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

I.-PRELIMINARY

                            I.-PRELIMINARY

1.Short title.

     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.

     2.   Extent  of  Act.-3*[This  Act  extends  to  4*[the whole  of

India 5*[except the State of Jammu and Kashmir]].]

Extent of power to rant relief generally,

     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.Interpretation-clause.

     3.   Interpretation-clause.-In   this   Act,  unless   there   be

something repugnant in the subject or context,-

     8[(1)  "High  Court".- "High Court" means with reference  to  any

area:

     (a) in a State, the High Court for that State;

     9[(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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54

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:]

     1[(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  whosejurisdiction

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 marriageby 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.

JURISDICTION

II.-JURISDICTION

                           II.-JURISDICTION

4.Matrimonial  jurisdiction  of High Courts to be exercised  subject  to

Act. Exception.

     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.

     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.

     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.

7.Court to act on principles of English Divorce Court.

     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:

     3[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.

     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.

     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.

     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.

DISSOLUTION OF MARRIAGE

III.-DISSOLUTION OF MARRIAGE

                     III.-DISSOLUTION OF MARRIAGE

10.When husband may petition for dissolution.

     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.

     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.

Contents of petition.

     Contents  of  petition.--Every  such  petition  shall  state,  as

distinctly  as the nature of the case permits, the facts on which  the

claim to have such marriage dissolved is founded.

11.Adulterer to be co-respondent.

     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.

     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.Dismissal of petition.

     13.Dismissal  of petition.-In case the Court, on the evidence  in

relation to any such petition, is satisfied that the petitioner's case

has not been proved, or is not satisfied that the alleged adultery has

been committed,    or  finds  that  the petitioner has, during  the  marriage,  beenaccessory  to, or conniving at, the going through of the said form  ofmarriage,  or the adultery of the other party to the marriage, or  hascondoned 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.-

     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.

Condonation.

     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.

15.Relief in case of opposition on certain grounds.

     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.

     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.

Collusion.

     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.

17.Confirmation of decree for dissolution by District Judge.

     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.

     1[17A.   Appointment  of  officer to exercise  duties  of  King's

Proctor.-  2[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.

NULLITY OF MARRIAGE

IV.-NULLITY OF MARRIAGE

                       IV.-NULLITY OF MARRIAGE

18.Petition for decree of nullity.

     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.

     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.

20.Confirmation of District Judge's decree.

     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.

21.Children of annulled marriage.

     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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JUDICIAL SEPARATION

V.-JUDICIAL SEPARATION

                        V.-JUDICIAL SEPARATION

22.Bar  to  decree for divorce a mensa et toro; but  judicial  separation

obtainable by husband or wife.

     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.

     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.

24.Separated   wife  deemed  spinster  wit