THE INDIAN DIVORCE ACT, 1869
ACT No. 4 OF 1869 1*
[26th February, 1869.]
An Act to amend the law relating to Divorce and Matrimonial Causes 2***
Preamble.- WHEREAS it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial; it is hereby enacted as follows –
| | INDIA CODE, VOL-II, (1856-1879)
PRELIMINARY
1. Short title Commencement of Act.
This Act may be called the Indian Divorce Act, and shall come into operation on the first day of April, 1869.
2. Extent of Act.
This Act extends to the whole of India except the State of Jammu and Kashmir.
Extent of power to grant relief generally,-6*[Nothing hereinafter contained shall authorise any Court to grant any relief under this Act except where the petitioner 7*[or respondent] professes the Christian religion, and to make decrees of dissolution, 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 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.] |
| | 3. In this Act, unless there be something repugnant in the subject or context –
(1) "High Court".- "High Court" means with reference to any area:
(a) in a State, the High Court for that State;
(b) in Delhi, the High Court of Delhi;
(bb) in Himachal Pradesh, the High Court of Punjab and 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 10*[Lakshadweep], the High Court of Kerala;
11[(ee) in Chandigarh, the High Court of Punjab and Haryana;]
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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. Subs. by A.O. 1948, for the original first para.
4. Subs. by A.O. 1950, for certain words.
5. Subs. by Act 3 of 1951, s. 3 and Sch., for "except Part B States".
6. Subs. by Act 25 of 1926, s. 2, for paras. 2, 3 and 4.
7. Ins. by Act 30 of 1927, s. 2.
8. Subs. by A.O. (No. 2) 1956, for the former .
9. 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).
10. Subs. by the Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974, for "the Laccadive, Minicoy and Amindivi Islands" (w.e.f. 1-11-1973).
11. ins' by the Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968 (w.e.f. 1-11-1966).
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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:
(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, the husband and wife reside or last resided together:
(4) "Court."-"Court" means the High Court or the District Court, as the case may be:
(5) "Minor children."-"minor children" means, in the case of sons of Native fathers, boys who have not completed the age of sixteen years, and, in the case of daughters of Native fathers, girls who have not completed the age of thirteen years. In other cases it means unmarried children who have not completed the age of eighteen years:
(6) "Incestuous adultery."-"incestuous adultery" means adultery committed by a husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage by reason of her being within the prohibited degrees of consanguinity (whether natural or legal) or affinity:
(7) "Bigamy with adultery."-"bigamy with adultery" means adultery with the same woman with whom the bigamy was committed:
(8) "Marriage with another woman."- "marriage with another woman" means marriage of any person, being married, to any other person, during the life of the former wife, whether the second marriage shall have taken place within 2*[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
4. Matrimonial jurisdiction of High Courts to be exercised subject to Act.
Exception.-The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise: except so far as relates to the granting of marriage-licenses, which may be granted as it this Act had not been passed.
5. Enforcement of decrees or orders made heretofore by Supreme or High Court.
Any decree or order of the late Supreme Court of Judicature at Calcutta, Madras or Bombay sitting on the ecclesiastical side, or of any of the said High Courts sitting in the exercise of their matrimonial jurisdiction, respectively, in any cause or matter matrimonial, may be enforced and dealt with by the said High Courts, respectively, as herein after mentioned, in like manner as if such decree or order had been originally made under this Act by the Court so enforcing or dealing with the same.
6. Pending suits.
All suits and proceedings in causes and matters matrimonial, which when this Act comes into operation are pending in any High Court, shall be dealt with and decided by such Court, so far as may be, as if they had been originally instituted therein under this Act. |
Court to act on principles of English Divorce Court |
| | 7. 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.
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1. Subs. by A.O. 1950, for the former clause.
2. Subs, [bid., for "the dominions of Her Majesty".
3. Added by Act 10 of 1912, s. 2.
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8. Extraordinary jurisdiction of High Court.
The High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under this Act.
Power to transfer suits.-The High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such District Judge.
9. Reference to High Court.
When any question of law or usage having the force of law arises at any point in the proceedings previous to the hearing of any suit under this Act by a District Court or at any subsequent stage of such suit, or in the execution of the decree therein or order thereon, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the case and refer it, with the Court's own opinion thereon, to the decision of the High Court.
If the question has arisen previous to or in the hearing, the District Court may either stay such proceedings, or proceed in the case pending such reference, and pass a decree contingent upon the opinion of the High Court upon it.
If a decree or order has been made, its execution shall be stayed until the receipt of the order of the High Court upon such reference. |
| | III.-DISSOLUTION OF MARRIAGE
10. When husband may petition for dissolution.
Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.
When wife may petition for dissolution.
Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;
or has been guilty of incestuous adultery,
or of bigamy with adultery,
or of marriage with another woman with adultery, or of rape, sodomy or bestiality,
or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro,
or of adultery coupled with desertion, without reasonable excuse, for two years or upwards. |
| | Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.
11. Adulterer to be co-respondent.
Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court –
(1) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed;
(2) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it;
(3) that the alleged adulterer is dead.
12. Court to be satisfied of absence of collusion.
Upon any such petition for the dissolution of a marriage, the Court shall satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or not the petitioner has been in any manner accessory to, or conniving at, the going though of the said form of marriage, or the adultery, or has condoned the same, and shall also enquire into any countercharge which may be made against the petitioner. |
| | 13. 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.
When a petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court.
14. Power to Court to pronounce decree for dissolving marriage.
In case the Court is satisfied on the evidence that the case of the petitioner has been proved, and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, the Court shall pronounce a decree declaring such marriage to be dissolved in the manner and subject to all the provisions and limitations in sections sixteen and seventeen made and declared:
Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct of or towards the other party as has conduced to the adultery. |
| | No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.
15. Relief in case of opposition on certain grounds.
In any suit instituted for dissolution of marriage, if the respondent opposes the relief sought on the ground, in case of such a Suit instituted by a husband, of his adultery, cruelty, or desertion without reasonable excuse, or, in case of such a suit instituted by a wife, on the ground of her adultery and cruelty, the Court may in such suit give to the respondent, on his or her application, the same relief to which he or she would have been entitled in case he or she had presented a petition seeking such relief, and the respondent shall be competent to give evidence of or relating to such cruelty or desertion.
16. Decrees for dissolution to be nisi.
Every decree for a dissolution of marriage made by a High Court not being a confirmation of a decree of a District Court, shall, in the first instance, be a decree nisi, not to 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. |
| | 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.
17. Confirmation of decree for dissolution by District Judge.
Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court.
Cases for confirmation of a decree 'for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such Judges, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges, and in case of difference the opinion of the Senior Judge shall prevail.
The High Court, if it 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 Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit:
Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs.
During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs. to apply to the High Court to remove the suit under section eight, and the High 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 sixteen shall apply to every suit so removed: or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case.
17A. Appointment of officer to exercise duties of King's Proctor.
The Government of the State within which any High Court exercises jurisdiction], may appoint an officer who shall, within the jurisdiction of the High Court in that State, have the like right of showing cause why a decree for the dissolution of a marriage should not be made absolute or should not be confirmed, as the case may be, as is exercisable in England by the King's Proctor; and the said Government may make rules regulating the manner in which the right shall be exercised and all matters incidental to or consequential on any exercise of the right. |
| | IV.-NULLITY OF MARRIAGE
18. Petition for decree of nullity.
Any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void.
19. Grounds of decree.
Such decree may be made on any of the following grounds –
(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. |
Confirmation of District Judge's decree |
| | 20. 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.
21. Children of annulled marriage.
Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.
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1. Subs. by A.O. 1937, for the original s. 17A.
2. Subs. by Act 3 of 1951, s. 3 and Sch., for certain words.
3. Second paragraph omitted by s. 3., ibid.
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| | V.-JUDICIAL SEPARATION
22. Bar to decree for divorce a mensa et toro; but judicial separation obtainable by husband or wife.
No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.
23. Application for separation made by petition.
Application for judicial separation on any one of the grounds aforesaid, may be made by either husband or wife by petition to the District Court or the High Court; and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly. |
Separated wife deemed spinster with respect to after-acquired property |
| | 24. In every case of a judicial separation under this Act, the wife shall, from the date of the sentence, and whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire, or which may come to or devolve upon her.
Such property may be disposed of by her in all respects as an unmarried woman, and on her decease the same shall, in case she dies intestate, go as the same would have gone if her husband had been then dead:
Provided that, if any such wife again cohabits with her husband, all such property as she may be entitled to when such cohabitation takes place shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst separate.
25. Separated wife deemed spinster for purposes of contract and suing.
In every case of a judicial separation under this Act, the wife shall, whilst so separated, be considered as an unmarried woman for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding; and her husband shall not be liable in respect of any contract, act or costs entered into, done, omitted or incurred by her during the separation:
Provided that where, upon any such judicial separation, 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.
26. Decree of Separation obtained during absence of husband or wife may be reversed.
Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at any time thereafter, present a petition to the Court by which the decree was pronounced, praying for a reversal of such decree, on the ground that it was obtained in his or her absence, and that there was reasonable excuse for the alleged desertion, where desertion was the ground of such decree.
The Court may, on being satisfied of the truth of the allegations of such petition, reverse the decree accordingly; but such reversal shall not prejudice or affect the rights or remedies which any other person would have had, in case it had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and of the reversal thereof. |
| | VI.-PROTECTION-ORDERS
27. Deserted wife may apply to Court for protection.
Any wife to whom section 4 of the Indian Succession Act, 18651* (10 of 1865), does not apply, may, when deserted by her husband, present a petition to the District Court or the High Court, at any time after such desertion, for an order to protect any property which she may have acquired or may acquire, and any property of which she may have become possessed or may become possessed after such desertion, against her husband or his creditors, or any person claiming under him.
28. Court may grant protection-order.
The Court, if satisfied of the fact of such desertion and that the same was without reasonable excuse, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and other property from her husband and all creditors and persons claiming under him. Every such order shall state 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.
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1. See now the Indian Succession Act, 1925 (39 of 1925).
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29. Discharge of variation of orders.
The husband or any creditor of, or person claiming under him, may apply to the Court by which such order was made for the discharge or variation thereof, and the Court, if the desertion has ceased, or if for any other reason it thinks fit so to do, may discharge or vary the order accordingly.
30. Liability of husband seizing wife's property after notice of order.
If the husband, or any creditor of, or person claiming under, the husband, seizes or continues to hold any property of the wife after notice of any such order, he shall be liable, at the suit of the wife (which she is hereby empowered to bring), to return or deliver to her the specific property, and also to pay her a sum equal to double its value.
31. Wife's legal position during continuance of order.
So long as any such order of protection remains in force, the wife shall be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation. |
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RESTITUTION OF CONJUGAL RIGHTS |
| | VII.- RESTITUTION OF CONJUGAL RIGHTS
32. Petition for restitution of conjugal rights.
When either the husband or the wife has without reasonable excuse, withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court or the High Court, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, Hand that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
33. Answer to petition.
Nothing shall be pleaded in answer to a petition for restitution of conjugal rights, which would not be ground for a suit for judicial separation or for a decree of nullity of marriage. |
| | VIII.-DAMAGES AND COSTS
34. Husband may claim damages from adulterer.
Any husband may, either in a petition for dissolution of marriage or for judicial separation, or in a petition to the District Court or the High Court limited to such object only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner.
Such petition shall be served on the alleged adulterer and the wife, unless the Court dispenses with such service, or directs some other service to be substituted.
The damages to be recovered on any such petition shall be ascertained by the said Court, although the respondents or either of them may not appear.
After the decision has been given, the Court may direct in what manner such damages shall be paid or applied.
35. Power to order adulterer to pay costs.
Whenever in any petition presented by a husband the alleged adulterer has been made a co-respondent, and the adultery his began established, the Court may order the co-respondent to pay the whole or any part of the costs of the proceedings:
Provided that the co-respondent shall not be ordered to pay the petitioner's costs –
(1) if the respondent was, at the time of the adultery, living apart from her husband and leading the life of a prostitute, or
(2) if the co-respondent had not, at the time of the adultery, reason to believe the respondent to be a married woman.
Power to order litigious intervenor to pay costs.
Whenever any application is made under section 17, the Court, if it thinks that the applicant had no grounds or no sufficient grounds for intervening, may order him to pay the whole or any part of the costs occasioned by the application. |
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