[Updated as on 1-10-2021] [26th February, 1869] An Act
to amend the law relating to Divorce and Matrimonial Causes[2] 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: Statement
of Objects and Reasons. The object
of this Bill is to place the matrimonial Law administered by the High Courts,
in the exercise of their original jurisdiction, on the same footing as the
Matrimonial Law administered by the Court for Divorce and Matrimonial Causes in
England. The
9th Section of the Act of Parliament for establishing High Courts of Judicature
in India, (24 and 25 Vic. Ch. 104) provides that the High Courts shall exercise
such Matrimonial Jurisdiction as Her Majesty by Letters Patent shall grant and
direct. Under the authority thus conferred by Parliament, the 35th Section of
the Letters Patent, constituting the High Courts of Judicature, provides as
follows: ?And
we do further ordain that the said High Court of Judicature at Fort William in
Bengal shall have jurisdiction in matters Matrimonial between our subjects
professing the Christian religion, and that such jurisdiction shall extend to
the local limits within which the Supreme Court now has Ecclesiastical
Jurisdiction. Provided always that nothing herein contained shall be held to
interfere with the exercise of any Jurisdiction in matters matrimonial by any
Court not established by Royal Charter within the said Presidency lawfully
possessed thereof?. In the
Despatch of the Secretary of State transmitting the Letters Patent (Letter from
Secretary of State, Judicial No. 24 dated 14-5-1862), the 33rd and 34th
paragraphs are to the following effect: ?33.
Her Majesty's Government are desirous of plac ing the Christian subjects of the
Crown within the Presi dency in the same position under the High Court, as to
matters matrimonial in general as they now are under the Supreme Court, and
this they believe to be effected by Clause 35 of the Charter. But they consider
expedi ent that the High Court should possess, in addition, the powers of
decreeing divorce, which the Supreme Court does not possess, in other words,
that the High Court should have the same jurisdiction as the Court for Di vorce
and Matrimonial Causes in England, established in virtue of the Act 20 and 21
Vic. C. 85, and in regard to which further provisions were made by 22 and 23
Vic. C. 61, and 23 and 24 Vic. C. 144. The Act of Parliament for establishing
the High Court, however, does not pur port to give to the Crown the power of
importing into the Charter all the provisions of the Divorce Court Act, and
some of them the Crown clearly could not so im port, such for instance as those
which prescribe the pe riod of remarriage, and those which exempt from pun
ishment clergymen refusing to remarry adulterers. All these are, in truth,
matters for Indian legislation, and I request that you will immediately take
the subject into your consideration and introduce into your Council a Bill for
conferring upon the High Court the jurisdiction and powers of the Divorce Court
in England, one of the provisions of which should be to give an appeal to the
Privy Council in those cases in which the Divorce Court Act gives an appeal to
the House of Lords. 34.
The objects of the proviso at the end of Clause 35 is to obviate any doubt that
may possibly arise as to whether, by vesting the High Court with the powers of
the Court for Divorce and Matrimonial Causes in England, it was intended to
take away from the Courts within divisions of the Presidency not established by
Royal Charter any jurisdiction which they might have in matters matrimonial,
as, for instance, in a suit for alimony between Armenians or Native Christians.
With any such jurisdiction it is not intended to interfere.? In
addition to the Act of Parliament mentioned by the Secretary of State as
regulating the jurisdiction of the English Divorce Court the Statutes 25 and 26
Vic. Ch. 81 has been passed in the year just expired (1862). The object of this
Statute to render perpetual 23 and 24 Vic. Ch. 144 the duration of which had
been originally limited to two years. The
draft of a Bill has been prepared to give effect to the Secretary of State
instructions, but some variations from the English Statutes in respect of
Procedure have been adopted. With a
view to uniformity in practice in the several branches of jurisdiction, the
Bill provides that the Procedure of the Code of Civil Procedure shall be
followed, instead of the Rules of Her Majesty's Court for Divorce and
Matrimonial Causes in England and it omits the provision in 20 and 21 Vic. Ch.
85 respecting the occasional trial of questions of fact by juries. In
respect of fees, it has been considered that the Act 20 of 1862 (lately
continued by the Governor-General in Council for another year) renders special
legislation unnecessary. The
power of intervening in suits, given by 23 and 24 Vic. Ch. 144, to the Attorney
General and the Queen's Proctor is, in this Bill, given to the Advocate General
and the Solicitor to Government. There
are also other variations of a minor and verbal character. The
Draft Bill having been submitted to the Judges of the several High Courts, with
request that they would favour the Government with their opinions on it
communications have been received, from the Judges at Calcutta and Bombay and
will be laid before the Council. In these letters there are several important
suggestions, and the Honourable the Chief Justice of the High Court at Calcutta
has intimated that he considers it doubtful whether decrees by the High Court
under the proposed Act, dissolving the marriages of persons who have been
married in England would have legal effect there. The question is one of
considerable difficulty as well as of great importance, and has been stated to
the Secretary of State, with the view of obtaining the opinion of Her Majesty's
Law Officers, and, if necessary, some legislative measure to remove all
doubts.? ??Calcutta Gazette, 1863, p. 173. Statement
of Objects and Reasons of Amendment Act 49 of 2001. The
Law Commission of India in its 27th, 54th and 129the Reports and the Committee
on Subordinate Legislative (11th Lok Sabha) had recommended that the tendency
to obtain the adjournments on frivolous grounds in the cases pending in Courts
should be curbed. The Malimath Committee also recommended that remedial
measures should be taken immediately for speedy disposal of the cases pending
in courts. 2. ????Sections
36 and 41 of the Indian Divorce Act, 1869, Sections 39 and 49 of the Parsi
Marriage and Divorce Act, 1936, Sections 36 and 38 of the Special Marriage Act,
1954 and Sections 24 and 26 of the Hindu Marriage Act, 1955 do not contain any
time limit for disposal of applications for alimony pendente lite or the
maintenance and education of minor children. More than 670 cases are understood
to be pending in various High Courts under Section 24 of the Hindu Marriage
Act, 1955. 3. ????As
part of the judicial reforms process, it is proposed to make necessary
amendments in the enactments mentioned in Paragraph 2 with a view to making
provisions that an application for alimony pendente lite or the maintenance and
education of minor children shall be disposed of within sixty days from the
date of service of notice on the respondent. 4. ????The
Bill seeks to achieve the above object. I. PRELIMINARY This
Act may be called the [3]
[* * *] Divorce Act, and shall come into operation on the first day of April,
1869. [4] [This Act extends to [5]
[the whole of India [6]
[except the State of Jammu and Kashmir[7]]].] Extent
of power to grant relief generally. [8] [Nothing hereinafter contained shall
authorise any Court to grant any relief under this Act except where the
petitioner [9] [or respondent] professes the
Christian religion, and to make decrees of dissolution. or to make decrees of
dissolution of marriage except where the parties to the marriage are domiciled
in India at the time when the petition is presented, or of nullity. or to make
decrees of nullity of marriage except where the marriage has been solemnized in
India and the petitioner is resident in India 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 India at the time of presenting the petition.] In
this Act, unless there be something repugnant in the subject or context, [10] [(1) ?High Court?. ?High Court? means with
reference to any area, (a)
in a
State, the High Court for that State; [11] [(b) in Delhi, the High Court of Delhi; (bb) in Himachal Pradesh, the High Court of
Punjab & Haryana up to and inclusive of the 30th April, 1967 and the High
Court of Delhi thereafter;] (c) ??in
Manipur and Tripura, the High Court of Assam; (d) ??in
the Andaman and Nicobar Islands, the High Court at Calcutta; (e) ??in
the Laccadive, Minicoy and Amindivi Islands, the High Court of Kerala; [12] [(ee) in Chandigarh, the High Court of
Punjab and Haryana;] 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 : ] [13] [(2) ?District Judge?. ?District Judge?
means a Judge of a principal civil court of original jurisdiction however
designated : ] (3) ???District
Court?. ?District Court? means, in the case of any petition under this Act, the
Court of the District Judge within the local limits of whose ordinary
jurisdiction, or of whose jurisdiction under this Act [14] [the marriage was solemnized or], 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?. [15] [* * *] (7)?? ??Bigamy with adultery?. [16] [* * *] (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 [17] [India] 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 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 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. 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. All
suits and proceedings in cause 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. [18] [* * *] 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. 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 (1)
Any
marriage solemnised, whether before or after the commencement of the Indian
Divorce (Amendment) Act, 2001, may, on a petition presented to the District
Court either by the husband or the wife, be dissolved on the ground that since
the solemnisation of the marriage, the respondent (i)
has
committed adultery; or (ii)
has
ceased to be Christian by conversion to another religion; or (iii) has been incurably of unsound mind for a
continuous period of not less than two years immediately preceding the
presentation of the petition; or (iv)
[20] [* * *] (v)
has,
for a period of not less than two years immediately preceding the presentation
of the petition, been suffering from venereal disease in a communicable form;
or (vi)
has
not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had
been alive; or (vii) has wilfully refused to consummate the
marriage and the marriage has not therefore been consummated; or (viii) has failed to comply with a decree for
restitution of conjugal rights for a period of two years or upwards after the
passing of the decree against the respondent; or (ix)
has
deserted the petitioner for at least two years immediately preceding the
presentation of the petition; or (x)
has
treated the petitioner with such cruelty as to cause a reasonable apprehension
in the mind of the petitioner that it would be harmful or injurious for the
petitioner to live with the respondent. (2)
A wife
may also present a petition for the dissolution of her marriage on the ground
that the husband has, since the solemnization of the marriage, been guilty of
rape, sodomy or bestiality.] STATE AMENDMENTS UTTAR
PRADESH. In
Section 10 (prior to substitution by Act 51 of 2001), the words ?or to the High
Court?, wherever occurring in the section, shall be omitted. U.P. Act XXX
of 1957, S. 2 and Sch. (1)
Subject
to the provisions of this Act and the rules made thereunder, a petition for
dissolution of marriage may be presented to the District Court by both the
parties to a marriage together, whether such marriage was solemnized before or
after the commencement of the Indian Divorce (Amendment) Act, 2001, on the
ground that they have been living separately for a period of two years or more,
that they have not been able to live together and they have mutually agreed
that the marriage should be dissolved. (2)
On the
motion of both the parties made not earlier than six months after the date of
presentation of the petition referred to in sub-section (1) and not later than
eighteen months after the said date, if the petition is not withdrawn by both
the parties in the meantime, the Court shall, on being satisfied, after hearing
the parties and making such inquiry, as it thinks fit, that a marriage has been
solemnised and that the averments in the petition are true, pass a decree
declaring the marriage to be dissolved with effect from the date of decree.] On a
petition for dissolution of marriage presented by a husband or wife on the
ground of adultery, the petitioner shall make the alleged adulterer or
adulteress a co-respondent, unless the petitioner is excused by the Court from
so doing on any of the following grounds, namely: (a)
that
the wife, being the respondent is leading the life of a prostitute or the
husband, being respondent is leading an immoral life and that the petitioner
knows of no person with whom the adultery has been committed; (b)
that
the name of the alleged adulterer or adulteress is unknown to the petitioner
although the petitioner has made due efforts to discover it; (c)
that
the alleged adulterer or adulteress is dead.] 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. In
case the Court, on the evidence in relation to any such petition, is satisfied
that the petitioner's case has not been proved, or is not satisfied that the
alleged adultery has been committed, or finds that the petitioner has, during
the marriage, been accessory to, or conniving at, the going through of the said
form of marriage, or the adultery of the other party to the marriage, or has
condoned the adultery complained of, or that the petition is presented or
prosecuted in collusion with either of the respondents, then and in any of the
said cases the Court shall dismiss the petition. [23] [* * *] STATE AMENDMENTS UTTAR
PRADESH. In
Section 13, the last paragraph, namely, ?when a petition is dismissed by a
District Court under this section, the petitioner may, nevertheless, present a
similar petition to the High Court? shall be omitted. U.P. Act XXX of
1957, S. 2 and Sch. 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 petitioner is presented or prosecuted in
collusion with either of the respondents, the Court shall pronounce a decree
declaring such marriage to be dissolved [24]
[* * *]: Provided
that the Court shall not be bound to pronounce such decree if it finds that the
petitioner has, during the marriage, been guilty of adultery, or if the
petitioner has, in the opinion of the Court, been guilty of unreasonable delay
in presenting or prosecuting such petition, or of cruelty towards the other
party to the marriage, or of having deserted or wilfully separated himself or
herself from the other party before the adultery complained of, and without
reasonable excuse, or of such wilful neglect or misconduct of or towards the
other party as has conduced to the adultery. 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. In any
suit instituted for dissolution of marriage, if the respondent opposes the
relief sought on the ground, in case of such suit instituted by a husband, of
his adultery, cruelty, or desertion [25]
[* * *] or, in case of such suit instituted by a wife, on the ground of her
adultery [26] [or cruelty or desertion],
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 [27]
[adultery,] cruelty or desertion. Every
decree for a dissolution of marriage made by a High Court [28]
[* * *], 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 that period any person shall be at liberty, in such manner as the High
Court by general or special order from time to time directs, to show cause why
the said decree should not be made absolute by reason of the same having been
obtained by collusion or by reason of material facts not being brought before
the Court. On
cause being so shown, the Court shall deal with the case by making the decree
absolute, or by reversing the decree nisi, or by requiring further inquiry,
or otherwise as justice may demand. The
High Court may order the costs of Counsel and witnesses and otherwise arising
from such cause being shown, to be paid by the parties or such one or more of
them as it thinks fit, including a wife if she have separate property. Whenever
a decree nisi has been made, and the petitioner fails, within a
reasonable time, to move to have such decree made absolute, the High Court may
dismiss the suit. STATE AMENDMENTS UTTAR
PRADESH. In
Section 16 (1)
In the
first paragraph the words ?made by a High Court, not being a confirmation of a
decree of a District Court? and ?or special? shall be omitted. (2)
In the
second paragraph the words ?or special? occurring between the words ?General?
and ?Order?, shall be omitted. (3)
In the
fourth and fifth paragraphs for the words ?High Court?, the word ?Court? shall
be substituted. U.P. Act XXX of 1957, S. 2 and Sch. 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 Court shall
thereupon, if it 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.] STATE AMENDMENTS UTTAR
PRADESH. In
Section 17 (prior to substitution by Act 51 of 2001) (1)
Paragraph
one to five shall be omitted. (2)
In
paragraph six the words ?or special? occurring between the words ?general? and
?order?, shall be omitted. U.P. Act XXX of 1957, S. 2 and Sch. [30] [* * *] [31] [* * *] IV. NULLITY OF MARRIAGE Any
husband or wife may present a petition to the District Court [32]
[* * *], praying that his or her marriage may be declared null and void. STATE AMENDMENTS UTTAR
PRADESH. In
Section 18, for the words ?District or to the High Court?, the words ?District
Court? shall be substituted. U.P. Act XXX of 1957, S. 2 and Sch. Such
decree may be made on any of the following grounds: (1)
that
the respondent was impotent at the time of the marriage and at the time of the
institution of the suit; (2)
that
the parties are within the prohibited degrees of consanguinity (whether natural
or legal) or affinity; (3)
that
either party was a lunatic or idiot at the time of the marriage; (4)
that
the former husband or wife of either party was living at the time of the
marriage, and the marriage with such former husband or wife was then in force. Nothing
in this section shall affect the jurisdiction of the [33]
[District] Court to make decrees of nullity of marriage on the ground that the
consent of either party was obtained by force or fraud. STATE AMENDMENTS UTTAR
PRADESH. In
Section 19, in the last paragraph for the words ?High Court? the word ?Court?
shall be substituted. U.P. Act XXX of 1957, S. 2 and Sch. [34] [* * *] STATE AMENDMENTS UTTAR
PRADESH. Section
20 shall be deleted. U.P. Act XXX of 1957, S. 2 and Sch. 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 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 [35]
[* * *] 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. 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 [36]
[* * *]; 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. STATE AMENDMENTS UTTAR
PRADESH. In
Section 23, the words ?or the High Court? shall be omitted. U.P. Act XXX
of 1957, S. 2 and Sch. 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. In
every case of a judicial separation under this Act, the wife shall, whilst so
separated, be considered as an unmarried woman for the purposes of contract,
and wrongs and injuries, and suing and being sued in any civil proceeding; and
her husband shall not be liable in respect of any contract, act or costs
entered into, done, omitted or incurred by her during the separation: Provided
that where, upon any such judicial separation, alimony has been decreed or
ordered to be paid to the wife, and the same is not duly paid by the husband,
he shall be liable for necessaries supplied for her use: Provided
also that nothing shall prevent the wife from joining, at any time during such
separation, in the exercise of any joint power given to herself and her
husband. Reversal of Decree of Separation 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 Any
wife to whom Section 4 of the Indian Succession Act, 1865 [37]
(10 of 1865), does not apply, may, when deserted by her husband, present a
petition to the District Court [38]
[* * *], 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. STATE AMENDMENTS UTTAR
PRADESH. In
Section 27, the words ?or the High Court? shall be omitted. U.P. Act XXX
of 1957, S. 2 and Sch. 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. 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. 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. 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 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 [39]
[* * *], 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. STATE AMENDMENTS UTTAR
PRADESH. In
Section 32, the words ?or the High Court? shall be omitted. U.P. Act XXX
of 1957, S. 2 and Sch. 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 [40] [* * *]. STATE AMENDMENTS UTTAR
PRADESH. In
Section 34, the words ?or the High Court? shall be omitted. U.P. Act XXX
of 1957, S. 2 and Sch. [41] [* * *] IX. ALIMONY 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 [42]
[expenses of the proceedings and] 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 [43]
[the expenses of the proceedings and] alimony pending the suit as it may deem
just: [44] [* * *]: [45] [Provided further that the petition for the
expenses of the proceedings and alimony pending the suit shall, as far as
possible, be disposed of within sixty days of service of such petition on the
husband.] [46] [Where a decree of dissolution of the
marriage or a decree of judicial separation is obtained by the wife, the
District Court may 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. STATE AMENDMENTS UTTAR
PRADESH. In
Section 37 (1)
For
the words ?High Court? the word ?Court? shall be substituted. (2)
The
second paragraph namely, ?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,? shall be omitted.
U.P. Act XXX of 1957, S. 2 and Sch. 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 [47] [* * *] [48] [The District Court may, before passing a
decree for dissolution of the marriage or a decree of nullity of marriage,
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. STATE AMENDMENTS UTTAR
PRADESH. In
Section 40 (1)
For
the words ?High Court? the word ?Court? shall be substituted. (2)
The second
paragraph namely, ?and the District Court, after its decree for dissolution of
marriage or of nullity of marriage has been confirmed,? shall be omitted. U.P.
Act XXX of 1957, S. 2 and Sch. XI. CUSTODY OF CHILDREN 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: [49] [Provided that the application with respect
to the maintenance and education of the minor children pending the suit shall,
as far as possible, be disposed of within sixty days from the date of service
of notice on the respondent.] 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. [50] [In any suit for obtaining a dissolution of
marriage or a decree of nullity of marriage instituted in a District Court, the
Court may from time to time before making its decree, make such interim orders
as it may deem 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. STATE AMENDMENTS UTTAR
PRADESH. In
Section 43 (1)
In the
first paragraph the words ?instituted in, or removed to a High Court? shall
be omitted. (2)
The
second paragraph shall be omitted. (3)
In the
third paragraph for the words ?High Court or District Court (as the case may
be)? the word ?Court? shall be substituted. U.P. Act XXX of 1957, S. 2 and
Sch. [51] [Where a decree of dissolution or nullity of
marriage has been passed, the District Court 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. STATE AMENDMENTS UTTAR
PRADESH. In
Section 44 (1)
In the
first paragraph for the words ?High Court? the word ?Court? shall
be substituted. (2)
The
second paragraph, i.e. the words ?and the District Court, after a decree for dissolution
of marriage or of nullity of marriage has been confirmed? shall
be omitted. U.P. Act XXX of 1957, S. 2 and Sch. XII. PROCEDURE Subject
to the provisions herein contained, all proceedings under this Act between
party and party shall be regulated by the Code of Civil Procedure, [52]
[1908]. 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. Every
petition under this Act for a decree of dissolution of marriage, or of nullity
of marriage, or of judicial separation [53]
[* * *] shall [54]
[* * *] 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. 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. Where
the petitioner is a minor, he or she shall sue by his or her next friend to be
approved by the Court; and no petition presented by a minor under this Act
shall be filed until the next friend has undertaken in writing to be answerable
for costs. Such
undertaking [55]
[* * *] 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. Every
petition under this Act shall be served on the party to be affected thereby,
either within or without [56]
[India], 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 altogether in case it deems
necessary or expedient so to do. STATE AMENDMENTS UTTAR
PRADESH. In
Section 50, for the words ?High Court by general or special order from time to
time directs?, the words ?Court may direct? shall be substituted. U.P. Act
XXX of 1957, S. 2 and Sch. 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. On any
petition presented [57]
[by a husband or a wife, praying that his or her marriage may be dissolved by
reason of his wife or her husband, as the case may be, having been guilty of
adultery, cruelty or desertion], the husband and wife respectively shall be
competent and compellable to give evidence of or relating to such cruelty or
desertion. The
whole or any part of any proceeding under this Act may be heard, if the Court
thinks fit, with closed doors. 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. 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. [58] [* * *] No
appeal as to costs. Provided [59]
[shall be] that there shall be no appeal on the subject of costs only. STATE AMENDMENTS UTTAR
PRADESH. In
Section 55 (1)
The
first proviso shall be omitted. (2)
In the
second proviso, the word ?also? shall be omitted. U.P. Act XXX of 1957, S.
2 and Sch. Any
person may appeal to [60]
[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 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 to [61]
[the Supreme Court]. XIII. RE-MARRIAGE Where
a decree for dissolution or nullity of marriage has been passed and either the
time for appeal has expired without an appeal having been presented to any
court including the Supreme Court or an appeal has been presented but has been
dismissed and the decree or dismissal has become final, it shall be lawful for
either party to the marriage to marry again.] STATE AMENDMENTS UTTAR
PRADESH. In
Section 57, for the existing section, the following shall be substituted: ?57. Liberty
to parties to marry again. When six months after the date of any decree
absolute dissolving a marriage have expired, and no appeal has been presented
against such decree, 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.? U.P. Act XXX of
1957, S. 2 and Sch. No
clergyman in Holy Orders of the [63]
[* * *] Church of England [64]
[* * *] 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 solemnising or refusing to solemnize
the marriage of any such person. When
any Minister of any Church or Chapel of the said [65]
[* * *] 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 Every
decree for judicial separation or order to protect property, obtained by a wife
under this Act shall, until reversed or discharged, be deemed valid, so far as
necessary, for the protection of any person dealing with the wife. No
reversal, discharge or variation of such decree or order shall affect any
rights or remedies which any person would otherwise have had in respect of any
contracts or acts of the wife entered into or done between the dates of such
decree or order, and of the reversal, discharge or variation thereof. Indemnity
of persons making payment to wife without notice of reversal of decree or
protection-order. All
persons who in reliance on any such decree or order make any payment to, or
permit any transfer or act to be made or done by, the wife who has obtained the
same shall, notwithstanding such decree or order may then have been reversed,
discharged or varied, or the separation of the wife from her husband may have
ceased, or at some time since the making of the decree or order been
discontinued, be protected and indemnified as if, at the time of such payment,
transfer or other act, such decree or order were valid and still subsisting
without variation, and the separation had not ceased or been discontinued, unless,
at the time of the payment, transfer or other act, such persons had notice of
the reversal, discharge or variation of the decree or order or of the cessation
or discontinuance of the separation. 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. 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 [66]
[, 1908]. All
such rules, alterations and additions shall be published in the Official
Gazette. SCHEDULE OF FORMS No. 1. Petition
by husband for a dissolution of marriage with damages against co-respondent, by
reason of adultery. (See Sections 10 and 34) In the
(High) Court of ????????? To the
Hon'ble Mr. Justice ?????????????????????????.. [or To the Judge of]
?????????????.. The
????????? day of ???????? 20??? The
petition of A.B. of?????????????. Sheweth, 1.
That your petitioner was on the ???????? day
of ?????? 20 ?????? was lawfully married to C.B., then C.D., spinster
at ????????? (a). 2.
That from his said marriage, your petitioner
lived and cohabited with his said wife at ????????? and at????????? in
????????? and lastly at ?????????, in ??????, and that your petitioner and his
said wife have had issue of their said marriage five children, of
whom two sons only survive, aged respectively twelve and fourteen years. 3.
That during the three years
immediately preceding the ?????????day of ????????? 20 ????? X.Y. was
constantly, with a few exceptions, residing in the house of your petitioner at
????????? aforesaid, and that on divers occasions during the said period, the
dates of which are unknown to your petitioner, the said C.B. in your
petitioner's said house committed adultery with the said X.Y. 4.
That no collusion or connivance exists
between me and my said wife for the purpose of obtaining a dissolution of our
said marriage or for any other purpose. Your
petitioner, therefore, prays that this (Hon'ble) Court will decree a
dissolution of the said marriage, and that the said X.Y. do pay the
sum of rupees 5,000 as damages by reason of his having committed adultery with
your petitioner's said wife, such damages to be paid to your petitioner, or
otherwise paid or applied as to this (Hon'ble) Court seems fit. (Signed) A.B.(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. (a)
If the marriage was solemnized out of India,
the adultery must be shown to have been committed in India. (b)
The petition must be signed by the
petitioner. STATE AMENDMENTS UTTAR PRADESH. In
Form 1 (i)
the words and the brackets ?(High)? and ?(or
to the Judge of)?, and the words ?To the Hon'ble Mr. Justice? shall
be omitted. (ii)
the word and brackets ?(Hon'ble)? wherever
occurring, shall be omitted. U.P. Act XXX of 1957, S. 2 and Sch. No. 2. Respondent's statement in answer to
No. 1. In the
Court of ????????? The?????????day
of ????????? Between A.B.,
petitioner, C.B., respondent, and X.Y., co-respondent. C.B.,
the respondent, by, D.E., her attorney (or vakil) in answer to the
petition of A.B., says that she denies that she has on divers or any
occasions committed adultery with X.Y., as alleged in the third paragraph
of the said petition. Wherefore
the respondent prays that this (Hon'ble) Court will reject the said petition. (Signed) C.B. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 2, the word and the brackets ?(Hon'ble)? shall be omitted. U.P.
Act 30 of 1957, S. 2 and Sch. No. 3. Co-respondent's statement in answer to
No. 1 In the
(High) Court of ????????? The?????????day
of ????????? Between A.B.,
petitioner, C.B., respondent, and X.Y., co-respondent. X.Y.,
the co-respondent, in answer to the petition filed in this cause, saith that he
denies that he committed adultery with the said C.B. as alleged in
the said petition. Wherefore
the said X.Y. prays that this (Hon'ble) Court will reject the prayer
of the said petitioner and order him to pay the costs of and incident to the
said petition. (Signed) X .Y. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 3, the words and brackets ?(High)? and ?(Hon'ble)? shall
be omitted. U.P. Act XXX of 1957, S. 2 and Sch. No. 4. Petition for Decree of Nullity of
Marriage (See Section 18) In the
(High) Court of ????????? To the
Hon'ble Mr Justice ????????? [or To the Judge of ?????????] The
?????????day of ????????? 20 ????. The
petition of A.B. falsely called A.D., Sheweth, 1.
That on the ?????????day of ?????????, your
petitioner, then a spinster, eighteen years of age, was married in fact, though
not in law, to C.D., then a bachelor of about thirty years of age, at
[some place in India]. 2.
That from the said ?????????day of ?????????,
until the month of ?????????, your petitioner lived and cohabited with the
said C.D., at divers places, and particularly at ???????? aforesaid. 3.
That the said C.D. has never consummated
the said pretended marriage by carnal copulation. 4.
That at the time of the celebration of your
petitioner's said pretended marriage, the said C.D. was, by reason of
his impotency or malformation, legally incompetent to enter into the contract of
marriage. 5.
That there is no collusion or connivance
between her and the said C.D. with respect to the subject of this
suit. Your
petitioner therefore prays that this (Hon'ble) Court will declare that the said
marriage is null and void. (Signed) A.B. Form of Verification : See No. 1 STATE AMENDMENTS UTTAR PRADESH. In
Form No. 4, the words and the brackets ?(High)?, ?(or to the Judge of)?. and
?(Hon'ble)? and the words ?To the Hon'ble Mr. Justice? shall be omitted. U.P.
Act XXX of 1957, S. 2 and Sch. No. 5. Petition by wife for judicial
separation on the ground of her husband's adultery (See Section 22) In the
(High) Court of ????????? To the
Hon'ble Mr. Justice????????? [or to the Judge of ?????????] The
????????? day of ????????? 20 ????? The petition
of C.B., of ????????? the wife of A.B. Sheweth, 1.
That on the ????????? day of ????????? your
petitioner, then C.D., was lawfully married to A.B., at the Church
of?????????, in the ????????? 2.
That after her said marriage, your petitioner
cohabited with the said A.B. at ????????? and at, ????????? and that
your petitioner and her said husband have issue living of their said
marriage, three children, to wit, etc., etc., (a). 3.
That on divers occasions in or about the
months of August, September and October ???????. the
said A.B., at ????????? aforesaid, committed adultery with E.F., who
was then living in the service of the said A.B. and your petitioner
at their said residence ????????? aforesaid. 4.
That on divers occasions in the months
of October, November and December????????? the said A.B.,
at ????????? aforesaid, committed adultery with G.H., who was then living
in the service of the said A.B. and your petitioner at their said
residence?????????aforesaid. 5.
That no collusion or connivance exists
between your petitioner and the said A.B. with respect to the subject
of the present suit. Your
petitioner therefore prays that this (Hon'ble) Court will decree a judicial
separation to your petitioner from her said husband by reason of his aforesaid
adultery. (Signed) C.B.(b) Form of Verification : See No. 1 (a)
State the respective ages of the children. (b)
The petition must be signed by the
petitioner. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 5, the words and the brackets ?(High)?, ?(or to the Judge of)?. and
?(Hon'ble)? and the words ?To the Hon'ble Mr. Justice? shall be omitted. U.P.
Act 30 of 1957, S. 2 and Sch. In the
(High) Court of ????????? B.
against B. The?????????day
of ????????? The
respondent, A.B. by W.Y., his attorney [or vakil] saith, 1.
That he denies that he committed adultery
with E. F., as in the third paragraph of the petition alleged. 2.
That the petitioner condoned the said adultery
with E.F., if any. 3.
That he denies that he committed adultery
with G.H., as in the fourth paragraph of the petition alleged. 4.
That the petitioner condoned the said
adultery with G.H., if any. Wherefore
this respondent prays that this (Hon'ble) Court will reject the prayer of the
said petition. (Signed)A.B. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 6, the words and the brackets ?(High)? and ?(Hon'ble)? shall
be omitted. U.P. Act 30 of 1957, S. 2 and Sch. No. 7. Statement in reply to No. 6 In the
(High) Court of ????????? B.
against B The
????????? day of ????????? The
petitioner, C.B., by her attorney [or vakil], says (1)
That she denies that she condoned the said
adultery of the respondent with E. F., as in the second paragraph of the
statement in answer alleged. (2)
That even if she had condoned the said
adultery, the same has been revived by the subsequent adultery of the
respondent with G. H., as set forth in the fourth paragraph of the
petition. (Signed) C.B. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 7, the words and the brackets ?(High)? shall be omitted. U.P. Act
XXX of 1957, S. 2 and Sch. (See Section 22) In the
(High) Court of ????????? To the
Hon'ble Mr. Justice ????????? [or To the Judge of ?????????]. The
????????? day of ????????? 20 ???? The
petition of A.B. (wife of C.B.) of ????????? Sheweth, 1.
That on the ????????? day of ?????????, your
petitioner, then A.D., spinster, was lawfully married to C.B., at
????????? 2.
That from her said marriage, your petitioner
lived and cohabited with her said husband at ????.. until the ????????? day of
?????????, when your petitioner separated from her said husband as hereinafter
more particularly mentioned, and that your petitioner and her said husband have
had no issue of their said marriage. 3.
That from and shortly after your petitioner's
said marriage, the said C.B. habitually conducted himself towards
your petitioner with great harshness and cruelty, frequently abusing her in the
coarsest and most insulting language, and beating her with his fists, with a
cane, or with some other weapon. 4.
That on an evening in or about the month of
?????????, the said C.B. in the highway and opposite to the house in
which your petitioner and the said C.B. were then residing at
????????? aforesaid, endeavoured to knock your petitioner down, and was only
prevented from so doing by the interference of F.D., your petitioner's
brother. 5.
That subsequently on the same evening, the
said C.B., in his said house at ????????? aforesaid, struck your
petitioner with his clenched fists a violent blow on her face. 6.
That on one Friday night in the month of
?????????, the said C.B., in ????????? without provocation, threw a knife
at your petitioner, thereby inflicting a severe wound on her right hand. 7.
That on the afternoon of the ????????? day of
?????????, your petitioner, by reason of the great and continued cruelty
practised towards her by her said husband, with assistance withdrew from the
house of her said husband to the house of her father at ?????????, that from
and after the said ?????????day of ?????????, your petitioner hath lived
separate and apart from her said husband, and hath never returned to his house
or to cohabitation with him. 8.
That there is no collusion or connivance
between your petitioner and her said husband with respect to the subject of the
present suit. Your
petitioner, therefore, prays that this (Hon'ble) Court will decree a judicial
separation between your petitioner and the said C.B., and also order that
the said C.B., do pay the costs of and incident to these proceedings. (Signed) A.B. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 8, the words and the brackets ?(High)?, ?(Hon'ble)? and ?(or to the
Judge of)? and the words ?To the Hon'ble Mr. Justice? shall be omitted. U.P.
Act 30 of 1957, S. 2 and Sch. In the
(High) Court of ????????? The
????????? day of ????????? Between
A. B., petitioner, and C. B.,
respondent. C.B.,
the respondent, in answer to the petition filed in this cause
by W.J. his attorney [or vakil] saith that he denies that he has
been guilty of cruelty towards the said A.B., as alleged in the said
petition. (Signed) C. B. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 9, the word and the brackets ?(High)? shall be omitted. U.P. Act
XXX of 1957, S. 2 and Sch. (See Section 24) In the
(High) Court of ????????? To the
Hon'ble Mr Justice????????? [or To the Judge of ?????????] The
????????? day of ????????? 20 ??????.. The
petition of A. B., of ????????? Sheweth, 1.
That your petitioner was on the ?????? day of
?????.. lawfully married to ????????? 2.
That on the ????????? day of?????????, this
(Hon'ble) Court at the petition of ?????????, pronounced a decree affecting the
petitioner to the effect following, to wit, [Here set out the decree.] 3.
That such decree was obtained in the absence
of your petitioner, who was then residing at ????. [State
facts tending to show that the petitioner did not know of the proceedings; and,
further, that had he known he might have offered a sufficient defence.] or That
there was reasonable ground for your petitioner leaving his said wife, for that
his said wife ??? [Here
state any legal grounds justifying the petitioner's separation from his wife.] Your
petitioner, therefore, prays that this (Hon'ble) Court will reverse the said
decree. (Signed) A. B. Form of Verification : See No. 1 STATE AMENDMENTS UTTAR PRADESH. In
Form No. 10, the words and the brackets ?(High)?, ?(or to the Judge of)? and
?(Hon'ble)? and the words ?To the Hon'ble Mr. Justice? shall be omitted. U.P.
Act 30 of 1957, S. 2 and Sch. No. 11. Petition for Protection-order (See Section 27) In the
(High) Court of ????????? To the
Hon'ble Mr. Justice????????? [or to the Judge of ?????????] The
day of ????????? 20, ???? The
petition of C. B., of the wife of A. B. Sheweth, That
on the ????????? day of ????????? she was lawfully married to A.B., at
?????? That
she lived and cohabited with the said A.B. for ????????? years
at?????????, and also at ?????????, and hath had ????????? children, issue of
her said marriage, of whom ????????? are now living with the applicant, and
wholly dependent upon her earnings. That
on or about?????????, the said A.B., without any reasonable cause,
deserted the applicant, and hath ever since remained separate and apart from
her. That
since the desertion of her said husband, the applicant hath maintained herself
by her own industry [or on her own property, as the case may be], and
that thereby and otherwise acquired certain property consisting of ?????????
[here state generally the nature of the property]. Wherefore
she prays an order for the protection of her earnings and property acquired
since the said, ?????? day of?????.., from the said A.B., and from all
creditors and persons claiming under him. (Signed) C.B. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 11, the words and the brackets ?(High)? and ?(or to the Judge of)? and
words ?To the Hon'ble Mr Justice? shall be omitted. U.P. Act XXX of 1957,
S. 2 and Sch. (See Section 36) In the
(High) Court of ????????? B.
against B To the
Hon'ble Mr Justice ????????? [or To the Judge of ?????????] The
????????? day of 20 ????.. The
petition of C.B., the lawful wife of A.B. Sheweth, 1.
That the said A.B. has for some
years carried on the business of ?????????, at ???????., and from such business
derives the nett annual income of from Rs ????????? to ?????????. 2.
That the said A.B. is possessed of
plate, furniture, linen and other effects at his said house ?????????,
aforesaid, all of which he acquired in right of your petitioner as his wife, or
purchased with money he acquired through her, of the value of Rs 10,000. 3.
That the said A.B. is entitled,
under the will of his father, subject to the life interest of his mother
therein, to property of the value of Rs 5000 or some other considerable amount.
(a) Your petitioner, therefore, prays that this (Hon'ble) Court will decree
such sum or sums of money by way of alimony, pending the suit, as to this
(Hon'ble) Court may seem meet. (Signed) C.B. Form of Verification : See No. 1 (a)
The Petitioner should state her husband's
income as accurately as possible. UTTAR PRADESH. In
Form No. 12, the words and the brackets ?(High)?, ?(or to the Judge of)? and
?(Hon'ble)? and the words ?To the Hon'ble Mr. Justice? shall be omitted. U.P.
Act XXX of 1957, S. 2 and Sch. In the
(High) Court of ????????? B.
against B A.B. of
?????????, the above-named respondent, in answer ????????? to the petition for
alimony, pending the suit, of C.B., says 1.
In answer to the first paragraph of the said
petition, I say that I have for the last ????????? years carried, on the
business of ?????????, at ?????????, and that, from such business, I have
derived a nett annual income of Rs 900, but less than Rs 1000. 2.
In answer to the second paragraph of the said
petition, I say that I am possessed of plate, furniture, linen and other
chattels and effects at my said house ????????? aforesaid, of the value of Rs
7000, but as I verily believe of no larger value. And I say that a portion of
the said plate, furniture and other chattels and effects of the value of Rs
1500, belonged to my said wife before our marriage, but the remaining portions
thereof I have since purchased with my own monies. And I say that, save as
hereinbefore set forth, I am not possessed of the plate and other effects as
alleged in the said paragraph in the said petition, and that I did not acquire
the same as in the said petition also mentioned. 3.
I admit that I am entitled under the will of
my father, subject to the life-interest of my mother therein, to property of
the value of Rs 5000, that is to say, I shall be entitled under my said
father's will, upon the death of my mother, to a legacy of Rs 7000, out of
which I shall, have to pay to my father's executors the sum of Rs 2000 the
amount of a debt owing by me to his estate, and upon which debt I am now paying
interest at the rate of five per cent per annum. 4.
And, in further answer to the said petition,
I say that I have no income whatever except that derived from my aforesaid
business, that such income, since my said wife left me, which she did on the
????????? day of ????????? last, has been considerably diminished, and that
such diminution is likely to continue. And I say that out of my said income, I
have to pay the annual sum of Rs 100 for such interest as aforesaid to my late
father's executors, and also to support myself and my two eldest children. 5.
And, in further answer to the said petition, I
say that, when my wife left, my dwelling-house on the ????????? day of
????????? last, she took with her, and has ever since withheld and still
withholds from me, plate, watches and other effects in the second paragraph of
this my answer mentioned, of the value of, as I verily believe, Rs 800 at the
least; and I also say that, within five days of her departure from my house as
aforesaid, my said wife received bills due to me from certain lodgers of mine,
amounting in the aggregate to Rs?????????, and that she has ever since withheld
and still withholds from me the same sum. (Signed) A. B. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 13, the word and brackets ?(High)? shall be omitted. U.P. Act XXX
of 1957, S. 2 and Sch. (See Section 49) In the
(High) Court of ????????? I, the
undersigned A. B., of ????????? being the next friend
of C.D. who is a minor, and who is desirous of filing a petition in
this Court, under the Indian Divorce Act, against D.D. of ?????????,
hereby undertake to be responsible for the costs of the said D.D. in
such suit, and that, if the said C.D. fail to pay to the
said D.D. when and in such manner as the Court shall order all such
costs of such suit as the Court shall direct him [or her] to pay to the
said D.D., I will forthwith pay the same to the proper officer of this
Court. Dated
this ????????? day of ????????? 20 ????. (Signed) A. B. STATE AMENDMENTS UTTAR PRADESH. In
Form No. 14, the word and brackets ?(High)? shall be omitted. U.P. Act XXX
of 1957, S. 2 and Sch. [1] 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, ibid., 1863,
Supplement, p. 43, and Gazette of India, 1869, Supplement, p. 291. [2] The
words ?in India? omitted by Act 3 of 1951, S. 3 and Sch. [3] The
word ?Indian? omitted by Act 51 of 2001, S. 2 (w.e.f. 3-10-2001). [4] Subs.
by A.O. 1948. [5] Subs.
by A.O. 1950. [6] Subs.
by Act 3 of 1951, S. 3 and Sch., for ?except Part B States?. [7] Now
made applicable to the Union Territory of Jammu and Kashmir and the Union
Territory of Ladakh. [Vide S.O. 3912(E), dt. 30-10-2019 (w.e.f. 31-10-2019)]. [8] Subs.
by Act 25 of 1926, S. 2. [9] Ins.
by Act 30 of 1927, S. 2. [10] Subs.
by A.O. (No. 2) 1956. [11] Subs.
by the Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects)
Order, 1968, for sub-clause (b) (w.e.f. 1-11-1966). [12] Ins.
by the Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and
Concurrent Subjects) Order, 1968 (w.e.f. 1-11-1966). [13] Subs.
by A.O. 1950. [14] Ins.
by Act 51 of 2001, S. 3 (w.e.f. 3-10-2001). [15]
Omitted by Act 51 of 2001, S. 3 (w.e.f. 3-10-2001). Prior to omission it read
as: ?(6) Incestuous adultery ?Incestuous adultery? means
adultery committed by a husband with a woman with whom, if his wife were dead,
he could not lawfully contract marriage by reason of her being within the
prohibited degrees of consanguinity (whether natural or legal) or affinity:? [16]
Omitted by Act 51 of 2001, S. 3 (w.e.f. 3-10-2001). Prior to omission it read
as: ?(7) Bigamy with adultery. ?Bigamy with adultery? means
adultery with the same woman with whom the bigamy was committed:? [17] Subs.
by A.O. 1950, for ?the dominions of Her Majesty?. [18]
Omitted by Act 51 of 2001, S. 4 (w.e.f. 3-10-2001). Prior to omission it read
as: ?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 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 gives
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 to relief is founded.?. [19] Subs.
by Act 51 of 2001, S. 5 (w.e.f. 3-10-2001). [20]
Omitted by Act 6 of 2019, S. 2 (w.e.f. 1-3-2019). Prior to omission it read as: ?(iv) has, for a period of not less than two years
immediately preceding the presentation of the petition, been suffering from a
virulent and incurable form of leprosy; or? [21] Ins.
by Act 51 of 2001, S. 6 (w.e.f. 3-10-2001). [22] Subs.
by Act 51 of 2001, S. 7 (w.e.f. 3-10-2001). [23]
Omitted by Act 51 of 2001, S. 8 (w.e.f. 3-10-2001). Prior to omission it read
as: ?When a petition is dismissed by a District Court
under this section, the petitioner may nevertheless, present a similar petition
to the High Court.?. [24] The
words ?in the manner and subject to all the provisions and limitations in
Sections 16 and 17 made and declared? omitted by Act 51 of 2001, S. 9 (w.e.f.
3-10-2001). [25] The
words ?without reasonable excuse? omitted by Act 51 of 2001, S. 10 (w.e.f.
3-10-2001). [26] Subs.
for ?and cruelty? by Act 51 of 2001, S. 10 (w.e.f. 3-10-2001). [27] Ins.
by Act 51 of 2001, S. 10 (w.e.f. 3-10-2001). [28] The
words ?not being a confirmation of a decree of a District Court? omitted by Act
51 of 2001, S. 11 (w.e.f. 3-10-2001). [29] Subs.
by Act 51 of 2001, S. 12 (w.e.f. 3-10-2001). [30]
Section 17-A ins. by Act 15 of 1927 and omitted by Act 51 of 2001, S. 13
(w.e.f. 3-10-2001). Prior to omission it read as: ?17-A. 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 the 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
incidental to or consequential on any exercise of the right.? [31]
Second paragraph omitted by Act 3 of 1951, S. 3 and Sch. Prior to omission it
read as: ?In relation to the jurisdiction of any such High Court
as aforesaid in an Indian State this section shall have effect as if the
reference to the Provincial Government was a reference to the Central
Government.? [32] The
words ?or to the High Court? omitted by Act 51 of 2001, S. 14 (w.e.f.
3-10-2001). [33] Subs.
for ?High? by Act 51 of 2001, S. 15 (w.e.f. 3-10-2001). [34]
Omitted by Act 51 of 2001, S. 16 (w.e.f. 3-10-2001). Prior to omission it read
as: ?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 seventeen,
clauses one, two, three and four, shall mutatis mutandis apply to such
decrees.? [35] The
words ?without reasonable excuse? omitted by Act 51 of 2001, S. 17 (w.e.f.
3-10-2001). [36] The
words ?or the High Court? omitted by Act 51 of 2001, S. 18 (w.e.f. 3-10-2001). [37] See
now the Indian Succession Act, 1925 (39 of 1925). [38] The
words ?or the High Court? omitted by Act 51 of 2001, S. 18 (w.e.f. 3-10-2001). [39] The
words ?or the High Court? omitted by Act 51 of 2001, S. 18 (w.e.f. 3-10-2001). [40]
Omitted by Act 51 of 2001, S. 19 (w.e.f. 3-10-2001). Prior to omission it read
as: ?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.? [41]
Omitted by Act 51 of 2001, S. 20 (w.e.f. 3-10-2001). Prior to omission it read
as: ?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 seventeen, the Court, if it thinks that
the applicant had no grounds for intervening, may order him to pay the whole or
any part of the costs occasioned by the application.? [42] Ins.
by Act 49 of 2001, S. 2. [43] Ins.
by Act 49 of 2001, S. 2. [44]
The proviso omitted by Act 51 of 2001, S. 21 (w.e.f. 3-10-2001). Prior to
omission it read as: ?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.? [45] Ins.
by Act 49 of 2001, S. 2. [46] Subs.
by Act 51 of 2001, S. 22 (w.e.f. 3-10-2001). [47]
Omitted by Act 51 of 2001, S. 23 (w.e.f. 3-10-2001). Prior to omission it read
as: ?39. Power to order settlement of wife's property for
benefit of husband and children. Whenever the Court pronounces a decree of
dissolution of marriage or judicial separation for adultery of the wife, if it
is made to appear to the Court that the wife is entitled to any property the
Court may, if it think fit, order such settlement as it thinks reasonable to be
made of such property or any part thereof, for the benefit of the husband, or
of the children of the marriage, or of both. Any instrument executed pursuant to any order of the
Court at the time of or after the pronouncing of a decree of dissolution of
marriage or judicial separation, shall be deemed valid notwithstanding the
existence of the disability of coverture at the time of the execution thereof. Settlement of damages. The Court may direct that the
whole or any part of the damages recovered under section thirty-four shall be
settled for the benefit of the children of the marriage, or as a provision for
the maintenance of the wife.? [48] Subs.
by Act 51 of 2001, S. 24 (w.e.f. 3-10-2001). [49] Ins.
by Act 49 of 2001, S. 3. [50] Subs.
by Act 51 of 2001, S. 25 (w.e.f. 3-10-2001). [51] Subs.
by Act 51 of 2001, S. 26 (w.e.f. 3-10-2001). [52] Ins.
by Act 51 of 2001, S. 27 (w.e.f. 3-10-2001). [53] 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? repealed by Act
7 of 1870. [54] The
words ?in the first, second and third cases mentioned in this section,?
repealed by Act 7 of 1870. [55] The
words ?shall bear a stamp of eight annas and? repealed by Act 7 of 1870. [56] Subs.
by A.O. 1950, for ?the Provinces? which had been subs. by A.O. 1948, for,
?British India?. [57] Subs.
by Act 51 of 2001, S. 28 (w.e.f. 3-10-2001). [58]
Omitted by Act 51 of 2001, S. 29 (w.e.f. 3-10-2001). Prior to omission it read
as: ?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:? [59] Subs.
for ?also? by Act 51 of 2001, S. 29 (w.e.f. 3-10-2001). [60] Subs.
by A.O. 1950, for ?Her Majesty in Council?. [61] Subs.
by A.O. 1950, for ?Her Majesty in Council?. [62] Subs.
by Act 51 of 2001, S. 30 (w.e.f. 3-10-2001). [63] The
word ?United? repealed by Act 12 of 1873, S. 1 and Sch. [64] The
words ?and Ireland? repealed by Act 12 of 1873, S. 1 and Sch. [65] The
word ?United? repealed by Act 12 of 1873, S. 1 and Sch. [66] Ins.
by Act 51 of 2001, S. 31 (w.e.f. 3-10-2001).Divorce Act, 1869[1]
[Act 4 of 1869 as amended up to Act 6 of 2019]
No. 6. Statement in answer to No. 5
No. 8. Petition for a judicial separation by reason of cruelty
Form of Verification : See No. 1
No. 9. Statement in answer to No. 8
No. 10. Petition for reversal of decree of separation
No. 12. Petition for Alimony pending the suit
STATE AMENDMENTS
No. 13. Statement in answer to No. 12
No. 14. Undertaking by minor's next friend to be answerable for respondent's
costs