THE DIVORCE ACT, 1869, CHAPTER III

CHAPTER III

DISSOLUTION OF MARRIAGE

When husband may petition for dissolution10. Any husband may present a petition to the District Court or to the High Court Division, 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 dissolutionAny wife may present a petition to the District court or to the High Court Division, 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 mensa et toro,

or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

Contents of petitionEvery 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.

Adulterer to be co-respondent11. Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court:-

(1) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed;

(2) that the name of the alleged adulterer is unknown to the petitioner although he has made due efforts to discover it;

(3) that the alleged adulterer is dead.

Court to be satisfied of absence of collusion12. Upon any such petition for the dissolution of a marriage, the Court shall satisfy itself, so far as reasonable can, not only as to the facts alleged, but also whether or not the petitioner has been on 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.

Dismissal of petition13. 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 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 Division.

Power to Court to pronounce decree for dissolving marriage14. 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 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.

CondonationNo adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal co-habitation has been resumed or continued.

Relief in case of opposition on certain grounds15. 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.

Decrees for dissolution to be nisi16. Every decree for a dissolution of marriage made by High Court Division, not being a confirmation of a decree of a District Court, shall, in the first instance, be a decree nisi, not to make absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court Division by general or special order from time to time directs.

CollusionDuring that period any person shall be at liberty, in such manner as the High Court Division 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 Division 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 Division may dismiss the suit.

Confirmation of decree for dissolution by District Judge17. Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court Division.

Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court Division 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 Division 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 Division, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made or such evidence to be taken.

The result of such enquiry and the additional evidence shall be certified to the High Court Division by the District Judge, and the High Court Division 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 Division 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 Division by general or special order from time to time directs, to apply to the High Court Division to remove the suit under section 8, and the High Court Division shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in section 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.

Appointment of officer to exercise duties of King’s Proctor8[17A. The Government may appoint an officer who shall, within the jurisdiction of the High Court Division 9[* * *], have the like right of showing cause why a decree for the disso-lution 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 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.

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