« EelmineJätka »
(I-Preliminary. Sec. 3.)
[in the Non-Regulation provinces, other than Sindh and the areas for the time being comprised within the local limits of the ordinary civil jurisdiction of the Recorder of Rangoon and of the civil jurisdiction of the Court of the Judge of the Town of Moulmaina Commissioner of a Division:
in Sindh-the Judicial Commissioner of that province;
in the areas aforesaid the 3 Recorder of Rangoon and the Judge of the Town of Moulmain respectively ;]
and in any place in the dominions of the Princes and States aforesaid-such officer as the Governor General of India in Council shall from time to time appoint in this behalf by notification in the Gazette of India, and, in the absence of such officer, the High Court in the exercise of its original jurisdiction under this Act:
(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, or of whose jurisdiction under this Act, 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:
1 Repealed in the Punjab, so far as it defines District Judge to mean the “Commissioner of a Division", see section 2 of the Punjab Courts Act, 1884 (XVIII of 1884). In that Province, the Divisional Court is, for the purposes of this Act, to be deemed to be the District Court for all districts comprised in a division, see ibid, s. 23, cl. (a). For Act XVIII of 1884, see the revised edition, as modified up to the 1st April, 1891, published by the Legislative Department.
In Oudh, the Judicial Commissioner is, for the purposes of this Act, to be deemed the Commissioner of the Division, see s. 27 of the Oudh Civil Courts Act, 1879 (XIII of 1879), printed, North-Western Provinces and Oudh Code, Ed. 1892, p. 353.
These words were substituted for the words "in the Non-Regulation provinces, other than British Burma and Sindh-a Commissioner of a Division";
"in Pegu-the Recorder of Rangoon ;
"in Arakan-the Recorder at Rangoon until a Recorder's Court is established at Akyab, and thenceforward the Recorder at Akyab;"
"in the Tenasserim Provinces-the Recorder at Moulmain ;"
"in Sindh-the Judicial Commissioner in that Province," by s. 97 and the second schedule to the Lower Burma Courts Act, 1889 (XI of 1889), printed, Burma Code, Ed. 1889, p. 299.
2 In the Santhal Parganas, the Commissioner has been declared to be the District Judge, and the High Court at Calcutta to be the High Court, for the purposes of the Act, see s. 15 (3) of the Santhal Parganas Justice Regulation, 1893 (V of 1893).
The Court of the Recorder of Rangoon for the purposes of s. 527 of the Code of Criminal Procedure, 1898 (Act V of 1898), and in respect of the Magistrates within the local limits of its ordinary civil jurisdiction, is to be deemed a High Court, see s. 48 of the Lower Burma Courts Act, 1889 (XI of 1889), printed, Burma Code, Ed. 1889, p. 363.
For notifications issued under the power conferred by this clause, see p. 43 of the Western India Volume of the Native States Lists, Ed. 1895, and Gazette of India, 1893, Pt. I, p. 510, in respect of Kathiawar and the Nizam's Dominions respectively,
(11-Jurisdiction. Secs. 4-7.)
(e) "Incestuous adultery" means adultery committed by a husband with "Incestuous adultery." 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" means adultery with the same woman with "Bigamy whom the bigamy was committed :
with adul tery." "Marriage with another
(8) "Marriage with another woman means marriage of any person, being married, to any other person, during the life of the former wife, whether woman." the second marriage shall have taken place within the dominions of Her Majesty 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 property to which "Property." 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.
4. The jurisdiction now exercised by the High Courts in respect of divorce Matrimonial a mensá et toro, and in all other causes, suits and matters matrimonial, shall jurisdiction of High Courts be exercised by such Courts and by the District Courts subject to the provi- to be exercised subject to sions in this Act contained, and not otherwise: except so far as relates to the Act. granting of marriage-licenses, which may be granted as if this Act had not Exception. been passed.
of decrees or
5. Any decree or order of the late Supreme Court of Judicature at Enforcement Calcutta, Madras or Bombay sitting on the ecclesiastical side, or of any of orders made the said High Courts sitting in the exercise of their matrimonial jurisdiction, heretofore by. Supreme or respectively, in any cause or matter matrimonial, may be enforced and dealt High Court. 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. All suits and proceedings in causes and matters matrimonial, which Pending suits. 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. Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court
Court to act ou principles
Extraordinary jurisdiction of High Court.
Power to transfer suits.
When husband may petition for dissolution.
When wife may petition for dissolu
Contents of petition,
(11.-Jurisdiction. Secs. 8-9. III.-Dissolution of Marriage. Sec. 10.)
for Divorce and Matrimonial Causes in England for the time being acts and gives relief.
8. 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.
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. 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. 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.
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 mensá et toro,
or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.
(III-Dissolution of Marriage. Secs. 11-14.)
11. Upon any such petition presented by a husband, the petitioner shall Adulterer to make the alleged adulterer a co-respondent to the said petition, unless he is ent. 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. 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 counter-charge which may be made against the petitioner.
13. In case the Court, on the evidence in relation to any such petition, is satisfied that the petitioner's case has not been proved, or is not satisfied that the alleged adultery has been committed,
or finds that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,
or that the petition is presented or prosecuted in collusion with either of the respondents,
then and in any of the said cases the Court shall dismiss the petition. When a petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court.
14. 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,
Court to be absence of
Dismissal of petition.
Power to Court to pronounce decree for dissolving marriage.
Relief in case of opposition on certain grounds.
Decrees for dissolution to
(III. Dissolution of Marriage. Secs. 15-16.)
or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition,
or of cruelty towards the other party to the marriage,
or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct of or towards the other party as has conduced to the adultery.
No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.
15. 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. Every decree for a dissolution of marriage made by a High Court, not being a confirmation of a decree of a 1District Court, shall, in the first instance, be a decree nisi, not to be made absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs.
During that period any person shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not being brought before the Court.
On cause being so shown, the Court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as justice may demand.
The High Court may order the costs of Counsel and witnesses, and otherwise arising from such cause being shown, to be paid by the parties or such one or more of them as it thinks fit, including a wife if she have separate property.
Whenever a decree nisi has been made, and the petitioner fails, within a reasonable time, to move to have such decree made absolute, the High Court may dismiss the suit.
As to District Courts under this Act in the Punjab, see s. 23 of the Punjab Courts Act, 1884 (XVIII of 1884), in the revised edition, as modified up to the 1st April, 1891, published by the Legislative Department,