Divorce Act, 1869

The Divorce Act, 1869 is an Indian law that deals with the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial.

Divorce Act, 1869

[Act 4 of 1869; amended up to Act 6 of 2019]           [26th February, 1869]

An Act to amend the law relating to Divorce and Matrimonial Causes[1]

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 Vic. 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 plac ing the Christian subjects of the Crown within the Presi dency 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 expedi ent 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 Di vorce and Matrimonial Causes in England, established in virtue of the Act 20 and 21 Vic. C. 85, and in regard to which further provisions were made by 22 and 23 Vic. C. 61, and 23 and 24 Vic. C. 144. The Act of Parliament for establishing the High Court, however, does not pur port to give to the Crown the power of importing into the Charter all the provisions of the Divorce Court Act, and some of them the Crown clearly could not so im port, such for instance as those which prescribe the pe riod of remarriage, and those which exempt from pun ishment 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 Vic. Ch. 81 has been passed in the year just expired (1862). The object of this Statute to render perpetual 23 and 24 Vic. Ch. 144 the duration of which had been originally limited to two years.

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 Vic. 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 Vic. 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.

I.—PRELIMINARY

1. Short title, commencement of Act.

1. Short title, commencement of Act.—This Act may be called the [2][* * *] Divorce Act, and shall come into operation on the first day of April, 1869.

2. Extent of Act.

2. Extent of Act.—[3][This Act extends to [4][the whole of India [5][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,

or of nullity.—or to make decrees of nullity of marriage except where the marriage has been solemnized in India and the petitioner is resident in India at the time of presenting the petition,

or to grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition.]

3. Interpretation-clause.

3. Interpretation-clause.—In this Act, unless there be something repugnant in the subject or context,—

[8][(1) “High Court”.—“High Court” means with reference to any area,—

(a) in a State, the High Court for that State;

[9][(b) in Delhi, the High Court of Delhi;

(bb) in Himachal Pradesh, the High Court of Punjab & Haryana up to and inclusive of the 30th April, 1967 and the High Court of Delhi thereafter;]

(c) in Manipur and Tripura, the High Court of Assam;

(d) in the Andaman and Nicobar Islands, the High Court at Calcutta;

(e) in the Laccadive, Minicoy and Amindivi Islands, the High Court of Kerala;

[10][(ee) in Chandigarh, the High Court of Punjab and Haryana;]

and in the case of any petition under this Act, “High Court” means the High Court for the area where the husband and wife reside or last resided together:]

[11][(2) “District Judge”.—“District Judge” means a Judge of a principal civil court of original jurisdiction however designated:]

(3) “District Court”.—“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 [12][the marriage was solemnized or], the husband and wife reside or last resided together:

(4) “Court”.—“Court” means the High Court or the District Court, as the case may be:

(5) “Minor children”.—“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:

(6) “Incestuous adultery”.—[13][* * *]

(7) “Bigamy with adultery”.—[14][* * *]

(8) “Marriage with another woman”.—“marriage with another woman” means marriage of any person, being married, to any other person, during the life of the former wife, whether the second marriage shall have taken place within [15][India] or elsewhere:

(9) “Desertion”.—“desertion” implies an abandonment against the wish of the person charging it: and

(10) “Property”.—“property” includes, in the case of a wife, any property to which 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.