The Divorce Act, 1869
ACT No. IV OF 1869
(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,
tbid.,1863, Supplement, p. 43, and Gazette of India, 1869, Supplement, p. 291.
The Act extends to Pakistan
Provision was made by the Indian Divorces (Validity) Act (11
& 12 Geo. 5, ch. 18) with respect to the validity of certain decrees
granted in India for the
dissolution of the marriage of persons domiciled in the United Kingdom
The Limitation Act does not apply to suits under this Act,
see the Limita*tion Act, 1908 (9 of 1908), s. 29 (2).
It has been declared to be in force in Baluchistan
by the British Baluchistan Laws Regulation, 1913 (2 of 1913), s. 3.
It has been applied to Phulera in the Excluded Area of Upper
Tanawal to the extent the Act is applicable in the N: W.F.P., subject to
certain modifications, and extended to the Excluded Area of Upper Tanawal (N:
W.F.P.) other than Phulera with effect from such date and subject to such
modifications as may be notified, see N: W.F.P. (Upper Tanawal) (Excluded Area)
Laws Regulation, 1950.
It has also been extended to the Leased Areas of
Baluchistan, see the Leased Areas (Laws) Order, 1950 (G. G. O. 3 of 1950) ; and
applied in the Federated Areas of Baluchistan, see Gazette of India, 1937, Pt.
I, p.1499)
26th February, 1869]
An Act to amend the law relating to Divorce and Matrimonial
Causes (The words “in India “omitted by A.
O., 1949, Sch)* *
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:---
I: PRELIMINARY
1. Short title. Commencement of Act This Act may be called the (The word “Indian”
omitted, ibid.) Divorce Act, and shall come into operation on the first
day of April, 1869.
2. Extent of Act. (The
original paragraph has successively been amended by A. O., 1949 and the Central
Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with
effect from the 14th October, 1955), to read as above) [This Act extends
to the whole of Pakistan
Extent of power to grant relief generally and to make
decrees of dissolution, Or of nullity (Subs.
by the Divorce (Amendment) Act, 1926 (25of 1926), for the original paragraph)[Nothing
hereinafter contained shall authorize any Court to grant any relief under this
Act except where the petitioner (Ins. by the Divorce (Second Amendment)
Act, 1927 (30 of 1927), s. 2.) [ or respondent] professes the Christian
religion,
or to make decrees of dissolution of marriage except where
the parties to the marriage are domiciled in (Subs. by A. O., 1949,
Sch., for “ India”.) [Pakistan
(Subs. by the Divorce (Amendment)
Act, 1950 (57 of 1950), s. 2, for the* original sub‑paragraph.) [or to
make decrees of nullity of marriage except where the, marriage if solemnized
before the 15th day of August, 1947, has been solemnized in India and if
solemnized on or after that date has been solemnized in Pakistan and the
petitioner is resident in Pakistan 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 (Subs. by A. O., 1949, Sch., for “ India”.)
[Pakistan
3. Interpretation‑clause.
In this Act, unless there be something repugnant in the subject or context,---
High Court (The
original clause has been successively amended by Acts 18 of 1919, 32 of 1925, 8
of 1935, A. O., 1937, and A. O., 1949, Sch., to read as above.) [(1)
“High Court” means with reference to any area,---
(a) in (Subs. by A. O., 1961, Art. 2, for “East
Bengal” (with effect from the 23rd march, 1956)) [East Pakistan], the
High Court of (Subs. by A. O., 1961, Art. 2, for “East Bengal” (with
effect from the 23rd march, 1956))[East Pakistan ];.
(Subs. by the Central Laws (Statute
Reform) ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the
14th October, 195), for the original sub clause (b) as amended by the Federal
Laws (Revision and Declaration) Act, 1951 (26 of 1951), s. 8) [(b) in West Pakistan , the High Court of West Pakistan; and]
(The original sub clause (c) omitted
by Ord. 21 of 1960, s. 3 and 2ndl Sch. (with effect from the 14th October,
1955).)* * * * * *
(d) in any Acceding State or non-Acceding State, that Court
of those mentioned above which the Central Government may from time to time
appoint in this behalf by notification in the official Gazette, and until such
appointment that which immediately before the 15th day of August, 1947, was
exercising criminal jurisdiction in respect of European British subjects in
that State.
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.]
(Subs. by A.O., 1937, for the
original clause as amended by Acts 11 of 1923, 32 of 1925 and 34 of 1926)
District Judge [(2) “District Judge” means,---
(a) in a Province, a judge of a Principal Civil Court of original
jurisdiction, however designated; and
(b) in any area in an (Subs. by Act 26 of 1951, s. 4
and III Sch., for “Indian State”.)[Acceding State] such officer as the
Central Government shall from time to time appoint in this behalf by
notification in the official Gazette, and, in the absence of such an officer,
the High Court for the area :]
(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 (Subs. by A.O., 1961,
Art. 2 and Sch., dor “the dominions of Her Majesty” (with effect from the 3rd
March, 1956).)[Pakistan
(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 administrator
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 administrator.
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 if 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 (Subs. by A.
O., 1961, Art. 22 and Sch., for “the said High Courts, respectively,” (with
effect from the 23rd March, 1956).)[the High Court] 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.
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 .
Subject to the provisions contained in this Act, the High Courts and District
Courts shall, in all suits and proceedings here‑*under, 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.
(Ins. by the Indian Divorce
(Amendment) Act, 1912 (10 of 1912), s. 2) [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.]
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 mehsa et toro,
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.
11. Adulterer to be correspondent Upon any such petition presented by a husband, the
petitioner shall make the alleged adulterer a correspondent 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 through of the said form of marriage,
or the adultery, or has condoned the same, and shall also inquire into any
countercharge which may be made against the petitioner.
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, 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 16 and 17 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 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 conduced to the adultery.
Condemnation. No
adultery shall be deemed to have been condoned within the meaning of this Act
unless where conjugal co‑habitation 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 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.
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 think 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 8,
and the High Court shall thereupon, if it think 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.
17A. Appointment of officer to exercise duties of King’s
Proctor.‑( Subs. by A. O., 1937, for
original section 17A as ins. by s. 2 of the Indian Divorce (Amendment) Act,
1927 (15 of 1927).)[The Provincial Government (The original words
“of any Province within which any High Court established by Letters Patent
exercises jurisdiction,” omitted by the Central Laws (Statute Reform)
Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th
October, 1955).)* * * may appoint an officer who shall, within the
jurisdiction of the High Court in that Province, 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.
In relation to the jurisdiction of any such High Court as
aforesaid in an (Subs. by the Federal Laws (Revision and Declaration)
Act, 1951 (26 of 1951), s. 4 and III Sch., for “ Indian State”) [Acceding State ] this section shall have effect as if the
reference to the Provincial Government was a reference to the Central
Government.]
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.
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 Judge
provisions of section 17, clauses 1, 2, 3 and 4, shall, mutatis decree
mutandis, apply to such decrees.
21. Children of annulled marriage. Where a marriage is annulled on the ground that a former
Child’ husband or wife was living, and it is adjudged that the subsequent annul
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
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 for at toro, but the
husband or wife may obtain a decree of judicial separation, on the ground of
adultery, or cruelty, or desertion but: 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, by 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 with respect to after
acquired property. 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, to case she dies
intestate, go as the same would have gone if her husband bad 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.
REVERSAL OF DECREE OF SEPARATION
26. Decrees 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,
1865 (See now the Succession Act, 1925 (39 of 1925).), does not
apply, may, when deserted by her husband, present 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.
29. Discharge or 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 think 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 slut 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.
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, and 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 t; 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 has been established,
the Court may order the co-respondent to pay the whole or any part of the cost
of the proceedings.
Provided that the correspondent shall not be ordered to pay
the petitioner’s cost,---
(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 correspondent had not, at the time of the
adultery, reason to believe the respondent to be a married woman.
Power to order litigious intervener 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.
IX: ALIMONY
36. Alimony pendent light.
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 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 alimony pending the
suit as it may deem just,---
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.
37. Power to order permanent alimony. The High Court may, if it think fit, on any decree absolute
declaring a marriage to be dissolved, or on any decree of judicial separation
obtained by the wife, 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, 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
be*comes 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.
38. Court may direct payment of alimony to wife or to her
trustee. 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
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 covertures’ 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 34 shall be settled for the benefit of the children of the marriage, or
as a provision for the maintenance of the wife.
40. Inquiry into existence of ante nuptial or post‑nuptial
settlements. The High Court, after a decree
absolute for dissolution of marriage, or a decree of nullity of marriage, and
the District Court, after its decree for dissolution of marriage or of nullity
of marriage has teen confirmed, may 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.
XI‑CUSTODY OF CHILDREN
41. Power to make orders as to custody of children in suit
for separation. 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 think fit, direct proceedings to be taken for placing such children
under the protection of the said Court.
42. Power to make such orders after decree. 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.
43. Power to make orders as to custody of children in suits
for dissolution or nullity. In any suit
for obtaining a dissolution of marriage or a decree of nullity of marriage
instituted in, or removed to, a High Court; the Court may from time to time,
before making its decree absolute or its decree (as the case may be), make such
interim orders and may make such provision in the decree absolute or decree.
and in any such suit instituted in a District Court, the
Court may from time to time, before its decree is confirmed, make such interim
orders, and may make such provision on such confirmation, as the High Court or
District Court (as the case may be) deems 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 think fit, direct proceedings to be taken for
placing such children under the protection of the Court.
44. Power to make such orders after decree or confirmation. The High Court, after a decree absolute for dissolution of
marriage or a decree of nullity of marriage, and the District Court, after a
decree for dissolution of marriage or of nullity of marriage has been
confirmed, may, upon application by petition for the 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 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.
XII.‑PROCEDURE
45. Code of Civil Procedure to apply. Subject to the provisions herein contained, all proceedings
under this Act between party and party shall be regulated by the Code of Civil
Procedure (See now the Code of Civil Procedure, 1908 (5 of 1908).).
46. Forms of petitions and statements. 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.
47. Stamp on petition.
Petition to state absence of collusion Every petition under this Act for
a decree of dissolution of marriage or of nullity of marriage, or of judicial
separation (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,” and the words “ in the first, second, and third cases mentioned
in this section, rep. by the Court fees Act, 1870 (7 of 1870). For court fee,
see now Art. 7 of Sch. II to that Act)* * * shall (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,” and the words “ in the
first, second, and third cases mentioned in this section, rep. by the Court
fees Act, 1870 (7 of 1870). For court fee, see now Art. 7 of Sch. II to that
Act)* * * 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.
48. Suits on behalf of lunatics. 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.
49. Suits by minors.
Where the petitioner is a minor, he or she shall sue by his or her next friend
to be approved by 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 (The words “shall bear a stamp of
eight annas and “ rep by the Court-fees Act, 1870 (7 of 1870). For court fee,
see now Art. 7 of Sch. II to that Act)* * * 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.
50. Service of petition.
Every petition under this Act shall be served on the party to be affected
thereby, either within or without (Subs. by the Central Laws (Statute
Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the
14th October, 1955), for “the Provinces and the Capital of the Federation “
which was subs. for “British India “ by A. O., 1949, Arts. 3(2) and 4.)
[Pakistan
Provided that the Court may dispense with such service altogether in case it seems necessary or expedient so to do.
Provided that the Court may dispense with such service altogether in case it seems necessary or expedient so to do.
51. Mode of taking evidence. 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
part, 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.
52. Competence of husband and wife to give evidence as to
cruelty or desertion. On any petition presented by a
wife, praying that her marriage may, be dissolved by reason of her husband
having been guilty of adultery coupled with cruelty, or of adultery coupled
with desertion, without reasonable excuse, the husband and wife respectively
shall be competent and compellable to give evidence of or relating to such
cruelty on desertion.
53. Power to close doors.
The whole or any part of ply proceeding under this Act may be heard if the
Court thinks fit, with closed doors.
54. Power to adjourn.
The Court may from time to time adjourn the hearing of any petition under this
Act, and flay require further evidence thereon if it sees fit so to do.(
For court‑fee of memorandum of appeal, see now Art. 7 of Sch. II to the Court
Fees Act, 1870 (7 of 180).)
55. Enforcement of and appeals from orders and decrees. 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:---
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:
No appeals as to costs. Provided
also that there shall be no appeal on the subject of costs only.
56 Appeal to Queen in Council. Any person may appeal to (Subs by A O , 1961, Art 2
& Sch., for “Her Majesty in Council” (with effect from the 23rd March,
1956).)[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 nisa) 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 (Subs by A O , 1961, Art 2 & Sch., for
“Her Majesty in Council” (with effect from the 23rd March, 1956).) [the
Supreme Court],
57. Liberty to parties to
marry again When six months after the date of
an order of a High Court confirming the decree for a dissolution of marriage
made by a District Judge have expired:---
or when six months after the date of any decree of a High
Court dissolving a marriage have expired, and no appeal has been presented
against such decree to the High Court in its appellate jurisdiction, 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:---
Provided that no appeal to (Subs. by A. O., 1961,
Art. 2 and Sch. for “Her Majesty in Council”, (with effect from the 23rd March,
1956).)[the Supreme Court] has been ‑presented against any such order or
decree.
When such appeal has been dismissed, or when in the result
thereof the 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.
XIII: RE‑MARRIAGE
58. English clergyman not compelled to solemnize marriages
of persons divorced for adultery.
No clergyman in Holy Orders of the (The word “United “ rep. by the
Repealing Act, 1873 (12 of 1873).)* Church of England (The words
“and Ireland
59. English minister refusing to perform ceremony to permit
use of his church. When any minister of any church or
chapel of the said (The word “United “ rep. by the Repealing Act, 1873
(12 of 1873)) 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
60. Decree for separation or protection order valid as to
persons dealing with wife before reversal.
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.
61. Bar of suit for criminal conversation. 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.
62. Power to make rules.
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 (See
now the Code of Civil Procedure, 1908 (Act 5 of 1908).).
All such rules, alterations and additions shall be published
in the (Subs. by A. O., 1937, for “local official Gazette”.)
[Official Gazette]
THE MARRIAGES VALIDATION ACT, 1892
ACT No. II of 1892
(Short
title given by the Short Titles Act, 1897 (14 of 1897)
For Statement of Objects and Reasons, see Gazette of India, 1891,
Pt. V, p. 142; for Report of the Select Committee, see ibid., 1892, Pt. V, p. 5
and for Proceeding, ill Council, see ibid., 1891, Pt. VI, p. 117. and ibid.
1892, Pt. VI, p. 11.
This Act has been declared to be in force in Baluchistan by the British Baluchistan Laws Regulation,
1913 (2 of 1913).
It has also been extended to the Leased Areas of
Baluchistan, see the Leased Areas (Laws) Order, 1950 (G.G.O. 3 of 1953); and
applied in the Federated Areas of Baluchistan, see Gazette of India, 1937, Pt.
I, p. 1499.
This Act has been and shall be deemed to have been extended
to the whole of Pakistan
[29th January, 1892]
An Act to validate certain marriages
solemnized under Part VI of the Christian Marriage Act, 1872.
WHEREAS provision is made in Part VI of the Christian
Marriage Act, 1872, for the solemnization of marriages between persons of whom
both are Native Christians, but not of marriages between persons of whom one
only is a Native Christian XV of 1872;
And whereas persons licensed under section 9 of the said Act
have in divers parts of (Subs. by Ord. 21 of 1960, s. 3 and 2nd Sch.
(with effect from the 14th October, 1955), for “the Provinces and the Capital
of the Federation” which had been subs. by A. O., 1949, Arts. 3(2) and 4, for
“British India”.)[Pakistan] through ignorance of the law, permitted
marriages to be solemnized in their presence under the said Part between
persons of whom one is a Native Christian and the other is not a Native
Christian;
And whereas it is expedient that such marriages, having been
solemnized in good faith, should be validated;
1. [Commencement] Rep by the Repealing
and Amending Act, 1914 (10 of 1914)
2 Definition
In this Act the expression “Native Christian” has the same meaning as in the
Christian Marriage Act, 1872, XV of 1872.
3. Validation of irregular marriages. All marriages which have already been solemnized under Part
VI of the Christian Marriage Act, 1872, between persons of whom one only was a
Native Christian, shall be as good and valid in law as if such marriages had
been solemnized between persons of whom both were Native Christians XV of
1872:---
Provided that nothing in this section shall apply to any
marriage which had been judicially declared to be null and void, or to any case
where either of the parties has, since the solemnization of such marriage and
prior to the commencement of this Act, contracted a valid marriage.
4. Validation of records of irregular marriages. Certificates of marriages which are declared by the last
foregoing section to be good and valid in law, and register-books, and
certified copies of true and duly authenticated extracts there from, deposited
in compliance with the law for the time being in force, in so far as the
register-books and extracts relate to such marriages as aforesaid, shall be
received as evidence of such marriages as if such marriages had been solemnized
between persons of whom both were Native Christians.
5. Application of Act to marriages under Act V of 1865. References in this Act to the Christian Marriage Act, 1872,
shall, so far as may be requisite, be construed as applying also to the
corresponding portions of the (Rep. (except as to Straits Settlements)
by the Christian Marriage Act, 1872 (15 of 1872).)Indian Marriage Act,
1865, XV of 1872 V of 1865
6 Penalty for solemnizing irregular marriages If any person licensed under section 9 of the said Act to
grant certificates of marriage between Native Christians shall at any time
after the commencement of this Act solemnize or affect to solemnize any
marriage under Part VI of the said Act or grant any such certificate as therein
mentioned, knowing that one of the parties to such marriage or affected
marriage was at the date of such solemnization not a Christian, he shall be
liable to have his license cancelled, and in addition thereto he shall be
deemed to have been guilty of an offence prohibited by section 73 of the said
Act, and shall be punishable accordingly.
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