CONVERTS ?MARRIAGE DISSOLUTION ACT, 1866 [REPEALED] THE CONVERTS MARRIAGE
DISSOLUTION ACT, 1866 [Act, No. 21 of 1866] {The Act has not been
extended to the State of Manipur, vice Act, 30 of 1950, section 3(2) and
Schedule} [2nd April, 1866] An Act to legalize, under certain
circumstances, the dissolution of marriages {The word native
omitted by the A.O.1950.} of Converts to Christianity. WHEREAS it is expedient to legalize,
under certain circumstances, the dissolution of marriages of { The word "
Native" omitted by the A.O.1950.} Converts to Christianity deserted
or repudiated on religious grounds by their wives or husbands; It is enacted as
follows:-- This Act may be cited as the {'The word
"Native" omitted by the A.O.1950.} Converts' Marriage Dissolution
Act, 1866. Repealed by the Repealing Act, 1874 (16
of 1874), section 1 and Schedule I. In this Act-- Husband..-- {' The word " Native "
omitted by the A.O.1950.} husband " shall mean a married man domiciled in
{Subs. by the A.O.1950, for " the Provinces " which had been subs. by
the A.O.1948, for "British India".} [India], who shall have completed
the age of sixteen years, and shall not be a Christian, a Muhammadan nor a Jew
: Wife.-- "{' The word " Native "
omitted by the A.O.1950.} wife " shall mean a married woman domiciled in
{Subs.by the A.O.1950, for " the Provinces " which had been subs. by
the A.O.1948, for "British India".} [India], who shall have completed
the age of thirteen years, and shall not be a Christian, a Muhammadan nor a
Jewess : Personal law..-- "{ Subs.by the A.O.1950 for
"Native law".} [Personal law]" shall mean any law, or custom
having the force of law, of any persons domiciled in { Subs.by the A.O.1950,
for " the Provinces " which had been subs.by the A.O.1948, for
"British India".} [India] other than la Christians, Muhammadans and
Jews: Month and year.-- "Month" and " year
" shall respectively mean month and year according to the British
calendar: {The paragraph relating to
"Number" rep.by Act 10 of 1914, s.3 and Sch.II, and the definition of
"High Court" rep. by the A.O.1937.} If a {'The word "Native"
omitted by the A.O.1950.} husband change his religion for Christianity,
and if in consequence of such change his {'The word "Native"
omitted by the A.O.1950.} wife, for the space of six continuous months, desert
or repudiate him, he may sue her for conjugal society. If a {The word "Native"
omitted by the A.O.1950.} wife change her religion for Christianity, and
if in consequence of such change her {The word "Native" omitted
by the A.O.1950.} husband, for the space of six continuous months, desert or
repudiate her, she may sue him for conjugal society. If the respondent, at the time of
commencement of such suit, reside within the local limits of the ordinary
original civil jurisdiction of any of the High Courts of Judicature, the suit
shall be commenced in such Court; otherwise it shall be commenced in the
principal Civil Court of original jurisdiction of the district in which the
defendant shall reside at the commencement of the suit. The suit shall be commenced by a
petition in the form in the d First Schedule to this Act, or as near thereto as
the circumstances of the case will allow. The statements made in the petition
shall be verified by the petitioner in the manner required by law for the
verification of plaints; and the petition {The words "shall bear a stamp
of two rupees, and" rep.by Act 7 of 1870, section 2, Schedule III, Pt.
II.} may be amended by permission of the Court. A copy of the petition shall be served
upon the respondent, and the Court shall thereupon issue a citation under the
seal of the Court and signed by the Judge. In ordinary cases the citation shall be
in the form in the Second Schedule to this Act, or as near thereto as the
circumstances of the case will allow. But where the respondent is exempt by
law from personal appearance in Court, or where the Judge shall so direct, the
citation shall be in the form in the Third Schedule to this Act, or as near
thereto as the circumstances of the case will allow. A copy of the citation sealed with the
seal of the Court shall be served on the respondent; and the provisions of the
Code of Civil Procedure as to the service and endorsement of summonses shall
apply, mutatis mutandis, to citations under this Act. If the respondent shall not obey such
citation, and comply With every other requirement made upon her or him
under the provisions of this Act, she or he shall be liable to punishment
under section 174 of the Indian Penal Code.(43 OF 1860) On the day fixed in the citation the
petitioner shall appear in Court, and the following points shall be
proved:-- (1) the identity of the
parties . (2) the marriage between
the petitioner and the respondent . (3) that the male party
to the suit has completed the age of sixteen years, and that the female party
to the suit has completed the age of thirteen years . (4) the desertion or
repudiation of the petitioner by the respondent . (5) that such desertion
or repudiation was in consequence of the petitioner's change of religion . (6) and that such
desertion or repudiation had continued for the six months immediately before
the commencement of the suit. The respondent, if such points be
proved to the satisfaction of the Judge, shall thereupon be asked whether
she or he refuses to cohabit with the petitioner, and, if so, what is the
ground of such refusal. In ordinary cases such interrogation
and every other interrogation prescribed by this Act shall be made by the
Judge, but when the respondent is exempt by law from personal appearance in
Court, or when the Judge shall, in his discretion, excuse the respondent from
such appearance, the interrogations shall be made by Commissioners acting under
such commission as hereinafter mentioned. Every interrogation mentioned in this
Act and made by the Judge may, at the discretion of the Judge, take place
in open Court , or in his private room. If any such interrogation take place in
open Court, the Judge may, so long as it shall continue, exclude from the Court
all such persons as he shall think fit to exclude. If the respondent be a female, and in
answer to the interrogatories of the Judge or Commissioners, as the case may
be, shall refuse to cohabit with the petitioner, the Judge, if upon
consideration of the respondent's answers and of the facts which may have been
proved by the petitioner he shall be of opinion that the ground for: such
refusal is the petitioner's change of religion, shall make an order adjourning
the case for a year, and directing that, in the interring, the parties shall,
at such place and time as he shall deem convenient, have an interview of such
length as the Judge shall direct, and in the presence of such person or persons
(who may be a female or females) as the Judge shall select, with the view of
ascertaining whether or not the respondent freely and voluntarily persists in
such refusal.(Adjournment for a year.Interview.) At the expiration of such adjournment
the petitioner shall again appear in Court and shall prove that the said desertion
or repudiation had continued up to the time last hereinbefore referred to, and
if the points mentioned in section 12 and this section of this Act shall be
proved to the satisfaction of the Judge, and if the respondent on being
interrogated by the Judge or Commissioners, as the case may be, again refuse to
cohabit with the petitioner, the respondent shall be taken to have finally
deserted or repudiated the petitioner, (Interrogation of respondent.) Decree.- and the Judge shall, by a
decree under his hand and sealed with the seal of his Court, declare that the
marriage between the parties is dissolved. If the respondent be a male, and in
answer to the interrogatories of the Judge or Commissioners, as the case may
be, shall refuse to cohabit with the petitioner, the Judge, if upon
consideration of the respondent's answers and of the facts which may have been
proved by the petitioner he shall be of opinion that the ground of such refusal
is the petitioner's change of religion, shall adjourn the case for a year. At the expiration of such adjournment,
the petitioner shall again appear in Court; and if the respondent on being
interrogated by the Judge or Commissioners, as the case may be, again refuse to
cohabit with the petitioner, the Judge shall thereupon pass such a decree as
last aforesaid : Provison,-- Provided that if the petitioner shall
so desire (but not otherwise), the proceedings in the suit shall, mutatis
mutandis, be the same as in the case of a female respondent. Notwithstanding anything hereinbefore
contained, if it shall appear at any stage of the suit that both or either of
the parties had not attained puberty at the date of their marriage, and
that such marriage has not been consummated; and if, in answer to the
interrogatories made pursuant to section 13 of this Act, the respondent shall
on refusal to cohabit with the petitioner, and alleged, as the ground for
such refusal, that the petitioner has changed his or her religion, the Judge
shall thereupon pass such a decree as last aforesaid. When any decree dissolving a marriage
shall have been passed under the provisions of this Act, it shall be as lawful
for the respective parties thereto to marry again as if the prior marriage had
been dissolved by death, and the issue of any such re-marriage shall be
legitimate, any { Subs.by the A.O.1950, for "Native law".} [personal
law] to the contrary notwithstanding : Provided always that no minister of
religion shall be compelled to solemnize the marriage of any person whose former
marriage may have been dissolved under this Act, or shall be liable to any suit
or penalty for refusing to solemnize the marriage of any such person. In suits instituted under this Act, the
Judge shall order a commission to issue to such persons, whether males or
females or both, as he shall think fit, for the examination on interrogatories
or otherwise of any persons so exempt as aforesaid. The provisions of the Code of Civil
Procedure (5 of 1908.) shall, so far as practicable, apply to commissions
issued under this section. At any stage of a suit instituted under
this Act, cohabitation as man and wife shall be sufficient presumptive evidence
of the marriage of the parties, and proof of the respondent's refusal or
voluntary neglect to cohabit with the petitioner, after his or her change of
religion and after knowledge thereof by the respondent, shall be sufficient
evidence of the respondent's desertion or repudiation of the petitioner, and
shall also be sufficient evidence that such desertion or repudiation was in
consequence of the petitioner's change of religion, unless some other sufficient
cause for such desertion or repudiation be proved by the respondent. The provisions of the Code of Civil
Procedure (5 of 1908.) as to the , summoning and examination of witnesses shall
apply in suits instituted under this Act. If at any stage of the suit it be
proved that the male party to suit is or was at the institution thereof
under the age of sixteen years, or that the female party to the suit is or was
at the same time under the age of thirteen years, or that the petitioner and
the respondent are cohabiting as man and wife, or if the Court is satisfied by
the evidence adduced that the respondent is ready and willing so to cohabit
with the petitioner, the Court shall pass a decree dismissing the suit and
stating the ground of such dismissal. If at any time within twelve months
after a decree dismissing the suit upon any of the grounds mentioned in the
last preceding section the respondent again desert or repudiate the petitioner
upon the ground of his or her change of religion, the suit may be revived by
summoning the respondent; and upon proof of the former decree and of such
renewed repudiation or desertion, the suit shall recommence at the stage at
which it had arrived immediately before the passing of such decree; and, after
the proofs, interrogations, interview and adjournment which may then be
requisite under the provisions hereinbefore contained, the Judge shall pass a
decree of the nature mentioned in section 16 of this Act. If at any stage of the suit it be proved
that the respondent has deserted or repudiated the petitioner solely or partly
in consequence of the petitioner's cruelty or adultery, the Court shall pass a
decree dismissing the suit and stating the ground of such dismissal. A suit dismissed under this section
shall not be revived. If the petitioner, being a male, has at
the time of the institution of the suit two or more wives, he shall make them
all respondents; and if at any stage of the suit it be proved that he is
cohabiting with one of such wives as man and wife, or that any one of such
wives is ready and willing so to cohabit with him, the Court shall pass a
decree dismissing the suit and stating the ground of such dismissal. The provisions as to revival contained
in section 24 of this Act shall apply, mutatis mutandis, to a suit dismissed
under this section. A dissolution of marriage under the
provisions of this Act shall not operate to deprive the respondent's
children (if any) by the petitioner of their status as legitimate children, or
of any right or interest which they would have had, according to the { Subs.by
the A.O.1950, for "Native law",} [personal law] applicable to them,
by way of maintenance, inheritance, or otherwise, in case the marriage had not
been so dissolved as aforesaid. If a suit be commenced under the
provisions of this Act, and it appear to the Court that the wife has not
sufficient separate property to enable her to maintain herself suitably to her
station in life and to prosecute or defend the suit, the Court may, pending the
suit order the husband to furnish the wife with sufficient funds to enable her
to prosecute or defend the suit, and also for her maintenance pending the suit. If the suit be brought by a husband
against a wife, the Court may by the decree order the husband to make such
allowance to his wife for her maintenance during the remainder of her life as
the Court shall think just, and having regard to the condition and station in
life of the parties. Any allowance so ordered shall cease
from the time of any subsequent marriage of the wife. No appeal shall lie against any order
or decree made or passed by any Court in any suit instituted under this Act but
if at any state of the suit, the respondent shall allege by way of
defence that the marriage between the parties has been dissolved by the
conversion of the petitioner, and that consequently the petitioner is not
a { The word " Native " omitted by the A.O.1950.} husband or a
{ The word " Native " omitted by the A.O.1950.} wife ( as the case
may be) within the meaning of this Act, the Judge, if he shall entertain any
doubt as to the validity of such defence, shall, either of his own motion or on
the application of the respondent, state the case and submit it with his
own opinion thereon for the decision of the High Court. Every such case shall concisely set
forth such facts and documents as may be necessary to enable the High Court to
decide the questions raised thereby, ad the suit shall be stayed until the
judgment of such Court shall have been received as hereinafter provided. Every such case shall be decided by at
least three Judges of the High Court, if such Court at any of the
presidency-towns ; and the petitioner and respondent may appear and be heard in
the High Court in person or by advocate or vakil. If the High Court shall not be
satisfied that the statement contained in the case are sufficient to enable it
to determine the questions raised thereby, the High Court may refer the case
back to the Judge by whom it was stated, to make such additions thereto or
alterations therein as the High Court may direct in that behalf. It shall be lawful for the High Court,
upon the hearing of any such case, to decide the questions raised thereby, and
to deliver its judgment thereon containing the grounds on which such decision
is founded; and it shall send to the Judge by whom
the case was stated a copy of such judgment under the seal of the Court and the
signature of the Registrar, and the Judge shall, on receiving the same, dispose
of the case conformably to such judgment. Nothing contained in this Act {The
words and figures "or in Acts Nosection XXV of 1864 and V of 1865"
rep. by Act 16 of 1874, section 1 and Schedule} shall be taken to render
invalid any marriage of a {The word "Native" omitted by the
A.O.1950.} convert to Roman Catholicism if celebrated in accordance with the
rules, rites, ceremonies an customs of the Roman Catholic Church {The words
"and no Clergyman of such Church shall be liable to any suit or penalty
under the provisions of either of the two Acts last herein mentioned, for
solemnizing any such marriage rep. by Act 16 of Schedule [NOTE:?The Act does
not extend to the State of Manipur, vice Act 30 of 1950, section 3 (2A) and
Schedule (Part A), as amended by Act 68 of 1956, section 2]} {Subsection by the A.O.1948, for the
former section 35.} This Act extends to {Subsection by the A O.1950, for
"all the Provinces of India'.} [NOTE:-The Act does not extend to the State
of Manipur, vice Act 30 of 1950, section 3 (2A) and Schedule (Part A), as
amended by Act 68 of 1956, section 2]. [the whole of India except {Substituted
by the Adaptation of Laws (No.2) Order, 1956, for "Part B State".}[1]the
"state of Jammu and Kashmir and the Union Territory of Manipur.]
Preamble
1 - CONVERTS MARRIAGE DISSOLUTION ACT, 1866PREAMBLE
Schedule 1 - FIRST
SCHEDULE
THE FIRST SCHEDULE
(See section 7.)
FORM OF PETITION
Stamp {The words
" Rs. two" printed below the word "Stamp"
rep. by Act 12 of 91, section 2 and Schedule I.}
To the Judge of the Civil Court of
The day of 18
The petition of A.B. of ????????????.
Sheweth:--
1.
That
your petitioner was born on or about the day of 18.
2.
That
your petitioner was on the day of in the year 18 lawfully married to C.D.
at???????????..
3.
That
the said C.D. is now of the age of years or thereabouts.
4.
That
after his said marriage, your petitioner lived and cohabited with his said wife
at aforesaid until the day of 18.
5.
That
previous to the day of 18 your petitioner changed his religion for
Christianity, and that on such day e was bashed and became a member of the
Church of???????????..
6.
That
on the day of 18 [at least six months prior to the date of the petition], the
said C.D. deserted your petitioner, and has not since resumed cohabitation with
him.
7.
That
such desertion was in consequence of your petitioner's said change of religion.
8.
That
there is no collusion nor connivance between your petitioner and the said C.D.
Your petitioner therefore prays
that Your Honour will order the said C.D. to live and cohabit with your
petitioner, or declare that your petitioner's marriage is dissolved.
A. B.
Form of verification
I. A. B, the petitioner named in
the above petition, do declare that what is stated therein is true to the best
of my information and belief.
Schedule 2 - SECOND
SCHEDULE
THE SECOND SCHEDULE
(See section 9)
FORM OF CITATION
INORDINATE CASES
To C.D. of?????????????...
Whereas A. B. of, claiming to have been
lawfully married to you, the said C.D., has filed his [or her] petition against
you in the Civil Court of alleging that you, the said C.D., have deserted him
[or her] for six months in consequence of his [or her] having changed his [or
her] religion for Christianity and praying that, unless you consent to live and
cohabit with him [or her], it may be declared that his [or her] marriage is
dissolved: Now this is to command you that, at the expiration of days [at least
one month] from the date of the service of this on you, you do appear in the
said Court then and there to make answer to the said petition, a copy whereof,
sealed with the seal of the said Court, is herewith served upon you.
And take notice that in default of your
so appearing, you will be liable to punishment under section 174 of
the Indian Penal Code. (45 of 1860.)
Dated the day of 18.
(Signed ) E. F.,
Judge of the Civil
Court of
(Indorsement to be
made after service )
This citation was duly served by G.H.
on the within-named C.D. of at on the day of 18.
(Signed ) G. H.
Schedule 3 - THIRD
SCHEDULE
THE THIRD SCHEDULE
(See section 9)
FORM OF CITATION IN
CASE OF RESPONDENT EXEMPT FROM APPEARANCE IN COURT
To C.D. of???????????????..
Whereas A.B. of , claiming to have been
lawfully married to you, the said C.D., has filed his [or her] petition against
you in the Civil Court of alleging that you, the said C.D., have deserted him
[or her] for six months in consequence of his [or her] having changed his [or
her] religion for Christianity, and praying that, unless you consent to cohabit
with him [or her], it may be declared that his [or her] marriage is dissolved:
Now this is to command you that, at the expiration of days [at least one month]
from the service of this on you, you do hold yourself in readiness to answer
and do answer such interrogatories as may be put to you by Commissioners duly
authorised in that behalf under a commission issued by this Court, in reference
to the said petition, a copy whereof, sealed with the seal of the said Court,
is herewith served upon you.
And take notice that, in default of
your so holding yourself in readiness and answering such interrogatories, you
will be liable to 60 punishment under section 174 of the Indian Penal
Code. (45 of 1860.)
Dated the day of 18.
(Signed) E. F.,
Judge of the Civil
Court of
(Indorsement to be
made after service )
This citation was duly served by G.H.
on the within-named C.D. of at on the day of 18.
(Signed ) G. H.
[1] Substituted for words "the
territories which, immediately before the 1st November, 1956, were comprised in
Part B States" by the Miscellaneous Personal Laws (Extension) Act 1959,
w.e.f. 01-02-1960.