The Divorce Act, 1869
(4 of 1869)
Last Updated 23rd February, 2019 [026]
LEGISLATIVE HISTORY ▼ |
Chapter I
Preliminary
1. Short title Commencement of Act. - This Act may be called The [* * *] Divorce Act, and shall come into operation on the first day of April, 1869.
Object & Reasons▼ |
(a) in a State, the High Court for that State;
](c) in Manipur and Tripura, the High Court of [Assam;]
(d) in the Andaman and Nicobar islands, the High Court at Calcutta;
(e) in the [Lakshadweep], the High Court of Kerala;
[(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;] (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 marriage was solemnized or], 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; [* * *] [* * *] (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 [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 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 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. 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. - [Omitted by the Indian Divorce Amendment Act, 2001 (51 of 2001) section 4 (w.e.f. 3-10-2001).]
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III
Dissolution of Marriage
[10. Grounds for dissolution of marriage. - (1) Any marriage solemnized, whether before or after the commencement 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
(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.]
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(a) that the wife, being the respondent is leading the life of a prostitute or the husband, being respondent is leading an immoral life and that the petitioner knows of no person with whom the adultery has been committed;
(b) that the name of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has made due efforts to discover it;
(c) that the alleged adulterer or adulteress is dead. ]
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IV
Nullity Of Marriage
18. Petition for decree of nullity. - Any husband or wife may present a petition to the District [* * *], 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 District 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. [Section 20 omitted by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), section 13 (w.e.f. 3-10-2001)." ]
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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 [* * *] 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 [* * *]; 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 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, 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.Reversal of Decree of Separation
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, 1865 (10 of 1865)], does not apply, may, when deserted by her husband, present a petition to the District Court [* * *], at any time after such desertion, for an order to protect any property which she may 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 thinks fit so to do, may discharge or vary the order accordingly. 30. Liability of husband seizing wifes 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. Wifes 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 [* * *], 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. - [Section 34 omitted by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), section 19 (w.e.f. 3-10-2001).]
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IX
Alimony
36. Alimony pendente lite. - 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 expenses of the proceedings and 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 the expenses of the proceedings and alimony pending the suit] as it may deem just: [* * *] [Provided that the petition for the expenses of the proceedings and alimony pending the suit, shall, as far as possible, be disposed of within sixty days of service of such petition on the husband.]
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X
Settlements
39. Power to order settlement of wifes property for benefit of husband and children. - [Omitted by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), section 23 (w.e.f. 3-10-2001).]
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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: [Provided that the application with respect to the maintenance and education of the minor children pending the suit, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.] 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 provisions, 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 a District Court, the Court may, from time to time before making its decree, make such interim orders as it may deem 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. - [Where a decree of dissolution or nullity of marriage has been passed, the District Court 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 the party and party shall be regulated by 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. 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 [* * *] shall [* * *] 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 the 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 [* * *] 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 [India], in such manner as the High Court by general or special order from time to time directs: 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 party, 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 husband or a wife, praying that his or her marriage may be dissolved by reason of his wife or her husband, as the case may be, having been guilty of adultery, cruelty or desertion], the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion. 53. Power to close doors. - The whole or any part of any 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 may require further evidence thereon if it sees fit so to do. 55. Enforcement of, and appeal 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: [* * *]
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XIII
Re-marriage
57. Liberty to parties to marry again. - Where a decree for dissolution or nullity of marriage has been passed and either the time for appeal has expired without an appeal having been presented to any Court including the Supreme Court or an appeal has been presented but has been dismissed and the decree or dismissal has become final, it shall be lawful for either party to the marriage to marry again.
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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 or 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, 1908 (5 of 1908)]. All such rules, alterations and additions shall be published in the Official Gazette.Schedule of forms
No. 1Petition by Husband for a Dissolution of Marriage with Damages against Co-respondent, by Reason of Adultery (See sections 10 and 34) In the *(High) Court of................................................................................................................................................... To the *Honble Mr. Justice........................................................... [or To the Judge of ..................................] The.....................................day of..................................... The petition of A.B., of Sheweth, 1. That your petitioner was on the.....................................day of.....................................was lawfully married to C.B., then C.D., spinster, at.....................................* 2. That from his said marriage, your petitioner lived and cohabited with his said wife at....................................and at....................................in...................................and lastly at...................................., in.....................................and that your petitioner and his said wife have had issue of their said marriage, whom........................................sons only survive, aged respectively.....................................and.....................................years. 3. That during the.....................................years immediately preceding the.....................................day of.............................................X.Y., was constantly, with few exceptions, residing in the house of your petitioner at.....................................aforesaid, and that on diverse occasions during the said period, the dates of which are unknown to your petitioner, the said C.B., in your petitioners said house committed adultery with the said X.Y. 4. That no collusion or connivance exists between me and my said wife for the purpose of obtaining a dissolution of our said marriage or for any other purpose. Your petitioner, therefore, prays that this (Honble) Court will decree a dissolution of the said marriage and that the said X.Y., do pay the sum of rupees 5,000 as damages by reason of his having committed adultery with your petitioners said wife, such damages to be paid to your petitioner, or otherwise paid or applied as to this (Honble) Court seems fit. (Signed) A.B.** Form of verification I., A.B., the petitioner named in the above petition, do declare that what is stated therein is true to the best of my information and belief. No. 2Respondents Statement in Answer to No. 1 In the Court of........................................the........................................day of........................................ Between A.B., petitioner C.B., respondent, and X.Y., co-respondent. C.B., the respondent, by D.E., her attorney [or vakil" , in answer to the petition of A.B., says that she denies that she has on diverse or any occasions committed adultery with X.Y., as alleged in the third paragraph of the said petition. Wherefore the respondent prays that this (Honble) Court will reject the said petition. (Signed) C.B. No. 3Co-respondents Statement in Answer to No. 1 In the (High) Court of........................................the........................................day of........................................ Between A.B., petitioner C.B., respondent, and X.Y., co-respondent. X.Y. , the co-respondent, in answer to the petition filed in this cause, saith that he denies that he committed adultery with the said C.B., as alleged in the said petition. Wherefore the said X.Y., prays that this (Honble) Court will reject the prayer of the said petitioner and order him to pay the costs of and incident to the said petition. (Signed) X.Y. No. 4Petition for Decree of Nullity of Marriage(See section 18)
In the (High) Court of.................................................................................................................................................... To the Honble Mr. Justice...........................................................or To the Judge of ................................... The.....................................day of..................................... The petition of A.B., falsely called A.D. Sheweth, 1. That on the.....................................day of.....................................your petitioner then a spinster, eighteen years of age, was married in fact, though not in law, to C.D., then a bachelor of about thirty years of age, at [some place in India. 2. That from the said.....................................................day of....................................................until the month of...................................................., your petitioner lived and cohabited with the said C.D., at diverse places, and particularly at.....................................aforesaid. 3. That the said C.D., has never consummated the said pretended marriage by carnal copulation. 4. That at the time of the celebration of your petitioners said pretended marriage the said C.D. was, by reason of his impotency or malformation, legally incompetent to enter into the contract of marriage. 5. That there is no collusion or connivance between her and the said C.D., with respect to the subject of this suit. Your petitioner therefore prays that this (Honble) Court will declare that the said marriage is null and void. (Signed) A.B. Form of verification.See No. 1 No. 5Petition by Wife for Judicial Separation on the Ground of