right hand.
7. That on the afternoon of the day of , one thousand eight hundred and , your petitioner, by reason of the great and continued cruelty practised towards her by her said husband, with assistance withdrew from the house of her said husband to the house of her father at , that from and after the said day of one thousand eight hundred and , your petitioner hath lived separate and apart from her said husband and hath never returned to his house or to cohabitation with him.
1The word “(High)” omitted by the
Divorce (Amdt.) Act, 1975 (4 of 1976), s.24.
2The words “To the Hon'ble Mr. Justice [or to the Judge
of-]” omitted ibid.
8. That there is no collusion or connivance between your petitioner
and her said husband with respect to the subject of the present suit.
Your petitioner, therefore, prays that this 1* Court will decree a judicial separation between your petitioner and the said C. B., and also order that the said C.B. do pay the costs of and incident to these proceedings.
(Signed) A. B.
_______
Form of verification : see No. 1
______
No. 9.-STATEMENT IN ANSWER TO No.8
In the 2* Court of
The day of.
Between A. B., petitioner, and C. B., respondent.
C.B., the respondent, in answer to the petition filed in this cause, by W. J., his attorney [or vakil], saith that he denies that he has been guilty of cruelty towards the said A. B.. as alleged in the said petition.
(Signed) C.B.
_______
No. I0.-PETTION FOR REVERSAL OF DECREE OF SEPARATION
(See section 24)
In the 2* Court of
3* * * * * * *
The day of , 186 .
The petition of A. B., of
SHEWETH,
1. That your petitioner was on the day of lawfully married to .
2. That on the day of , this 1* Court, at the petition of , pronounced a decree affecting the petitioner to the effect following, to wit,–
[Here
set out the decree.]
3. That such decree was obtained in the absence of your petitioner, who was then residing at .
[State
facts tending to show that the petitioner did not know of the proceedings; and,
further, that had he known he might have offered a sufficient defence].
1The word (“Hon’ble”) omitted by the Divorce (Amdt.)Act,
1975 (4 of 1976),s.24.
2The word “(High)” omitted by the Divorce (Amdt.) Act, 1975 (4
of 1976), s.24.
3The words “To the Hon'ble Mr. Justice [or to the Judge
of-]” omitted ibid.
or
That there was reasonable ground for your petitioner leaving his said wife, for that his said wife.
[Here state any legal
grounds justifying the petitioner's separation from his wife.]
Your petitioner, therefore, prays that this 1* Court will reverse the said decree.
(Signed) A.B.
______
Form
of Verification:see No. 1
_____
No. 11.-PETTTION FOR PROTECTION-ORDER
(See section 27)
In the 2* Court of
3* * * * * * *
The day of , 186 .
The petition of C. B., of .
The
wife of A. B.
SHEWETH,
That on the day of she was lawfully married to A. B. at .
That she lived and cohabited with the said A. B. for years at , and also at , and had had children, issue of her said marriage, of whom are now living with the applicant, and wholly dependent upon her earnings.
That on or about , the said A. B., without any reasonable cause, deserted the applicant, and hath ever since remained separate and apart from her.
That since the desertion of her said husband, the applicant hath maintained herself by her own industry [or on her own property, as the case may be], and hath thereby and otherwise acquired certain property consisting of [here state generally the nature of the property].
Wherefore she prays an order for the protection of her earnings and property acquired since the said day of , from the said A. B., and from all creditors and persons claiming under him.
(Signed) C.B.
________________________________________________________________________
1The word (“Hon’ble”) omitted by the Divorce (Amdt.)Act,
1975 (4 of 1976),s.24.
2The word “(High)” omitted by the
Divorce (Amdt.) Act, 1975 (4 of 1976), s.24.
3The words “To the Hon'ble Mr. Justice [or to the Judge
of-]” omitted ibid.
No. 12.-PETITION FOR ALIMONY PENDING THE SUIT
(See section 36)
In the 1* Court of
B. against B.
2* * * * * * *
The day of , 186.
The petition of C. B., the lawful wife of A. B.
SHEWETH,
1. That the said A. B. has for some years carried on the business of , at , and from such business derives the net annual income of from Rs. 4,000 to 5,000.
2. That the said A. B. is possessed of plate, furniture, linen and other effects at his said house aforesaid, all of which he acquired in right of your petitioner as his wife, or purchased with money he acquired through her, of the value of Rs. 10,000.
3. That the
said A. B. is entitled, under the will of his father, subject to the
life interest of his mother therein, to property of the value of Rs. 5,000 or
some other considerable amount.3
Your petitioner, therefore, prays that this 4* Court will decree such sum or sums of money by way of alimony, pending the suit, as to this 4* Court may seem meet.
(Signed) C.B.
_______
Form of
Verification:see No. 1
__________
No. 13.-STATEMENT IN ANSWER TO No. 12
In the 1* Court of
B.
against B.
A. B., of
, the above named respondent, in answer to the petition for alimony, Pending
the suit of C. B., says___
1. In answer to the first paragraph of the said petition, I say that I have for the last three years carried on the business of , at , and that, from such business, I have derived a net annual income of Rs. 900, but less than Rs. 1,000.
2. In answer to the second paragraph of the said petition, I say that I am possessed of plate, furniture, linen and other chattels and effects at my said house aforesaid, of the value of Rs. 7,000, but as I verily believe of no larger value, and I say that a portion of the said plate, furniture and other chattels and effects of the value of Rs. 1,500, belonged to my said wife before our marriage, but the remaining portions thereof I have since purchased with my own moneys. And I say that, save as hereinbefore set forth, I am not possessed of the plate and other effects as alleged in the said paragraph in the said petition, and that l did not acquire the same as in the said petition also mentioned.
_____________________________________________________________________1The word “(High)” omitted by the Divorce (Amdt.) Act,
1975 (4 of 1976), s.24.
2The words “To the Hon'ble Mr. Justice [or to the Judge
of-]” omitted ibid.
3The petitioner should state her husband’s income as
accurately as possible.
4The word (“Hon’ble”) omitted by the
Divorce (Amdt.)Act, 1975 (4 of 1976),s.24.
3. I admit that I am entitled under the will of my father, subject to the life-interest of my mother therein, to property of the value of Rs.5,000, that is to say, I shall be entitled under my said father's will, upon the death of my mother, to a legacy of Rs.7,000, out of which I shall have to pay to my father's executors the sum of Rs.2,000, the amount of a debt owing by me to his estate, and upon which debt I am now paying interest at the rate of five per cent. per annum.
4. And, in further answer to the said petition, I say that I have no income whatever except that derived from my aforesaid business, that such income, since my said wife left me, which she did on the day of last, has been considerably diminished, and that such diminution is likely to continue. And I say that out of my said income, I have to pay the annual sum of Rs.100 for such interest as aforesaid to my late father's executors' and also to support myself and my two eldest children.
5. And, in further answer to the said petition, I say that, when my wife left my dwelling-house on the day of last, she took with her, and has ever since withheld and still withholds from me, plate, watches and other effects in the second paragraph of this my answer mentioned, of the value of, as I verily believe, Rs.800 at the least; and I also say that, within five days of her departure from my house as aforesaid, my said wife received bills due to me from certain lodgers of mine, amounting in the aggregate to Rs. , and that she has ever since withheld and still withholds from me the same sum.
(Signed) A. B.
_______
No. 14.-UNDBRTAKING BY MINOR'S NEXT FRIEND TO BE ANSWBRABLE FOR
RESPONDENT'S COSTS.
(See section 49)
In the 1* Court of
I, the undersigned, A. B., of ,being the next friend of C. D., who is a minor, and who is desirous of filing a petition in this Court, under the Indian Divorce Act, against D. D. of ,
hereby undertake to be responsible for the costs of the said D. D. in such suit, and that, if the said C.D. fail to pay to the said D. D. when and in such manner as the Court shall order all such costs of such suit as the Court shall direct him (or her) to pay to the said D. D., I will forthwith pay the same to the proper officer of this Court.
Dated this day of , 186 .
(Signed) A.
B.,
________________________________________________________________________
1The word “(High)” omitted by the
Divorce (Amdt.) Act, 1975 (4 of 1976), s.24.
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