Divorce Act 1869
PREAMBLE. Preamble
1. Short title commencement of act
2. Extent of act
3. Interpretation-clause
4. Matrimonial jurisdiction of High Courts to be exercised subject to act
5. Enforcement of decrees or orders made heretofore by supreme or High Court
6. Pending suits
7. Court to act on principles of English divorce Court
8. Extraordinary
jurisdiction of High Court
9. Reference to High Court
10. When husband may petition for dissolution
11. Adulterer to be co-respondent
12. Court to be satisfied of a absence of collusion
13. Dismissal of petition
14. Power to Court to pronounce decree for dissolving
marriage
15. Relief in case of opposition on certain grounds
16. Decrees for dissolution to be nisi
17. Confirmation of decree for dissolution by district Judges
17-A. Appointment of office to exercise duties of king's proctor
18. Petition for decree of nullity
19. Grounds of decree
20. Confirmation of District Judge's decree
21. Children of annulled
marriage
22. Bar to decree for divorce a mensa et toro but judicial separation
obtainable by husband or wife
23. Application for separation made by petition
24. Separated wife deemed spinster with respect to after acquired property
25. Separated wife deemed spinster for purposes of contract and suing
26. Decrees of separation obtained during absence of husband or wife may be
reversed
27. Deserted wife may apply to Court for protection
28. Court may grant protection order
29.
Discharge or variation of orders
30. Liability of
husband seizing wife's property after notice of order
31. Wife's legal position during continuance of order
32. Petition for
restitution of conjugal rights
33. Answer to petition
34. Husband may claim damages from adulterer
35. Power to order adulterer to pay costs
36. Alimony pendent lite
37. Power to order permanent alimony
38. Court may direct payment of alimony to wife or to her trustee
39. Power to order settlement of wife's property for benefit of husband and
children
40. Inquiry into
existence of ante-nuptial or post-nuptial settlements
41. Power to make orders as to custody of children in suit for separation
42. Power to make such orders after decree
43. Power to make orders as to custody of children in suits for dissolution
or nullity
44. Power to make
such orders after decree or confirmation
45. Code of Civil Procedure to apply
46. Forms of petitions and statements
47. Stamp on petition
48. Suits on behalf of lunatics
49. Suits by minors
50. Service of
petition
51. Mode of taking
evidence
52. Competence of husband and wife to give evidence as to cruelty or
desertion
53. Power to close doors
54. Power to adjourn
55. Enforcement of and appeals from orders and decrees
56. Appeal to queen
in council
57. Liberty to parties to marry again
58. English clergyman not compelled to solemnize marriages of persons
divorced for adultery
59. English minister refusing to perform ceremony to permit use of his
church
60. Decree for
separation or protection-order valid as to persons dealing with wife before
reversal
61. Bar of suit for criminal conversation
62. Power to make rules
THE DIVORCE ACT
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 Pakistan the principal provisions of the Matrimonial
Causes Act, 1857 (20 & 21 Vict., c. 85), as amended by the Matrimonial
Causes Act, 1859 (22 & 23 Vict., c. 61), the Matrimonial Causes Act, 1860
(23 & 24 vict., c. 144), and the Matrimonial Causes Act, 1866 (29 & 30
Vict., c. 32). It also embodies many rulings of Sir Cress-well and Lord
Penzance.
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 India for
the dissolution of the
marriage
of persons
domiciled in the United Kingdom.
The Limitation Act does not apply to suits under this Act, see the
Limita*tion Act, 1908 (9 of 1908), s. 29 (2).
It has been declared to be in force in Baluchistan by the British
Baluchistan Laws Regulation, 1913 (2 of 1913), s. 3.
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
modifica*tions, 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 Regu*lation, 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
Pakistan.]
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 authorise 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".
)
[Pakistan] at the time, when the petition is presented,
(
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".
)
[Pakistan] at
the time of presenting the* petition.]
3. Interpretation‑clause.
In this Act, unless there be something
repugnant in the sub*ject 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).
)
[East Pakistan];.
(
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 West Pakistan,
the High Court of West Pakistan; and]
(
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 Govern*ment 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 jurisdic*tion 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 juris*diction 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 consan*guinity (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 3
rd
March, 1956).
)
[Pakistan]
or elsewhere
(9) Desertion
"desertion" implies an abandonment against the wish of
the person charging it : and
(10) property
"property" includes, in the case of a wife, any
property to which she is entitled for an estate in remainder or reversion,
or as a trustee, executrix or 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 matri*monial
jurisdiction, respectively, in any cause or matter matri*monial, may be
enforced and dealt with by
(
Subs. by A. O., 1961, Art. 22 and Sch.,
for "the said High Courts, res*pectively," (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
matri*monial, which when this Act comes into operation are pending in any
High Court, shall be dealt with and decided by such Court, so far as may be,
as if they had been originally instituted therein, under this Act.
7. Court to act on principles of English Divorce Court.
Subject to
the provisions contained in this Act, the High Courts and District Courts
shall, in all suits and proceedings here‑*under, act and give relief on
principles and rules which, in the opinion of the said Courts, are as nearly
as may be conformable *to the principles and rules on which the Court for
Divorce and Matrimonial Causes in England for the time being acts and gives
relief.
(
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 proceed*ing, 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 solemniz*ation 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 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 dis*cover 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
com*mitted,
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 wilfully 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
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, includ*ing 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 Govern*ment 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 (R.‑vision and Declaration ) Act, 1951 (26 of
1951), s. 4 and III Sch., for " Indian State".
)
[Acceding State] this
section shall have effect as if the reference to the Provincial Government
was a reference to the Central Government.]
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 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 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 peti*tion, 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 co*habitation 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, ali*mony 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 neces*saries 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 hus*band 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: RESTI'IVTION OF CONJUGAL RIGHTS
32. Petition for restitution of conjugal rights.
When either the
husband or the wife has, without rea*sonable 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
peti*tion, and that there is no legal ground why the application should not
be granted, may decree restitution of conjugal rights accor*dingly.
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 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 prosti*tute, 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, 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 ab*solute: 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 hus*band 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 be*comes 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 pro*perty, 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
notwithstand*ing 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 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
appli*cation 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 pro*ceedings 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 de*cree absolute
or its decree (as the case may be), make such interim or*ders 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 plac*ing 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 proceed*ings 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 separa*tion
(
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.
)
[Pakistan], in such manner as the High
Court by general or special order from time to time directs:
Provided that the Court may dispense with such service alto*gether 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. Liberty to parties to marry again.
When six months after the date
of an order of a High Court confirming the decree for a dissolution of
marriage
made by a District Judge have
expired:
or when six months after the date of any decree of a High Court dissolving a
marriage
have expired, and no appeal has been
presented against such decree to the High Court in its appellate
jurisdiction,
or when any such appeal has been dismissed,
or when in the result of any such appeal any
marriage
is dec*lared 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 Ireland " rep., ibid.
)
* * 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
(
The
word "United " rep. by the Repealing Act, 1873 (12 of 1873).
)
* Church
refuses to perform such
marriage
service
between any per*sons 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 re*versal, 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 dis*continued, 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 separa*tion.
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].This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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