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DIVORCE ACT

Ministry of Law and Justice

Act nº 4 of 1869


  • Chapter 1
  • Chapter 2
  • Chapter 3
  • Chapter 4
  • Chapter 5
  • Chapter 6
  • Chapter 7
  • Chapter 8
  • Chapter 9
  • Chapter 10
  • Chapter 11
  • Chapter 12
  • Chapter 13
  • Chapter 14
  • Schedules
  • Act nº 4 of 1869

Preamble

THE INDIAN DIVORCE ACT, 18691

[Act, No. 4 of 1869]

[26th February, 1869]

PREAMBLE

An Act to amend the law relating to Divorce and Matrimonial Causes 2 [* * *]

Whereas it is expedient to amend the law relating to the divorce of persons professing the Cristian religion, and to confer upon certain Courts jurisdiction in matters matrimonial; it is hereby enacted as follows:-

1. For Statement of Objects and Reasons, see Calcutta Gazette, 1863, Page 173; for Report of Select Committee, see Gazette of India, 1869, Page 192; for Proceedings in Council, see Calcutta Gazette 1862, Supplement, Page 463, Calcutta Gazette, 1863, Supplement, Page 43, and Gazette of India, 1869, Supplement, Page 291.

2. The words "in India " Omitted by Act 3 of 1951, section 3 and Schedule.


Chapter 1

Section 1. Short title, commencement of the Act

This Act may be called the1[***]Divorce Act, and shall come into operation on the first day of April, 1869.

1.The word "Indian" omitted by Act 51 of 2001, section 2 (w.e.f. 3-10-2001).


Section 2. Extent of Act

1[This Act extends to2[the whole of India3[except the State of Jammu and Kashmir]]].

Extent of power to grant relief generally, -

4[Nothing hereinafter contained shall authorise any court to grant any relief under this Act except where the petitioner5[or respondent] professes the Christian religion,

and to make decrees of dissolution-

or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the time when the petition is presented,

or of nullity-

or to make decrees of nullity of marriage except where the marriage has been solemnized in India and the petitioner is resident in India at the time of presenting the petition,

or to grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition.]

1 . Substituted by the A.O. 1948, for the original first paragraph.

2. Substituted by The A.O. 1950, for certain words.

3. Substituted by Act 3 of 1951, Section 3 and Schedule, for "except Part BStates".

4. Substituted by Act 25 of 1926, Section 2, for Paragraphs 2, 3 and 4.

5. Inserted by Act 30 of 1927, Section 2.


Section 3. Interpretation-clause

In this Act, unless there be something repugnant in the subject or context, -

1 [(1) "High Court" means with reference to any area: -

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

2 [(b) in Delhi, the High Court of Delhi;

3 [***]]

(c) in Manipur and Tripura, the High Court of Assam;

(d) in the Andaman and Nicobar Islands, the High Court at Calcutta;

(e) in 4 [Lakshadweep], the High Court of Kerala;

5 [(ee) in Chandigarh, the High Court of Punjab and Haryana;]

and in the case of any petition under this Act, "High Court" means the High Court for the area where the husband and wife reside or last resided together:]

6 [(2) "District Judge" means a Judge of a principal civil court of original jurisdiction however designated:]

(3) "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, 7 [or of whose jurisdiction under this Act the marriage was solemnized or] the husband and wife reside or last resided together:

(4) "Court" means the High Court or the District Court, as the case may be:

(5) "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:

8 [***]

(8) "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 9 [India] or elsewhere:

(9) "desertion", implies an abandonment against the wish of the person charging it; and

(10) "property" includes in the case of a wife any properly 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 interstate shall be deemed to be the time at which any such wife becomes entitled as executrix or administrator.

1. Substituted by A.O. (No.2) 1956, for clause (1).

2. Clauses (b) and (bb) substituted for clause (b) by the Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1968, (w.e.f. 1-11-1966).

3. Clause (bb) omitted by Himachal Pradesh Adoption of Laws (State and Concurrent Subjects) Order, 1973, ) (w.r.e.f. 1-11-1966).

4. Substituted by the Laccadive, Minicoy and Admindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974, Section 3 and Schedule, for "Laccadive, Minicoy and Admindivi Islands" (w.e.f. 1-11-1973).

5. Inserted by the Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968, Section 3 and Schedule (w.e.f. 1-11-1966).

6. Substituted by the A.O. 1950, for clause (2).

7. Substituted by Act 51 of 2001, section 3, for "or of whose jurisdiction under this Act" (w.e.f. 03.10.2001).

8. Clauses (6) and (7) omitted by Act 51 of 2001, section 3 (w.e.f. 03.10.2001).

9. Substituted by the A.O. 1950, for "the dominions of Her Majesty".


Chapter 2

Section 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.

Section 5. Enforcement of decrees or orders made heretofore by Supreme Court 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 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.

Section 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.

Section 7. Court to act on principles of English Divorce Court(Repealed)

[Reply by the Indian Divorce (Amendment) Act, (51 of 2001, section 4 (w.e.f. 3-10-2001).]

Section 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 - This 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

Section 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.

Chapter 3

Section 10. Grounds for dissolution of marriage

1 [10. Grounds for dissolution of marriage

(1) Any marriage solemnized, whether before or after the commencement2 of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the Dis­trict Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent --

(i) has committed adultery; or

(ii) has ceased to be Christian by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

(v) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communi­cable form; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

(vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or

(viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or

(ix) has deserted the petitioner for at least two years immediately preced­ing the presentation of the petition; or

(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.

(2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality."].

1. Substituted by Act 51 of 2001, section 5, for section 10 (w.e.f. 3-10-2001).

2. 3rd October, 2001.


Section 10A. Dissolution of marriage by mutual consent

1[10A . Dissolution of marriage by mutual consent

( 1 ) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement2of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.

( 2 ) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section ( 1 ) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the me antime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.". ]

1. Inserted by Act 51 of 2001, section 6, (w.e.f. 3-10-2001).

2. 3rd October, 2001.