THE DIVORCE ACT, 1869
List of Amending Acts/Adaptation Orders
1. Court-fees Act, 1870 (7 of 1870)
2. Repealing Act, 1873 (12 of 1873)
3. Indian Divorce (Amendment) Act, 1912 (10 of 1912)
4. Indian Divorce (Amendment) Act, 1926 (25 of 1926)
5. Indian Divorce (Second Amendment) Act, 1927 (30 of 1927)
6. Government of India (Adaptation of Indian Laws) Order, 1937
7. Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948
8. Adaptation of Laws Order, 1950 ,
9. Part B States (Laws) Act, 1951 (3 of 1951)
10. Adaptation of Laws (No. 2) Order, 1956
11. Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1968
12. Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968.
13. Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1973
14. Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974
15. Marriage Laws (Amendment) Act, 2001 (49 of 2001)
16. Indian Divorce (Amendment) Act, 2001 (51 of 2001)
THE INDIAN CHRISTIAN MARRIAGE ACT, 1872
List of Amending Acts/Adaptation Orders
• 1. Repealing Act, 1874 (16 of 1874)
2. Births, Deaths and Marriages Registration Act, 1886 (6 of 1886)
3. Indian Christian Marriage Act (1872) Amendment Act, 1891 (2 of 1891)
4. Amending Act, 1891 (12 of 1891)
5. Repealing and Amending Act, 1903(1 of 1903)
6. Indian Christian Marriage (Amendment) Act, 1911 (13 of 1911)
7. Repealing and Amending Act, 1928 (18 of 1928)
8. Government of India (Adaptation of Indian Laws) Order, 1937
9. Repealing Act, 1938 (1 of 1938)
10. Indian Independence (Adaptation of Central Acts and Ordinances) Order,
1948
11. Adaptation of Laws Order, 1950
12. Part B States (Laws) Act, 1951 (3 of 1951)
13. Repealing and Amending Act, 1952 (48 of 1952)
14. Adaptation of Laws Order, 1956
15. Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)
16. Delegated Legislation Provisions (Amendment) Act, 1983 (20 of 1983)
THE ‘[***] DIVORCE ACT, 18692 (4OF1869)
[26th February, 1869] An Act to amend the law relating to Divorce and Matrimonial Causes 3[* * *]
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:—
Statement of Objects and Reasons.—“The object of this Bill is to place the Matrimonial Law administered by the High Courts, in the exercise of their original jurisdiction, on the same footing as the Matrimonial Law administered by the Court for Divorce and Matrimonial Causes in England.
The 9th Section of the Act of Parliament for establishing High Courts of Judicature in India, (24 and 25 Vie. Ch. 104) provides that the High Courts shall exercise such Matrimonial Jurisdiction as Her Majesty by Letters Patent shall grant and direct. Under the authority thus conferred by Parliament, the 35th Section of the Letters Patent, constituting the High Courts of Judicature, provides as follows:—
“And we do further ordain that the said High Court of Judicature at Fort William in Bengal shall have jurisdiction in matters Matrimonial between our subjects professing the Christian religion, and that such jurisdiction shall extend to the local limits within which the Supreme Court now has Ecclesiastical Jurisdiction. Provided always that nothing herein contained shall be held to interfere with the exercise of any Jurisdiction in matters matrimonial by any Court not established by Royal Charter within the said Presidency lawfully possessed thereof.”
In the Despatch of the Secretary of State transmitting the Letters Patent (Letter from Secretary of State, Judicial No. 24, dated 14-5-1862), the 33rd and 34th paragraphs are to the following effect:—
33. “Her Majesty’s Government are desirous of placing the Christian subjects of the Crown within the Presidency in the same position under the High Court, as to matters matrimonial in general as they now are under the Supreme Court, and this they believe to be effected by Clause 35 of the Charter. But they consider expedient that the High Court should possess, in addition, the powers of decreeing divorce, which the Supreme Court does not possess, in other words, that the High Court should have the same jurisdiction as the Court for Divorce and Matrimonial Causes in England, established in virtue of the Act 20 and 21 Vie. C. 85, and in regard to which further provisions were made by 22 and 23 Vie. C. 61, and
1. The word “Indian” omitted by Act 51 of 2001, S. 2 (w.e.f. 3-10-2001).
2. The Act has been declared in force in the Sonthal Parganas by S. 3 of the Sonthal Parganas Settlement Regulation (2 of 1872) as amended by the Sonthal Parganas Justice and Laws Regulation (3 of 1899), ibid.
It has been declared by notification under S. 3 (a) of the Scheduled Districts Act (14 of 1874), to be in force in the following Scheduled Districts, namely:-—
The District of Hazaribagh Lohardaga and Manbhum and Pargana Dhalbhum and the Kolhan in the District of Singbhum, see Gazette of India, 1881, Pt. I, p. 504.
The District of Lohardaga included that time the present district of Palamau which was separated in 1894. The District of Lohardaga is now called the Ranchi District, see Calcutta Gazette, 1899, Pt. I, p. 44.
The Scheduled District in Ganjam and Vizagapatnam, see Fort St. George Gazette, 1898, Pt. I,p. 666.
The Act has been extended to the new Provinces and merged States by the Merged States (Laws) Act, 59 of 1949 and to the States of Manipur, Tripura and Vindhya Pradesh by Act 30 of 1950. Manipur and Tripura are full-fledged States now, see Act 81 of 1971. Vindhya Pradesh is a part of the State of Madhya Pradesh now, see Act 37 of 1956.
3. The words “In India” omitted by Act 3 of 1951.
DIVORCE ACT, 1869
23 and 24 Vie. C. 144. The Act of Parliament for establishing the High Court, however, does not purport to give to the Crown clearly could not so import, such for instance as those which prescribe the period of remarriage, and those which exempt from punishment clergymen refusing to remarry adulterers. All these are, in truth, matters for Indian legislation, and I request that you will immediately take the subject into your consideration and introduce into your Council a Bill for conferring upon the High Court the jurisdiction and powers of the Divorce Court in England, one of the provisions of which should be to give an appeal to the Privy Council in those cases in which the Divorce Court Act gives an appeal to the House of Lords.
34. The objects of the proviso at the end of Clause 35 is to obviate any doubt that may possibly arise as to whether, by vesting the High Court with the powers of the Court for Divorce and Matrimonial Causes in England, it was intended to take away from the Courts within divisions of the Presidency not established by Royal Charter any jurisdiction which they might have in matters matrimonial, as for instance, in a suit for alimony between Armenians or Native Christians. With any such jurisdiction it is not intended to interfere.”
In addition to the Act of Parliament mentioned by the Secretary of State as regulating the jurisdiction of the English Divorce Court the Statutes 25 and 26 Vie. Ch. 81 has been passed in the year just expired (1862). The object of this Statute is to render perpetual 23 and 24 Vie. Ch. 144 the duration of which had been originally limited to twoyears.
The draft of a Bill has been prepared to give effect to the Secretary of State instructions, but some variations from the English Statutes in respect of Procedure have been adopted.
With a view to uniformity in practice in the several branches of jurisdiction, the Bill provides that the Procedure of the Code of Civil Procedure shall be followed, instead of the Rules of Her Majesty’s Court for Divorce and Matrimonial Causes in England and it omits the provision in 20 and 21 Vie. Ch. 85 respecting the occasional trial of questions of fact by juries.
In respect of fees, it has been considered that the Act 20 of 1862 (lately continued by the Governor-General in Council for another year) renders special legislation unnecessary.
The power of intervening in suits, given by 23 and 24 Vie. Ch. 144, to the Attorney General and the Queen’s Proctor is, in this Bill, given to the Advocate General and the Solicitor to Government.
There are also other variations of a minor and verbal character.
The Draft Bill having been submitted to the Judges of the several High Courts, with request that they would favour the Government with their opinions on it communications have been received, from the Judges at Calcutta and Bombay and will be laid before the Council. In these letters there are several important suggestions, and the Honourable the Chief Justice of the High Court at Calcutta has intimated that he considers it doubtful whether decrees by the High Court under the proposed Act, dissolving the marriages of persons who have been married in England would have legal effect there. The question is one of considerable difficulty as well as of great importance, and has been stated to the Secretary of State, with the view of obtaining the opinion of Her Majesty’s Law Officers, and, if necessary, some legislative measure to remove all doubts.”—Calcutta Gazette, 1863, p. 173.
Amendment Act 49 of 2001—Statement of Objects and Reasons.—The Law Commission of India in its 27th , 54th and 129th Reports and the Committee on Subordinate Legislation (llth Lok Sabha) had recommended that the tendency to obtain the adjournments on frivolous grounds in the cases pending in Courts should be curbed. The Malimath Committee also recommended that remedial measures should be taken immediately for speedy disposal of the cases pending in Courts..
2. Sections 36 and 41 of the Indian Divorce Act, 1869, sections 39 and 49 of the Parsi Marriage and Divorce Act, 1936, sections 36 and 38 of the Special Marriage Act, 1954 and sections 24 and 26 of the Hindu Marriage Act, 1955 do not contain any time-limit for
DIVORCE ACT, 1869
disposal of applications for alimony pendente lite or the maintenance and education of minor children. More than 670 cases are understood to be pending in various High Courts under section 24 of the Hindu Marriage Act, 1955.
3. As part of the judicial reforms process, it is proposed to make necessary amendments in enactments mentioned in paragraph 2 with a view toi making provisions that an _ r ication for alimony pendente lite or the maintenance and education of minor children ?nall be disposed of within sixty days from the date of service of notice on the respondent.
Amendment Act 51 of 2001—Statement of Objects and Reasons.—The Law Commission :r India in its 164th Report on “The Indian Divorce Act (4 of 1869)” presented to the Government in November, 1998, has, inter alia, recommended that Parliament may enact a comprehensive law governing marriage and divorce and other allied aspects of the Christians in India. The Commission, relying on the judgments and observations of certain High Courts, has also urged the Central Government to take immediate measures—
(/’) to amend section 10 of the Indian Divorce Act, 1869 relating to grounds of dissolution of marriages so that the female spouses are not discriminated vis-a-vis male spouses in obtaining a decree of dissolution of marriage;
(ii) to amend suitably sections 17 and 20 of the Act to do away with the procedural
-squirement of obtaining confirmation from the High Court in respect of a decree of : ^solution of marriage or decree of nullity of marriage as such a procedure is long-drawn jnd strenuous.
2. With a view to ascertaining the views of the Christian community on proposal for a
unified law on marriage and divorce, the Central Government convened a meeting of
leaders of prominent Churches in India and the Members of Parliament belonging to the
Christian community on the 28th April, 2000 but there was no consensus for bringing in a
comprehensive legislation on Christian marriages and matrimonial causes. However, there
is no opposition from any one to amend sections 10,17 and 20 of the Indian Divorce Act,
1869 suitably to remove the gender inequality as contained in section 10 and to do away
with the procedural delays in obtaining divorce due to the provisions contained in sections
17 and 20 of the Act. The Government, therefore, proposes to make suitable changes in the
Indian Divorce Act, 1869 for removing hardship to all concerned.
3. The Commission on Review of Administrative Laws which was set up by the Central Govemment on the 8th May, 1998 has, inter alia, recommended repeal of various enactments including three British Statutes relating to Christian Personal Law still in force. It is – proposed to repeal these enactments also as they have become obsolete.
I—PRELIMINARY
1 Short title. Commencement of Act.—This Act may be called the 4[* * *] Divorce act, and shall come into operation on the first day of April, 1869.
1 Extent of Act.—This Act exten ds to 5[the whole of India except the State of Jammu and Kashmir].
Extent of power to grant relief generally.—6[Nothing hereinafter contained shall authorise any Court to grant any relief under this Act, except where the petitioner 7[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,
4 Theword “Indian” omitted by Act 51 of 2001, S. 2 (w.e.f. 3-10-2001). ‘
5. Substituted by A.0.1950 and Act 3 of 1951.
6- This and the succeeding three paras were substituted for the 2nd, 3rd and 4th paras by
_Act 25 of 1926,8.2.
7. Inserted by Act 30 of 1927,8.2. .
Repealing and Amending Act, 1952 (48 of 1952)
Please help with the detailed sections for the subject act.
regards,
RT