Objects and Reasons—Clause 11.—This clause seeks to amend section 16 of the Act. The amendment is consequential to the amendments made in section 17 of the Act to do away with the requirement of confirmation of decree of District Court by the High Court.
State Amendment—[Uttar PradeshJ.—(2) In the first paragraph the words “made by a High Court, not being a confirmation of a decree of a District Court” and “or special” shall be omitted. (2) In the second paragraph the words “or special” occurring between the words “general” and “order” shall be omitted. (3) In the fourth and fifth paragraphs for the words “High Court”, the word “Court” shall be substituted.—U.P. Act XXX of 1957.
28[17. Power of High Court to remove certain suits.—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 by general or special order from time to time directs, to apply to the High Court to remove the suit under section 8, and the Court 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.]
Objects and Reasons—Clause 12.—This clause seeks to substitute section 17 relating to confirmation of decree for dissolution of marriages made by a District Judge by the High Court. At present every decree for a dissolution of marriage made by a District Judge is subject to confirmation by the High Court. In order to obviate the procedural delay and consequential hardship to the estranged couples, this clause seeks to do away with the requirement of confirmation by the High Court of such decrees. The amendment is on the lines suggested by the Law Commission of India in its 164th Report.
28. Substituted by Act 51 of 2001, S. 12, for S. 17 (w.e.f. 3-10-2001). Prior to its omission, S. 17 read as under:—
“17. Confirmation of decree for dissolution by District Judge.—Every decree for a dissolution of marriage made by a Dis trie! Judge shall be subject to confirmation by the High Court.
Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court 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 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, 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 by the District Judge, and the High Court 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 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 by general or
special order from time to time directs, to apply to the High Court to remove the suit under
section 8, and the High Court, 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.”
2917-A. Appointment of officer to exercise duties of King’s Proctor.—
[Omitted by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), section 13 (w.e.f. 3-10-2001).]
Objects and Reasons—Clause 13.—This clause seeks to omit section 17-A of the Act relating to appointment of officers to exercise duties of King’s Proctor as it has become obsolete.
IV—NULLITY OF MARRIAGE
18. Petition for decree of nullity.—Any husband or wife may present a petition to the District 30[* * *], praying that his or her marriage may be declared null and void.
Objects and Reasons—Clause 14.—This clause seeks to amend section 18 of the Act relating to petition for decree of nullity. The omission of the words “or to the High Court” as proposed in this clause is consequential to the amendment proposed in section 10.
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 the31 [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.
Objects and Reasons—Clause 15.—This clause seeks to amend section 19 of the Act as consequential to the amendment made in section 10 as regards the Court in which petition may be presented.
COMMENTS
The Legislature did not use the directory or mandatory word “shall” in S. 19; the Court’s discretion to grant the decree for divorce and/or nullity of marriage remains unfettered: Rose Simpson v. Binimoy Biswas A.I.R. 1980 Cal. 214.
The impotency mus,t exist not only at the time of marriage but also at the time the proceedings are instituted: Jecronimo Francisco Sacrafamilla Eric D’Souza v. Florence Martha D’souza neeFernandesA.lR. 1980 Del. 275 (F.B.).
29. Prior to its omission, S. 17-A read as under:— <
“17-A. Appointment of officer to exercise duties of King’s Proctor.—The Government of the State within which any High Court exercises jurisdiction, may appoint an officer who shall within the jurisdiction of the High Court in that State have the like right of showing cause why a decree for the dissolution 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 said 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,”
30. The words “or to the High Court” omitted by Act 41 of 2001, S. 14 (w.e.f. 3-10-2001.
31. Substituted by ActSl of 2001,S. 15, for “jurisdiction of the High Court” (w.e.f.3-10-2001).
3220. Confirmation of District Judge’s decree.—[Omitted by the Indian Divorce (Amendment] Act, 2001 (51 0/2001), section 16 (w.e.f. 3-10-2001).]
Objects and Reasons—Clause 16.—This clause seeks to omit section 20 of the Act relating to confirmation of decree of nullity of marriage by a District pudge. At present, every decree of nullity of marriage made by a District ludge shall be subject to confirmation by the High Court. In order to simplify the procedure and obviate delay and consequential hardship to estranged couples, it is proposed to do away with the requirement of confirmation.
COMMENTS
Where during the pendency of the reference, S. 20 of the Divorce Act was omitted by the Indian Divorce (Amendment) Act, 2001, and it was contended that there was no requirement of confirmation of the decree passed by the Court below, and in the circumstances, the reference had become redundant and infructuous, it was held that any amendment in the confirmation provision must also be held to be prospective unless otherwise provided in the amendment. There is no such clause in the amendment by which S 20 has simply been omitted, that is, deleted from the Divorce Act. It would, thus, follow that the deletion of S. 20 by the Indian Divorce (Amendment) Act, 2001 has no bearing on the pending proceedings: Larleyv. John A.I.R. 2004 Pat. 53 (F.B.).
21. Children of annulled marriage.—Where a marriage is annulled on the ground that a former husband or wife was living and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.
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 33[* * *] 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.
Objects and Reasons—Clause 17.—This clause seeks to amend section 22 of the Act. The amendment is consequential to the changes made in section 10.
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 M[* * *]; 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.
32. Prior to its omission, S. 20 read as under:—
“20. Confirmation of District Judge’s decree.—Every decree of nullity of marriage made by a District ludge shall be subject to confirmation by the High Court, and the provisions of section 17, clauses 1,2,3 and 4, shall mutatis mutandis apply to $uch decree.”
33. The words “without reasonable excuse” omitted by Act 51 of 2001, S. 17 (w.e.f. 3-10-2001).
34. The words “or the High Court” omitted by Act 51 of 2001, S. 18 (w.e.f. 3-10-2001).
Objects and Reasons—Clause 18.—This clause seeks to omit the words “or the High Court” occurring in sections 23, 27 and 32 of the Act as consequential to changes made in section 10 relating to the Court in which petitions could be made.
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.
COMMENTS
A decree passed for judicial separation does not have the effect of a divorce in view of S. 22 of the Divorce Act though the decree has the effect of a divorce a mensa ettoro for the specific purposes mentioned under Ss. 24 and 25 of the Divorce Act: Thomas Kuriakose v. Abraham Mary A.I.R. 2004 Ker. 73.
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
