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Chaitra 07, 1935, at 08:02:23 PM
The Native Converts’ Marriage
Dissolution Act, 1866
ACT NO. XXI OF 1866
(For Statement of Objects and Reasons, see Gazette of India, 1865, p.
59; for the Report of the Select Committee, see ibid., 1866, p.163 and for
discussions on the Bill, see ibid., 1865, Supplement, p. 5, and 1866,
Supplement, p. 201.
This Act has been
declared to be in force in all the Provinces and the Capita 1 of the
Federation, except the Scheduled Districts, by s. 3 of the Laws Local Extent
Act, 1874 (15 of 1874).
It has been declared, by notification under s. 3 (a) of
the Scheduled Districts Act, 1874 (14 of 1874), to be in force in the following
Scheduled Districts, namely:
The Districts of
Hazara, Peshawar, Kohat, Bannu, Dera Ismail Khan and Dera Ghazi Khan [Portions
of the Districts of Hazara, Bannu, Dera Ismail Khan and Dera Ghazi Khan and the
Districts of Peshawar and Kohat now form the N: W. F. P., see Gazette of India,
1901, Pt. 14 p. 857, and ibid., 1902, Pt. 1, p. 575; but its application to
that part of the Hazara District known as Upper Tanawal is barred by the Hazara
(Upper Tanawal) Regulation, 1900 (2 of 1900)], see Gazette of India, 1886, Pt.
1, p. 48.
The district of Sylhet See Gazette
of
[2nd April, 1866]
An Act to legalize, under certain
circumstances, the dissolution of marriages of Native Converts to Christianity
Preamble WHEREAS it is expedient to legalize, under certain
circumstances, the dissolution of marriages of Native Converts to Christianity
deserted or repudiated on religious grounds by their wives or husbands ; It is
enacted as follows:-
1. Short title This Act may be cited as the
Native Converts Marriage Dissolution Act, 1866.
2. [Commencement of
Act.] Repby -the Repealing Act, 1874 (XVI of 1874)
3 Interpretation-clause In this Act-
"Native
husband" "Native
husband" shall mean a married man domicile in (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 had been subs. for "British India" by
A.O., 1949, Arts. 3 (2) and 4.)[
"Native
wife." "Native
wife" shall mean a married woman domiciled in (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 had been subs. for "British India" by
A.O., 1949, Arts. 3 (2) and 4.) [
"Native
law" "Native
law" shall mean any law, or custom having the force of law, of any persons
domiciled in (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 had been
subs. for "British India" by A.O., 1949, Arts. 3 (2) and 4.) [
"Month"
and "Year". "Month" and "year" shall respectively mean month
and year according to the British calendar
(The paragraph relating to number
was rep by the Repealing and Amending Act, 1914 (10 of 1914), and the
definition of High Court by A. O., 1937.)* * * *
4 When convert
deserted by his wife may sue for conjugal society If a Native husband change his
religion for Christianity, and if in consequence of such change his Native
wife, for the space of six continuous months, desert or repudiate him, he may
sue her for conjugal society.
5. When convert
deserted by her husband may sue. If a Native wife change her religion for Christianity,
and if in consequence of such change her Native husband for the space of six
continuous months desert or repudiate her, she may sue him for conjugal
society.
6. Court in which
suit shall be brought. If the respondent, at the time of commencement of such suit, reside
within the local limits of the ordinary original civil jurisdiction of any of
the High Courts of Judicature the suit shall be commenced in such Court;
otherwise it shall be commenced in' the principal Civil Court of original
jurisdiction of the district in which the defendant shall reside at the
commencement of the suit.
7. Suit to be
commenced by verified petition. The suit shall be commenced by a petition in the form in
the first schedule to this Act, or as near thereto as the circumstances of the
case will allow.
The statements made
in the petition shall be verified by the petitioner in the manner required by
law for the verification of plaints; and the petition (The words
"shall bear a stamp of two rupees, and, " were rep. by the Court-fee
Act, 1870 (7 of 1870), Sch. III.)* * * may be amended by permission of
the Court.
8. On service of
petition, citation to respondent. A copy of the petition shall be served upon the
respondent, and the Court shall thereupon issue a citation under the seal of
the Court and signed by the Judge.
9. Form of
citation. In
ordinary cases the citation shall be in the form in the second schedule to this
Act, or as near thereto as the circumstances of the case will allow.
But where the
respondent is exempt by law from personal appearance in Court, or where the
Judge shall so direct, the citation shall be in the form in the third schedule
to this Act, or as near thereto as the circumstances of the case will allow.
10. Service of
citation. A copy
of the citation sealed with the seal of the Court shall be served on the
respondent; and the provisions of the Code of Civil Procedure, as to the
service and endorsement of summonses shall apply, mutatis mutandis, to
citations under this Act.
11. Penalty on
respondent hot obeying citation. If the respondent shall not obey such citation and comply
with every other requirement made upon her or him under the provisions of this
Act, she or he shall be liable to punishment of under section 174 of the
Pakistan Penal Code. XLV of 1860
12. Points to be
proved on appearance of petitioner. On the day fixed in the citation the petitioner shall
appear in Court, and the following points shall be proved,---
(1) the identity of
the parties
(2) the marriage
between the petitioner and the respondent:
(3) that the male
party to the suit has completed the age of sixteen years, and that the female
party to the suit has completed the age of thirteen years:
(4) the desertion or
repudiation of the petitioner by the respondent:
(5) that such
desertion or repudiation was in consequence of the petitioner's change of
religion:
(6) and that such
desertion or repudiation had continued for the six months immediately before
the commencement of the suit.
13. First
interrogation of respondent. The respondent, if such points be proved to the
satisfaction of the Judge, shall thereupon be asked whether she or he refuses
to cohabit with the petitioner, and, if so, what is the ground of such refusal.
In ordinary cases such
interrogation and every other interrogation prescribed by this Act shall be
made by the Judge, but when the respondent is exempt by law from personal
appearance in Court, or when the Judge shall in his discretion excuse the
respondent from such appearance, the interrogation shall be made by
commissioners acting under such commission as hereinafter mentioned.
14. Interrogations
by Judge may be public or private. Every interrogation mentioned in this Act and made by the
Judge may, at the discretion of the Judge, take place in open Court or in his
private room.
If any such
interrogation take place in open Court, the Judge may, so long as it shall
continue, exclude from the Court all such persons as he shall think fit to
exclude.
15. Procedure when
female respondent refuses to cohabit with petitioner. Adjournment for a year
Interview If the
respondent be a female and in answer to the interrogatories of the Judge or
commissioners, as the case may be, shall refuse to cohabit with the petitioner,
the Judge, if upon consideration of the respondent's answers and of the facts
which may have been proved by the petitioner he shall be of opinion that the
ground for such refusal is the petitioner's change of religion, shall make an
order adjourning the case for a year, and directing that, in the interim the
parties shall, at such place and time as he shall deem convenient, have an
interview of such length as the Judge shall direct, and in the presence of such
person or persons (who may be a female or females) as the Judge shall select
with the view of ascertaining whether or not the respondent freely and
voluntarily persists in such refusal.
16. Procedure on
expiration of adjournment. Interrogation of respondent At the expiration of such
adjournment the petitioner shall again appear in Court and shall prove that the
said desertion or repudiation had continued up to the time last hereinbefore
referred to, and if the points mentioned in section 12 and this section of this
Act shall be proved to the satisfaction of the Judge, and if the respondent on
being interrogated by the Judge or commissioners, as the case may be, again
refuse to cohabit with the petitioner, the respondent shall be taken to have
finally deserted or repudiated the petitioner;
Decree. And the Judge shall, by a decree
under his hand and sealed with the seal of his Court, declare that the marriage
between the parties is dissolved.
17. Decree in case
of male respondent refusing to cohabit on grounds of petitioner's change of
religion. If the
respondent be a male and in answer to the interrogatories of the Judge or
commissioners, as the case may be, shall refuse to cohabit with the petitioner
the Judge, if upon consideration of the respondent's answers and of the facts
which may have been proved by the petitioner he shall be of opinion that the
ground for such refusal is the petitioner's change of religion, shall adjourn
the case for a year.
At the expiration of
such adjournment, the petitioner shall again appear in Court; and if the
respondent on being interrogated by the Judge or commissioners, as the case may
be, again refuse to cohabit with the petitioner, the Judge shall thereupon pass
such a decree as last aforesaid:
Proviso. Provided that if the petitioner
shall so desire (but not otherwise), the proceedings in the suit shall, mutatis
mutandis, be the same as in the case of a female respondent.
18. Decree if
respondent so refuse in case of unconsummated marriage, either party being
imputes at time of marriage. Notwithstanding anything hereinbefore contained, if it
shall appear at any stage of the suit that both or either of the parties had
not attained puberty at the date of their marriage, and that such marriage has
not been consummated, and if, in answer to the interrogatories made pursuant to
section 13 of this Act, the respondent shall refuse to cohabit with the
petitioner, and allege, as the ground for such refusal, that the petitioner has
changed his or her religion, the Judge shall thereupon pass such a decree as
last aforesaid.
19.
Provided always that no minister of religion shall be
compelled to solemnize the marriage of any person whose former marriage may
have been dissolved under this Act, or shall be liable to any suit or penalty
for refusing to solemnize the marriage of any such person.
20. Judge to order
commission to issue for examination of exempted persons. In suits instituted under this
Act, the Judge shall order a commission to issue to such persons, whether males
or females; or both, as he shall think fit, for the examination on
interrogatories or otherwise of any persons so exempt as aforesaid.
The provisions of the
Code of Civil Procedure shall, so far a, practicable, apply to commissions
issued under this section.
21. Proof of
marriage and desertion or repudiation of petitioner in consequence of
conversion. At
any stage of a suit instituted under this Act, cohabitation as man and wife
shall be sufficient presumptive evidence of the marriage of the parties, and
proof of the respondent's refusal or voluntary neglect to cohabit with the
petitioner, after his or her change of religion and after knowledge thereof by
the respondent, shall be sufficient evidence of the respondent's desertion or
repudiation of the petitioner, and shall also be sufficient evidence that such
desertion or repudiation was in consequence of the petitioner's change of
religion, unless some other sufficient cause for such desertion or repudiation
be proved by the respondent.
23 Dismissal of
suit if either party under age required by Act, or if parties cohabiting, or
respondent willing to cohabit If at any stage of the suit it be proved that the male
party to the suit is or was at the institution thereof under the age of sixteen
years, or that the female party to the suit is or was at the same time under
the age of thirteen years, or that the petitioner and the respondent are
cohabiting as man and wife, or the Court is satisfied by the evidence adduced
that the respondent is ready and willing so to cohabit with the petitioner, the
Court shall pass a decree dismissing the suit and stating the ground of such
dismissal.
24. Revival of
suit after such dismissal. If, at any time within twelve months after a decree dismissing the
suit upon any of the grounds mentioned in the last preceding section, the
respondent against desert or repudiate the petitioner upon the ground of his or
her change of religion, the suit may be revived by summoning the respondent;
and, upon proof of the former decree and of such renewed repudiation or
desertion, the suit shall re-commence at the stage at which it had arrived
immediately before the passing of such decree ; and after the proofs,
interrogations, interview and adjournment which may then be requisite under the
provisions hereinbefore contained, the Judge shall pass a decree of the nature
mentioned in section 16 of this Act.
25. Petitioner's
cruelty or adultery to bar suit. If at any stage of the suit it be proved that the
respondent has deserted or repudiated the petitioner solely or partly in
consequence of the petitioner's cruelty or adultery, the Court shall pass a
decree dismissing the suit and stating the ground of such dismissal.
A suit dismissed
under this section shall not be revived.
26. Male
petitioner's cohabitation with one of several wives to bar suit. If the petitioner, being a male,
has at the time of the institution of the suit two or more wives, he shall make
all respondents; and if at any stage of the suit it be proved that he is
cohabiting with one of such wives as man and wife, or that any one of such
wives is ready and willing so to cohabit with hind, the Court shall pass a
decree dismissing the suit and stating the ground of such dismissal.
The provisions as to
revival contained in section 24 of this Act shall apply, mutatis mutandis, to a
suit dismissed under this section.
27. Dissolution of
marriage not to affect status or right of children. A dissolution of marriage under
the provisions of this Act shall not operate to deprive the respondent's
children (if any) by the petitioner of their status as legitimate children or
of any right or interest which they would have had, according to the Native law
applicable to them, by way of maintenance, inheritance or otherwise, in case
the marriage had not been so dissolved as aforesaid.
28. Power to Court
to award alimony.
If a suit be commenced under the provisions of this Act, and it appear to the
Court that the wife has not sufficient separate property to enable her to maintain
herself suitably' to her station in life and to prosecute or defend the suit,
the Court may, pending the suit, order the husband to furnish the wife with
sufficient funds to enable her to prosecute or defend the suit and also for her
maintenance pending the suit.
If the suit be
brought by a husband against a wife, the Court may by the decree order the
husband to make such allowance to his wife for her maintenance during the
remainder of her life as the Court shall think just, and having regard to the condition
and station in life of the parties.
Any allowance so
ordered shall cease from the time of any subsequent marriage of the wife.
29. No appeal
under Act; but Judge may state case raising question whether conversion has
dissolved marriage.
No appeal shall lie against any order or decree made or passed by any Court in
any suit instituted under this Act ; but if, at any stage of the suit, the
respondent shall allege by way of defence that the marriage between the parties
has been dissolved by the conversion of the petitioner, and that consequently
the petitioner is not a Native husband or a Native wife (as the case may be)
within the meaning of this Act, the Judge, if he shall entertain any doubt as
to the validity of such defence, shall either of his own motion or on the
application of the respondent, state the case and submit it with his own
opinion thereon for the decision of the High Court.
30. Case to state
necessary facts and documents and suit to be stayed. Every such case shall concisely
set forth such facts and documents as may be necessary to enable the High Court
to decide the questions raised thereby, and the suit shall be stayed until the
judgment of such Court shall have been received as hereinafter provided.
31. Case to be
decided by three Judges. Every such case shall be decided by at least three Judges; of the
High Court, if such Court be the High Court (Subs. by A. O., 1949, Sch.,
for "at any of the Presidency towns".)[of (Subs. by A.
O., 1961, Art. 2 (with effect from the 23rd March, 1956), for "East
Bengal:") [Easy Pakistan)]; and the petitioner and respondent may
appear and be heard in the High Court in person or by advocate or vakil.
32. High Court may
refer case to Judge for additions or alterations. If the High Court shall not be
satisfied that the statements contained in the case are sufficient to enable it
to determine the questions raised thereby, the High Court may refer the case
back to the Judge by whom it was stated, to make such additions thereto or
alterations therein as the High Court may direct in that behalf.
33. High Court may
decide question raised, and Judge shall dispose of case accordingly. It shall be lawful for the High
Court, upon the hearing of any such case, to decide the questions raised
thereby, and to deliver its judgment thereon containing the grounds on which
such decision is founded;
and it shall send to
the Judge by whom the case was stated a copy of such judgment under the seal of
the Court and the signature of the Registrar, and the Judge shall, on receiving
the same, dispose of the case conformably to such judgment.
34. Saving of
Roman Catholic marriages. Nothing contained in this Act (The words and figures "or
in Acts Nos. XXV of 1864 and V of 1865" and the words , and no Clergyman
of such Church shall be liable to any suit or penalty under the provisions of
either of the two Acts last hereinbefore mentioned, for solemnizing any such
marriage," rep. by the Repealing Act, 1874 (16 of 1874).)* * *
shall betaken to render invalid any marriage of a Native convert to Roman
Catholicism if celebrated in accordance with the rules, rites, ceremonies and
customs of the Roman Catholic Church (The words and figures "or in
Acts Nos. XXV of 1864 and V of 1865" and the words , and no Clergyman of
such Church shall be liable to any suit or penalty under the provisions of
either of the two Acts last hereinbefore mentioned, for solemnizing any such
marriage," rep. by the Repealing Act, 1874 (16 of 1874).)* * *.
(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 section 35, which had been subs. by A. O., 1949, Sch.,
for the original section as partially rep. by Act 16 of 1874 and the Amending
Act, 1891(12 of 1891).
The words "Rs.
two" printed below the word "stamp" rep. by Act 12 of 1891.)
[35. Extent of Ac This Act extends to the whole of
35. Extent of Act. This Act extends to the whole of
[IMG]file:///D$/AZA/Laws/Pakistan%20Laws/aatif%20works/Image80.gif[/IMG]
THE NATIVE CONVERTS’ MARRIAGE
DISSOLUTION ACT, 1866
ACT NO. XXI OF 1866
[2nd April, 1866]
An Act to legalize, under certain
circumstances, the dissolution of marriages of Native Converts to Christianity
THE FIRST SCHEDULE
(See section 7)
FORM OF PETITION
|
Stamp |
To the Judge of the
Civil Court of
The ------------------------ day of 18
The petition of
Sheweth :
1. That your
petitioner was born on or about the day of 18
2 that your
petitioner was on the day of in the year 18 lawfully married to C. D. at
3. That the said C
Dis now of the age of years or thereabouts
4 that after his said
marriage: your petitioner lived and cohabited with his said wife at aforesaid
until the day of 18.
5. That previous to
the day of 18 your petitioner changed his religion for Christianity, and that
on such day he was baptised and became a member of the Church of:
6. That on the day of
18 [at least six months prior to the date of the petition], the said C. D.
deserted your petitioner, and has not since resumed cohabitation with him.
7. That such
desertion was in consequence of your petitioner's said change of religion.
8. That there is no
collusion nor connivance between your petitioner and the said C. D.
Your petitioner
therefore prays that Your Honour will order the said C. D. to live and cohabit
with your petitioner, or declare that your petitioner's marriage is dissolved.
A. B.
Form of verification
I, A. B., the
petitioner named in the above petition, do declare that what is stated therein
is true to the best of my information and belief.
[IMG]file:///D$/AZA/Laws/Pakistan%20Laws/aatif%20works/Image80.gif[/IMG]
THE NATIVE CONVERTS’ MARRIAGE
DISSOLUTION ACT, 1866
ACT NO. XXI OF 1866
[2nd April, 1866]
An Act to legalize, under certain
circumstances, the dissolution of marriages of Native Converts to Christianity
THE SECOND SCHEDULE
(See section 9)
FORM OF CITATION IN ORDINARY CASES
To C. D.
of
Whereas A. B. of
claiming to have been lawfully married to you, the said, C. D., has filed his
[or her] petition against you in the Civil Court of , alleging that you, the
said C. D., have deserted him [or her] for six months in consequence of his [or
her] having changed his [or her] religion for Christianity and praying that,
unless you consent to live and cohabit with him [or her], it may be declared
that his [or her] marriage is dissolved: Now this is to command you that. at
the expiration of days [at least one month] from the date of the service of this
on you, you do appear in the said Court then and there to make answer to the
said petition, a copy whereof, sealed with the seal of the said Court, is
herewith served upon you.
And take notice that
in default of your so appearing you will be liable to punishment under section
174 of the Pakistan Penal Code, XLV of 1860.
Dated the day of 18
(Sif
(Endorsement to be made after service)
[IMG]file:///D$/AZA/Laws/Pakistan%20Laws/aatif%20works/Image80.gif[/IMG]
THE NATIVE CONVERTS’ MARRIAGE
DISSOLUTION ACT, 1866
ACT NO. XXI OF 1866
[2nd April, 1866]
An Act to legalize, under certain
circumstances, the dissolution of marriages of Native Converts to Christianity
THE THIRD SCHEDULE
(See section 9)
FORM OF CITATION IN CASE OF
RESPONDENT EXEMPT FIIOM APPEARANCE IN COURT
To C. D. of Whereas A. B. of, claiming to have been
lawfully married to you, the said C. D. has filed his [or her] petition against
you in the Civil Court of alleging that you, the said C. D., have deserted him
[or her] for six months in consequence of his [or her] having changed his [or
her] religion for Christianity, and praying that, unless you consent to cohabit
with him [or her], it may be declared that his [or her] marriage is dissolved :
Now this is to command you that, at the expiration of days [at least one month]
from the service of this on you, you do bold yourself in readiness to answer
and do answer such interrogatories as may be put to you by commissioners duly
authorized in that behalf under a commission issued by this Court in reference
to the said petition, a copy whereof, sealed with the seal of the said Court,
is herewith served upon you,
And take notice that,
in default of your so holding yourself in readiness and answering such
interrogatories, you will be liable to punishment under section 174 of the
Pakistan Penal Code XLV of 1860.
Dated the day of 18
(Signed) E. F.,
Jof
(Endorsement to be made after service)
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