Indian Christian Divorce Act
The
Indian Divorce Act deals with divorce among Christians. The reasons are almost
similar to the ones under the Hindu Marriage Act. Roman Catholics do not come
under the purview of any divorce proceedings since the Roman Catholic Church
has not recognise divorce.
The Divorce Act also does not contain any provision for divorce by mutual consent.Maintenance: During the period when the divorce
case is in the court, the husband has to give one fifth of his salary for the
maintenance of his wife. Later, maintenance can be given either yearly or once
for all as total settlement.Custody: Custody of the
child is decided by the court after going into the details of each individual
case.
The
Dissolution of Marriage and Judicial separation (under the Indian Divorce Act,
1869), allows
a Christian wife to file petition for a divorce either in High
Court or District Court on the grounds…
o
That
her husband has exchanged his profession of Christianity and gone through a
form of marriage with another woman.
o
Has
been guilty of incestuous adultery.
o
Has
been guilty of bigamy and adultery.
o
Has
been guilty of rape, sodomy or bestiality.
o
Is
guilty of adultery coupled with desertion, without reasonable excuse for two
years or more.
The
Indian Divorce Act, 1869, is an attempt to amend the law relating to the
divorce of Christians and to confer jurisdiction on certain Courts in
matrimonial matters. Section 7 of the Act specifically provides
for the application of the principles and rules on which the Court for Divorce
and Matrimonial Causes in
The
relief granted under Indian Divorce Act, 1869…
o
Dissolution
of marriage
o
Nullity
of marriage
o
Judicial
separation
o
Protection
orders
o
Restitution
of conjugal rights.
The
Courts also have powers to:
o
Order
adulterer to pay damages and costs
o
Order
alimony, pendante-lite (pending decision of the
Court) or permanent
o
Order
settlement of property
o
Make
order as to custody of children in a suit or separation
Though
Section 22 of the Act bars ‘divorce mensa et toro’ (a decree
that can be obtained without the presence of the other party, an exparte decree), it provides for obtaining a decree for
judicial separation on grounds of
o
adultery
o
cruelty
o
desertion, without reasonable excuse for two years or more.
Once the
separation is awarded, from the date of the sentence, the separated wife would
be deemed spinster, with respect to property, which she may acquire or which
may devolve on her. This status would apply for the purposes of contract,
wrongs and injuries and suing and being sued in civil proceedings.
ENACTMENTS
|
THE INDIAN DIVORCE ACT, 1869 |
|
An Act to amend the law relating
to Divorce and Matrimonial Causes. 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 the Act : This
Act may be called the Indian Divorce Act and shall come into operation on the
first day of April,1869. 2)
Extent of Act : This
Act extends to the whole of Extent of power to grant relief generally, and to make decrees of
dissolution, or of nullity : Nothing
hereinafter contained shall authorise any court to
grant any relief under this Act except where the petitioner or respondent
professes the Christian religion, or
to make decrees of dissolution of marriage except where the parties to the
marriage are domiciled in or
to make decrees of nullity of marriage except where the marriage has been
solemnized in 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)
Interpretation clause : In
this Act, unless there be something repugnant in the subject or context, "High Court" - (1) "High Court" means with reference to
any area: a)
in a State, the High Court for that State; b)
in bb)
in Himachal Pradesh, the High Court of c)
in Manipur and Tripura, the High Court of Assam; d)
in the Andaman and Nicobar Islands, the High Court
at e)
in ee) in and in the case of any petition under this Act, "High
Court" means the High Court for the area where the husband and wife
reside or last resided together. "District Judge" - (2) "District Judge" means a Judge of a
principal civil court of original jurisdiction however designated : "District Court" - (3) "District Court" means, in the case of
any petition under this Act, the Court of the District Judge within the local
limits of whose ordinary jurisdiction, or of whose jurisdiction under this
Act, the husband and wife reside or last resided together : "Court"
- (4) "Court" means the High Court or the District Court as the
case may be : "Minor children" - (5) "minor children" means, in the case of
sons of Native fathers, boys, who have not completed the age of sixteen
years, and, in the case of daughters of Native fathers, girls, who have not
completed the age of thirteen years : In other cases it means unmarried
children who have not completed the age of eighteen years : "Incestuous adultery" - (6) "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 : "Bigamy with adultery" - (7) "bigamy with adultery" means
adultery with the same woman with whom the bigamy was committed : "Marriage with another woman" - (8) "marriage with
another woman" means marriage of any person, being married, to any other
person, during the life of the former wife, whether the second marriage shall
have taken place within "Desertion" - (9) "desertion" implies an abandonment
against the wish of the person charging it: and "Property" - (10) "property" includes in the case of a
wife any property to which she is entitled for an estate in remainder or
reversion or as a trustee, executrix or administratrix
; and the date of the death of the testator or intestate shall be deemed to
be the time at which any such wife becomes entitled as executrix or administratrix. II-JURISDICTION 4)
Matrimonial jurisdiction of High Courts to be exercised subject to Act
Exception : 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 has 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 the said High Courts, respectively, as hereinafter mentioned, in like
manner as if such decree or order had been originally made under this Act by
the Court so enforcing or dealing with the same. 6)
Pending suits : All
suits and proceedings in causes and matters matrimonial, which when this Act comes
into operation are pending in any High Court, shall be dealt with and decided
by such Court, so far as may be, as if they had been originally instituted
therein under this Act. 7)
Court to act on principles of Subject
to the provisions contained in this Act, the High Courts and District Courts
shall, in all suits and proceedings hereunder, act and give relief on
principles and rules which, in the opinion of the said Courts, are as nearly
as may be conformable to the principles and rules on which the Court for
Divorce and Matrimonial Causes in England for the time being acts and give
relief : 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 of 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 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 a 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 enquire into any countercharge which
may be made against the Petitioner. 13)
Dismissal of petition : In
case the court, on the evidence in relation to any such petition, is
satisfied that the petitioner's case has not been proved, or is not satisfied
that the alleged adultery has been committed, or finds that the petitioner
has, during the marriage, been accessory to, or conniving at, the going
through of the said form of marriage, or the adultery of the other party to the
marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in
collusion with either of the respondents, then, in and any of the said cases
the court shall dismiss the petition. When
the 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. Condonation : No
adultery shall be deemed to have been condoned within the meaning of this Act
unless where conjugal cohabitation has been resumed or continued. 15)
Relief in case of opposition on certain grounds : 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 dissolution of marriage made by a High Court not being a
confirmation of a decree of a District Court, shall, in the first instance,
be a decree nisi, not to be made absolute till after the expiration of such
time, not less than six months from the pronouncing thereof, as the High
Court, by general or special order from time to time, directs. Collusion : During the period any person shall be at liberty, in
such manner as the High Court by general or special order from time to time
direct, to show cause why the said decree should not be made absolute by
reason of the same having been obtained by collusion or by reason of material
facts not being brought before the court. On
cause being so shown, the court shall deal with the case by making the decree
absolute, or by reversing the decree nisi, or by requiring further inquiry,
or otherwise as justice may demand. The
High Court may order the cost of Counsel and witnesses and otherwise arising
from such cause being shown, to be paid by the parties or such one or more of
them as it thinks fit, including a wife if she have
separate property. Whenever
a decree nisi has been made, and the petitioner fails, within a reasonable
time, to move to have such decree made absolute, the High Court may dismiss
the Suit. 17)
Confirmation of decree for dissolution by District Judge : Every
decree for dissolution of a 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 he thinks fit, remove such suit and try and determine the
same as a court of original jurisdiction, and the provisions contained in
section 16 shall apply to every suit so removed : or it may direct the
District Judge to take such steps in respect of the alleged collusion as may
be necessary, to enable him to make a decree in accordance with the justice
of the case. 17A)
Appointment of officer to exercise duties of King's Proctor : The
Government of the State within which any High Court exercises jurisdiction,
may appoint an officer who shall, within the jurisdiction of the High Court
in that State, have the like right of showing cause why a decree for the dissolution
of a marriage should not be made absolute or should not be confirmed, as the
case may be, as is exercisable in England by the King's Proctor ; and the
said Government may make rules regulating the manner in which the right shall
be exercised and all matters in incidental to or consequential on any
exercise of the right. 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 or 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 effect 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 provisions of section 17, clauses 1,
2, 3, and 4, shall, mutatis mutandis apply to such decrees. 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 and
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 District Court or the High Court;
and the court, on being satisfied of the truth of the statements made in such
petition, and that there is no legal ground why the application should not be
granted, may decree judicial separation accordingly. 24)
Separated wife deemed spinster with respect to after-acquired property
: In
every case of a judicial separation under this Act, the wife shall, from the
date of the sentence, and whilst the separation continues, be considered as
unmarried with respect to property of every description which she may
acquire, or which may come to or devolve upon her. Such
property may be disposed of by her in all respects as an unmarried woman, and
on her decease the same shall, in case she dies intestate, go as the same
would have gone if her husband had been then dead : Provided
that, if any such wife again cohabits with her husband, all such property as
she may be entitled to when such cohabitation takes place shall be held to
her separate use, subject, however, to any agreement in writing made between
herself and her husband whilst separate. 25)
Separated wife deemed spinster for purpose 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, acts 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 for 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, (10 of 1865) does
not apply, may, when deserted by her husband, present a petition to the
District Court or the High Court, at any time after such desertion, for an
order to protect any property which she may have acquired or may acquire, and
any property of which she may have become possessed or may become possessed
after such desertion, against her husband or his creditors, or any person
claiming under him. 28)
Court may grant protection-order : 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 that time at which
the desertion commenced, and shall, as regards all persons dealing with the
wife in reliance thereon, be conclusive as to such time. 29)
Discharge or variation of orders : The
husband or any creditor of, or person claiming under him, may apply to the
court by which such order was made for the discharge or variation thereof,
and the court, if the desertion has ceased, or if for any other reason it
thinks fit so to do, may discharge or vary the order accordingly. 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 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 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 costs of the proceedings. Provided
that the co-respondent shall not be ordered to pay the petitioner's costs : (1)
if the respondent was, at the time of the adultery, living apart from her
husband and leading the life of a prostitute, or (2)
if the co-respondent had not, at the time of the
adultery, reason to believe the respondent to be a married woman. Power to order litigious intervenor to pay
costs : Whenever
any application is made under section 17, the court, if it thinks that the
applicant had no grounds or no sufficient grounds for intervening, may order
him to pay the whole or any part of the costs occasioned by the application. IX-ALIMONY 36)
Alimony pendente lite
: 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 with 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 thins 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. 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 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 been confirmed, may inquire into the existence of
ante-nuptial or post-nuptial settlements made on the parties whose marriage
is the subject of the decree, and may make such orders, with reference to the
application of the whole or a portion of the property settled, whether for
the benefit of the husband 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 thinks 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 thinks fit, direct proceedings to be taken
for placing such children under the protection of the court. 44)
Power to make such orders after decree or confirmation : 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 provisions, 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 46)
Forms of petitions and statements : The
forms set forth in the Schedule to this Act, with such variation as the circumstances
of each case require, may be used for the respective purposes mentioned in
such Schedule. 47)
Petition to state absence of collusion : Every
petition under this Act for a decree of dissolution of marriage, or of
nullity of marriage, or of judicial separation shall state that there is not
any collusion or connivance between the petitioner and the other party to the
marriage. Statement 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 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 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 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 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 Act may be heard, if the court
thinks fit, with closed doors. 54)
Power to adjourn : The
court may, from time to time, adjourn the hearing of any petition under this
Act, and may require further evidence thereon if it sees fit so to do. 55)
Enforcement of, and appeal from, orders and decrees : All
decrees and orders made by the court in any suit or proceeding under this Act
shall be enforced and may be appealed from, in the like manner as the decrees
and orders of the court made in the exercise of its original civil
jurisdiction are enforced and may be appealed from, under the laws, rules and
orders for the time being in force : 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 Appeal as to costs : Provided
also that there shall be no appeal on the subject of costs only. 56)
Appeal to the Supreme Court : Any
person may appeal to the Supreme Court from any decree (other than a decree
nisi) or order under this Act of a High Court made on appeal or otherwise, and
from any decree (other than a decree nisi) or order made in the exercise of
original jurisdiction by Judges of a High Court or of any when the High Court declares that the case is a fit one for
appeal to the Supreme Court. XIII-RE-MARRIAGE 57)
When
six months after the date of an order a High Court confirming the decree for
a dissolution of marriage made by a District Judge have expired, or
when six months after the date of any decree of a High Court dissolving a
marriage have expired, and no appeal has been presented against such decree
to the High Court in its appellate jurisdiction, or when any such appeal has been dismissed. or
when in the result of any such appeal any marriage is declared to be
dissolved, but
not sooner, it shall be lawful for the respective parties to the marriage to
marry again, as if the prior marriage had been dissolved by death : Provided
that no appeal to 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. 58)
English clergyman not compelled to solemnize marriages of persons divorced
for adultery : No
clergyman in Holy Orders of the Church of England 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 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 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. All such rules, alterations and additions shall be published in the Official Gazette.
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