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)35, does not apply, may, when deserted by her husband, present a petition to the District Court 36[* * *], 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
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ive to the wife an order protecting her earnings and other property from her usband 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 wife’s 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. Wife’s 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 36[* * *], 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.
35. Now see the Indian Succession Act, 1925 (39 of 1925).
36. The words “or the High Court” omitted by Act 51 of 2001, S. 18 (w.e.f. 3-10-2001).
VIII—DAMAGES AND COSTS
3734. Husband may claim damages from adulterer.—[Omitted by the Indian Divorce (Amendment) Act,2001 (510/2001), section 19 (w.e.f. 3-10-2001).]
3835. Power to order adulterer to pay costs.—[Omitted by the Indian Divorce (Amendment) Act, 2001 (510/2001), section 20 (w.e.f. 3-10-2001).]
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, 39[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 40[for payment to the wife of the expenses of the proceedings and alimony pending the suit] as it may deem just:
37. Prior to its omission, S. 34 read as under:—
“34. Husband may claim damages from adulterer.—Any husband may, either in a petition for dissolution of marriage or for judicial separation, or in a petition to the District Court or the High Court limited to such object only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner.
Such petition shall be served on the alleged adulterer and the wife, unless the Court dispenses with such service, or directs some other service to be substituted.
The damages to be recovered on any such petition shall be ascertained by the said Court, although the respondents or either of them may not appear.
After the decision has been given, the Court may direct in what manner such damages shall be paid or applied.”
38. Prior to its omission, S. 35 read as under:—
“35. Power to order adulterer to pay costs.—Whenever in any petition presented by a husband, the alleged adulterer has been made a co-respondent, and the adultery has been established, the Court may order the co-respondent to pay the whole or any part of the costs of the proceedings:
Provided that the co-respondent shall not be ordered to pay the petitioner’s costs—
(1) if the respondent was, at the time of the adultery, living apart from her husband and leading the life of a prostitute, or
(2) if the co-respondent had not, at the time of the adultery, reason to believe the respondent to be a married woman.
Power to order litigious intervenor to pay costs.—Whenever any application is made under section 17, the Court, if it thinks that the applicant had no grounds or no sufficient grounds for intervening, may order him to pay the whole or any part of the costs occasioned by the application.”
39. Substituted by Act 49 of 2001, S. 2, for “the wife may present a petition for alimony pending the suit” (w.e.f. 24-9-2001).
40. Substituted by Act 49 of 2001, S. 2, for “for payment to the wife of alimony pending the suit” (w.e.f. 24-9-2001).
41. Proviso omitted by Act 51 of 2001, S. 21 (w.e.f. 3-10-2001). Prior to its omission, the Proviso read as under:—
“Provided that alimony pending the suit shall in no case exceed one-fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be:”
42[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.]
37. Power to order permanent alimony.—^[Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband shall] to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties.
Power to order monthly or weekly payments.—In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:
Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit.
38. Court may direct payment of alimony to wife or to her trustee.—In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court expedient, so to do.
X—SETTLEMENTS
4439. Power to order settlement of wife’s 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).]________________________
42. Inserted by Act 49 of 2001, S. 2 (w.e.f. 24-9-2001).
43. Substituted by Act 51 of 2001, S. 22, for “The High Court may, if it thinks fit, on any
decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation
obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any
decree of his declaring a marriage to be dissolved, or on any decree of judicial separation
obtained by the wife; order that the husband shall” (w.e.f. 3-10-2001).
44. Prior to its omission, S. 39 read as under:—
“39. Power to order settlement of wife’s property for benefit of husband and children.— Whenever the Court pronounces a decree of dissolution of marriage or judicial separation for adultery of the wife, if it is made to appear to the Court that the wife is entitled to any property, the Court may, if it thinks fit, order such settlement as it thinks reasonable to be made or such property or any part thereof, for the benefit of the husband, or of the children of the marriage, or of both.
Any instrument executed pursuant to any order of the Court at the time of or after the pronouncing of a decree of dissolution of marriage or judicial separation shall be deemed valid notwithstanding the existence of the disability of coverture at the time of the execution thereof.
Settlement of damages.—The Court may direct that the whole or any part of the damages recovered under section 34 shall be settled for the benefit of the children of the marriage, or as a provision for the maintenance of the wife.”
40. Inquiry into existence of ante-nuptial or post-nuptial settlements.— 45[The District Court may, before passing a decree for dissolution of the marriage or a decree of nullity of marriage, inquire into] the existence of antenuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders, with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or of the children (if any) of the marriage, or of both children and parents, as to the Court seems fit:
Provided that the Court shall not make any order for the benefit of the parents or either of them at the expense of the children.
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:
46[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.—47[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
45. Substituted by Act 51 of 2001, S. 23, for “The High Court, after a decree absolute for dissolution of marriage, or a decree of nullity of marriage, and the District Court, after its decree for dissolution of marriage or of nullity of marriage has been confirmed, may inquire into” (w.e.f. 3-10-2001).
46. Inserted by Act 49 of 2001, S. 3 (w.e.f. 24-9-2001).
47. Substituted by Act 51 of 2001, S. 25, for “In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in, or removed to, a High Court, the Court may from time to time, before making its decree absolute or its decree (as the case may be), make such interim orders, and may make such provision in the decree absolute or decree, and in any such suit instituted in a District Court, the Court may from time to time, before its decree is confirmed, make such interim orders, and may make such provision on such confirmation, as the High Court or District Court (as the case may be) deems proper” (w.e.f. 3-10-2001).
