JAMMU
AND KASHMIR CHRISTIAN MARRIAGE AND DIVORCE ACT, 1957 [REPEALED] THE JAMMU AND KASHMIR CHRISTIAN MARRIAGE AND DIVORCE ACT, 1957
[REPEALED] [Act No. 3 of 1957] [17th January, 1957] An Act to provide for the solemnization of marriages and for
divorces among persons professing the Christian religion. Be it enacted by the Jammu
and Kashmir State Legislature in the Seventh Year of Republic of India as
follows :- (1)
This Act may be called as the Jammu and Kashmir Christian Marriage
and Divorce Act,1957. (2)
It shall extend to the whole of the Jammu and Kashmir state. In this Act unless
otherwise requires :- (i)
? Bigamy with adultery? means adultery with the same woman with
whom the bigamy was committed; (ii)
? Christian? means a person professing the Christian religion; (iii)
?Church? includes any chapel or other building generally used for
public Christian worship; (iv)
?Church of England ? and ?Anglican? means and apply to the Church
of England as by law established; (v)
?Church of Rome? and ?Roman Catholic? means and apply to the
Church which regards the Pope of Rome as its spiritual head; (vi)
? Church of Scotland ? means the Church of Scotland as by law
established; (vii)
?Desertion? implies an abandonment against the wish of the person
charging it ; and (viii)
? District Court? means the principal Civil Court of original
jurisdiction; (ix)
? 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 degree of consanguinity
(whether natural or legal) or affinity; (x)
?Indian Christian? includes the Christian descendants of natives
of India converted to Christianity, as well as such converts; (xi)
?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 the state or else where; (xii)
?Minor? means a person who has not completed the age of twenty
?one years and who is not a widower or widow; (xiii)
?Minor Children? means in 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 means it means unmarried children who have not completed the age of
eighteen years; (xiv) ?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 administrate
and the date of the death of the testator or interstate shall be deemed to be
the time at which any such wife becomes entitled as executrix or administrator. Every marriage between
persons, one or both of whom is or are a Christian or Christians, shall be
solemnized in accordance with the provisions of the next, following section;
and any such marriage solemnized otherwise than in accordance with such
provisions shall be void. Marriages may be solemnized
in the Jammu and Kashmir state :- (1)
By any person who has received Episcopal ordination, provided that
the marriage be solemnized according to the rules, rites, ceremonies and
customs of the Church of which he is a Minister; (2)
By any clergyman of the Church of Scotland, provided that such
marriage be solemnized according to the rules, rites, ceremonies AND CUSTOMS OF
THE Church of Scotland; (3)
By any Minister of Religion licensed under this Act to solemnize
marriages; (4)
By or in the presence of a Marriage Registrar appointed under this
Act; (5)
By any person licensed under this Act to grant certificates of
marriage between Indian Christians. The Government may, by
notification in the Government Gazette grant licenses to Ministers of Religion
to solemnize marriages within the state as may, by a like notification, revoke
such licenses. (1) For the
purpose of this Act, the Government shall appoint an officer to be the
Registrar general of Christian Marriages for the Jammu and Kashmir state : Provided that the
government may, instead of making such appointment, direct that all or any of
the powers and duties herein after conferred and imposed upon the Registrar
General, shall be exercised and performed by such officers as the Government
appoint in this behalf. When the Marriage Registrar
of the District, is absent from such District or ill, or when his office is
temporarily vacant, the Magistrate of the district shall act as, and be,
Marriage Registrar thereof during such absence, illness or temporary vacancy. The Government may grant a
license to any Christian , either by name or as holding any office for the time
being, authorizing him to grant certificate of marriages between Indian
Christians. Any such license may be
revoked by the authority by which it was granted, and every such grant or
revocation shall be notified in the Government Gazette. Every marriage under this
Act shall be solemnized between the hours of six in the morning and seven in
the evening; Exceptions :- Provided
nothing in this section shall apply to ? (1)
A clergyman of the Church of England solemnizing a marriage under
a special license permitting him to do so at any hour other than between six in
the morning and seven in the evening under the hand and seal of the ?Anglican
Bishop of the Diocese or his Comissionary;or (2)
A clergyman of the Church of the Rome solemnizing the marriage
between the hours of seven in the evening and six in the morning, when he has
received a general or special license in that behalf from the Roman Catholic
Bishop of the Diocese or Vicariate in which such marriage is so solemnized, or
from such person as the same Bishop as authorized to grant such licence ; or (3)
A clergyman of the Church of Scotland solemnizing a marriage
according to the rules, rites, ceremonies and customs of the Church of
Scotland. No clergyman of the Church
of England shall solemnize a marriage in any place other than a Church where
worship is generally held according to the forms of the Church of England,
unless there is no such Church with in five miles distance by the shortest road
from such place , or unless he has received a special license authorizing him
to do so under the hand and seal of the Anglician Bishop of the Diocese or his
Co missionary. When ever a Marriage is
intended to be solemnized by a Minister of Religion licensed to solemnize
marriages under this Act ? One of the persons intending marriage shall give
notice in writing according to the form contained in the First Scheduled , here
to annexed, or to the like effect , to the Minister of Religion whom he or she
desires to solemnize the marriage , and shall state therein :- (a)
the name and surname, and the profession or condition, of each of
the persons intending marriage, (b)
the dwelling place of each of them, (c)
the time during which each has dwelt there, and (d)
the Church or private dwelling in which the marriage is to be
solemnized: Provided that , if either
of such persons has dwelt in that place mentioned in the notice during more
than one month, it may be stated that he or she dwelt there one month and
upwards. If the persons intend in
marriage desires to be solemnized in a particular Church, and if the Minister
of Religion to whom such notice has been delivered be entitled to officiate,
therein, he shall cause the notice to be affixed in some conspicuous part of
such Church. If it be intended that the
marriage shall be solemnized in a private dwelling, the Minister of Religion on
receiving the notice prescribed in section 11, shall forward it to the
Magistrate of the district who shall affix the same to some conspicuous place
in his own office. When one of the persons
intending marriage is a minor, every Minister receiving such notice shall,
unless within twenty four hours after its receipt returns the same under the
provisions of section 12, send by the post or otherwise a copy of sucgh notice
to the Marriage Registrar of the District. The Marriage Registrar, on
receiving any such notice , shall affix it to some conspicuous place in his own
office. Any Minister of Religion
consenting or intended to solemnizing any such marriage as aforesaid, shall, on
being required so to do by or on behalf of the person by whom the notice was
given, and upon one of the person intending marriage , issue under his hand a
certificate f such notice having been given and of such declaration having been
made. Provided :- (1)
That no such certificate shall be issued until the expiration of
four days after the date of the receipt of the notice by such minister. (2)
That no lawful impediment be shown to his satisfaction why such
certificate should not be issued ; and (3)
That the issue of such certificate has not been forbidden in
manner herein after mentioned, by any person authorized in that behalf. The certificate mentioned
in section 16 shall not be issued until one of the persons intending marriage
has appeared personally before the Minister and made a solemn declaration :- (a)
That he or she believes that there is not any impediment of
kindred or affinity or other lawful hindrance to the said marriage, And , when
either or both of the parties is or are a minor or minors. (b)
That the consent or consents required by law has or have been
obtained thereto, or that there is no person resident in the state having
authority to give such consent, as the case may be. The father, if living , of
any minor , or if the father be dead , the guardian of the person, of such
minor, and , in case there be no such guardian , then the mother of such minor,
may give consent to the minor?s marriage, and such consent is hereby required
for the same marriage, unless no person authorized to give such consent be
resident in the state. Every person whose consent
to a marriage is required under section 18 is hereby authorized to prohibit the
issue of the certificates by any Minister, at any time before the issue of the
same, by notice in writing to such minister, subscribed by the person so
authorized with his or her name and place of abode and position with respect to
either of the persons intending marriage, by reason of which he or she is so
authorized as aforesaid. If any such notice be
received by any such Minister, he shall not issue his certificate and shall not
solemnize the said marriage, until he has examined into the matter of the said
prohibition, and is satisfied that the person prohibiting the marriage has no
lawful authority for such prohibition , or until the said notice is withdrawn
by the person who gave it. When either of the persons
intending marriage is a minor, and the Minister is not satisfied that the
consent of the person whose consent to such marriage is required by section18
has been obtained, such Minister shall not issue such certificate until the
expiration of fourteen days after the receipt by him of the notice of the
marriage. When any Indian Christian
about to be married takes a notice of marriage to a Minister of Religion, or
applies for a certificate from such Minister under section 16,such Minister
shall, before issuing that certificate , ascertain whether such Indian
Christian is cognizant of the purport and effect of the said notice or
certificate, as the case may be, and if not, shall translate or cause to be
translated the notice or certificate to such Indian Christian into some
language which he understands. The certificate to be
issued by such Minister shall be in the form contained in the second schedule
hereto annexed, or to the like effect. After the issue of the
certificate, by the Minister , marriage may be solemnized between the persons
therein described according to such form or ceremony as the Minister thinks fit
to adopt : Provided that the marriage
be solemnized in the presence of at least two witness besides the Minister. Whenever a marriage is not
solemnized within two months after the date of the certificate issued by such
Minister as aforesaid, such certificate and all proceedings (if any) thereon
shall be void, and no person shall proceed to solemnize the said marriage until
new notice has been given and certificate thereof issued in manner afore said. All Marriages hereafter
solemnized in Jammu and Kashmir State between persons one or both of whom
professes or profess the Christian religion, except marriages solemnized under
Chapter VI or Chapter VII of this Act, shall be registered in manner herein after
prescribed. Every clergyman of the
Church of England shall keep a register of marriages and shall register
therein, according to the tabular form set forth in the third schedule hereto
annexed, every marriage which he solemnizes, under this Act. Every Clergyman of the
Church of England shall send four times in every year returns in duplicate,
authenticated by his signature, of the entries in the register of marriages
solemnized at any place where he has any spiritual charge, to the Registrar of
the Archdeaconry to which he is subject, or within the limits of which such
place is situate. Every marriage solemnized
by the Clergymen of a Church of Rome shall be registered by the person and
according to the form directed in that behalf by the Rome Catholic Bishop of
Diocese or Vicariate in which such marriage is solemnized and such person shall
forward quarterly to the Registrar General returns of the entries of all
marriages registered by him during the three months preceding. Every clergyman of the
Church of Scotland shall keep a register of marriages , and shall register
therein, according to the tabular form set forth in thr third schedule here to
annexed, every marriage which he solemnize under this Act, and shall forward
quarterly to the Registrar General through the Senior Chaplain of the Church of
the Scotland, returns, similar to those prescribed in section 28, of all such
marriages. Every Marriage solemnized
by any person who has received Episcopal ordination, but who is not a clergyman
of the Church of England or of the Church of Rome or by any Minister of
Religion licensed under this Act to solemnize marriages, shall immediately
after the solemnization thereof, be registered in duplicate by the person
solemnizing the same ; in a marriage- register book to be kept by him for that
purpose, according to the form contained in the fourth scheduled hereto
annexed, and also in a certificate attached to the marriage- register-book as a
counter foil. The entry of such marriage
in both the certificate and marriage ? register-book shall be signed by the
person solemnizing the marriage and also by the persons married, and shall be
attested by two creditable witnesses, other than the person solemnizing the
marriage, present at its solemnization. Such copies shall be
entered in order from the beginning to the end of the said book, and shall bear
both the number of certificate as copied, and also a number to be entered by
the Marriage Registrar, indicating the number of the entry, of the said copy in
the said book, according to the order in which he receives such certificates. The Marriage Registrar
shall also add such last ,mentioned number of the entry of the copy in the book
to the certificate, with his signature or initials, and shall, at the end of
the month send the same to the Registrar General. Whoever has the control of
the book at the time when it is filled, shall send it to the Marriage Registrar
of the District, who shall send it to the Registrar General to be kept by him
with t5he records of his office. (1)
Nothing contained in this Chapter shall authorize the High Court
or the District Court to grant any relief under this chapter except where the
petitioner or respondent professes the Christian Religion. Or to make decrees
or dissolution of the marriages except where the parties to the marriage are
domiciled in the Jammu and Kashmir state at the time when the petition is
presented, or to make decrees of nullity of marriage except where the marriage
has been solemnized in the Jammu and Kashmir state and the petitioner is
resident in the Jammu and Kashmir state at the time when the petition is
presented, or to grant any relief under this chapter other than a decree of
dissolution of marriage or of nullity of marriage, except where the petitioner
resides in the Jammu and Kashmir state at the time of presenting the petition. (2)
Court to act on principles of English Divorce Court :- Subject to
the provisions contained in this chapter, the High Court 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. Every petition under this chapter
,save as otherwise provided , shall be presented to the District Court within
the local limits of whose jurisdiction the husband and wife reside or last
resided together. Any Husband may present a
petition to the District Court, praying that his marriage may be dissolved on
the ground that his wife has, since the solemnization thereof, been guilty of
adultery. Any husband may present a
petition to the District Court, praying that her marriage may be dissolved on
the ground that since, the solemnization thereof, her husband has exchanged his
profession of Christianity for the profession of some other religion, and gone
through a form of
marriage with another woman, or with
another woman or, has been
guilty of incestuous adultery, or of bigamy with adultery , or of marriage with another woman with adultery , or of rape, sodomy
or bestiality ,or of
adultery coupled with such cruelty as without adultery would have entitled her
to a divorce a mensa et tora, or of adultery coupled with desertion., without reasonable excuse,
for two years or upwards. Contents of Petition :- Every
such petition shall state, as distinctly as the nature of the case permits, the
facts on which the claim to have such marriage dissolved is founded. Upon any such petition
presented by a husband, the petitioner shall make the alleged adulterer a co
?respondent to the said petition, unless he is excused from so doing on one of
the following grounds, to be allowed by the Court :- (1)
that the respondent is leading the life of a prostitute, and that
the petitioner knows of no person with whom the adultery has been committed; (2)
that the name of the alleged adulterer is unknown to the
petitioner although he has made due efforts to discover it; (3)
that the alleged adulterer 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 necessary to, or conniving at, the going
through of the said form of marriage, or the adultery , or has condoned the
same, and shall also inquire into any counter change 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 necessary to, or convincing
at, the going through of the said form of marriage or the adultery of another
party to the marriage, or has condoned the adultery complained of, or then and
in any of the said cases the Court shall dismiss the petition. When a petition is
dismissed by a District Court under this section, the petitioner may,
nevertheless, present a similar petition to the High court. 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
complained of, or that the petition is presented or prosecuted in collision
with either of the respondents, the Court shall pronounce a decree declaring
such marriage to be dissolved in the manner and subject to all the provisions
and limitations in sections 81 and 82 made and declared : Provided that the Court
shall not bound to pronounce such decree if it finds that the petitioner has,
during the marriage, been guilty of adultery, or if the petitioner has, in the
opinion of the Court, been guilty of unreasonable delay in presenting or
prosecuting such petition, or of cruelty towards the other party to the
marriage , or of having deserted or willfully separated himself or herself from
the other party before the adultery complained of, and without reasonable
excuse, or of such willful neglect or misconduct of or towards the other party
as has conducted to the adultery. In any suit instituted for
dissolution of marriage , if the respondent opposes the relief sought on the
ground , in case of such a suit instituted by a husband , of his adultery ,
cruelty or desertion without reasonable excuse , or in case of such a suit
instituted by a wife, on the ground of her adultery and cruelty, the Court may
in such suit give to the respondent, on his or her application, the same relief
to which he or she had represented a petition seeking such relief, and the
respondent shall be competent to give evidence of or relating to such cruelty
or desertion. Every decree for
dissolution of marriage made by a High Court, not being a confirmation of a
decree of a District Court, shall , in the first instance, be a decree nisi ,
not to be made absolute till after the expiration of such time , not less than
six months from the pouncing thereof, as the High Court general or special
order from time to time directs. 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 shown, the Court shall deal with the case by making the decree
absolute, or by revising the decree nisi , or by requiring further enquiry, or
otherwise as justice may demand : The High Court may order
the cost of counsel and witnesses, and otherwise arising from such cause being
shown, to be paid by the parties or such one or more of them as it thinks fit ,
including a wife if she has separate property. When 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. Every decree for
dissolution of marriage made by a District Court shall be subject to
confirmation of by the High Court. Cases for confirmation of a decree for
dissolution of marriage shall be heard by a Court composed of three judges, and
in case of difference the opinion of the majority shall prevail. The High
Court, if it thinks further enquiry or additional evidence to be necessary, may
direct such enquiry to be made or such evidence to be taken. The result of such
enquiry and the additional evidence shall be certified to the High Court by the
District Court and the High Court shall there upon make an order confirming the
decree for dissolution of marriage, or such order as the Court seems fit : Provided that no decree
shall be confirmed under this section till after expiration such time, not less
than six months from the pouncing thereof, as the High Court by general or by
special order from time to time directs. During the progress of the
suit in the District Court, any person suspecting that any party 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 for the issue of
directions to the District Court to take such steps in respect of the alleged
collusion as may be necessary to enable it to make a decree in accordance with
the justice of the case. The Government may appoint
an officer who shall have the like right of showing cause why a decree for
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 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. Any husband or wife may
present a petition to the district Court praying that his or her marriage may
be declared null or void. 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 institution of the suit; (2)
That the parties are with in the prohibited degrees of
consanguinity(whether natural or legal) or affinity; (3)
That either party was a lunatic or idiot at the time of marriage; (4)
That the former husband or wife of either party was living at the
time of marriage, and the marriage with such former husband or wife was in full
force at the time of marriage; (5)
That the consent of either party was obtained by force or fraud : Provided that in the case
specified in clause (5) the Court shall not grant a decree if ? (a)
proceedings have not been made with in one year after the coercion
had ceased, or, as the case may be, the fraud has been recovered; or (b)
the petitioner has with his or her free consent lived with the
other party to the marriage as husband and wife after the coercion had ceased,
or as the case may be, the fraud had been discovered. Every decree of nullity of
marriage made by District Court made by a District Court shall be subject to
confirmation by the High Court, and the provisions of section 82, clauses (1),
(2) and (3) shall, mutatis, mutandis, apply to such decree. 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 the legitimate children to the estate of the
parent who at the time of marriage was competent to contract. No decree shall here after
be made for a divorce a Mensa et Toro but the Husband or Wife obtained a decree
of judicial separation, on the ground of adultery, or cruelty, or desertion
without reasonable excuse, for two years or upwards and such decree shall have
the effect of a divorce a Mensa et Toro under the existing law, and such other
legal effect as hereinafter mentioned. 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 and the Court on being satisfied of the
truths of the statement5s made in such petition, and that there is no legal
ground why the application should not be granted, may decree judicial
separation accordingly. 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 co habitation takes place shall be held to her separate use,
subject, however to any agreement in writing made between herself and her
husband whilst separate. 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 suing and wrong injuries,
and being suit in any civil proceedings; 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 judicial separation, alimony had 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
exercise of any joint power given to herself and her husband. Any wife may, when deserted
by her husband, present a petition to the District Court, at any time after
such desertion, for an order to protect any property which she may acquire or
acquired, and any property of which she may have become possessed after such
desertion, against her husband or his creditors or any person claiming under
him. The Court, if the 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 Government may make
rules in regard to the disposals of the fees mentioned in section 133, the
supply of register-books, and the preparation and submission of returns of
marriages solemnized under this Act.
Preamble - THE JAMMU AND KASHMIR CHRISTIAN MARRIAGE AND DIVORCE
ACT, 1957 [REPEALED]PREAMBLE