Divorce Act, 1869- Sections 45 to 62

XII.—PROCEDURE

45. Code of Civil Procedure to apply.

45. Code of Civil Procedure to apply.—Subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure, [1][1908].

46. Forms of petitions and statements.

46. Forms of petitions and statements.—The forms set forth in the schedule to this Act, with such variation as the circumstances of each case require, may be used for the respective purposes mentioned in such schedule.

47. Petition to state absence of collusion.

47. Petition to state absence of collusion.—Every petition under this Act for a decree of dissolution of marriage, or of nullity of marriage, or of judicial separation [2][* * *] shall [3][* * *] state that there is not any collusion or connivance between the petitioner and the other party to the marriage.

Statements to be verified.—The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in manner required by law for the verification of plaints, and may at the hearing be referred to as evidence.

48. Suits on behalf of lunatics.

48. Suits on behalf of lunatics.—When the husband or wife is a lunatic or idiot, any suit under this Act (other than a suit for restitution of conjugal rights) may be brought on his or her behalf by the committee or other person entitled to his or her custody.

49. Suits by minors.

49. Suits by minors.—Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the Court; and no petition presented by a minor under this Act shall be filed until the next friend has undertaken in writing to be answerable for costs.

Such undertaking [4][* * *] shall be filed in Court, and the next friend shall thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.

50. Service of petition.

50. Service of petition.—Every petition under this Act shall be served on the party to be affected thereby, either within or without [5][India], in such manner as the High Court by general or special order from time to time directs:

Provided that the Court may dispense with such service altogether in case it deems necessary or expedient so to do.

51. Mode of taking evidence.

51. Mode of taking evidence.—The witnesses in all proceedings before the Court, where their attendance can be had, shall be examined orally, and any party may offer himself or herself as a witness, and shall be examined, and may be cross-examined and re-examined, like any other witness:

Provided that the parties shall be at liberty to verify their respective cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be re-examined orally as aforesaid by or on behalf of the party by whom such affidavit was filed.

52. Competence of husband and wife to give evidence as to cruelty or desertion.

52. Competence of husband and wife to give evidence as to cruelty or desertion.—On any petition presented [6][by a husband or a wife, praying that his or her marriage may be dissolved by reason of his wife or her husband, as the case may be, having been guilty of adultery, cruelty or desertion], the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion.

53. Power to close doors.

53. Power to close doors.—The whole or any part of any proceeding under this Act may be heard, if the Court thinks fit, with closed doors.

54. Power to adjourn.

54. Power to adjourn.—The Court may from time to time adjourn the hearing of any petition under this Act, and may require further evidence thereon if it sees fit so to do.

55. Enforcement of, and appeal from, orders and decrees.

55. Enforcement of, and appeal from, orders and decrees.—All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from, under the laws, rules and orders for the time being in force.

[7][* * *]

No appeal as to costs.—Provided [8][shall be] that there shall be no appeal on the subject of costs only.

56. Appeal to the Supreme Court.

56. Appeal to the Supreme Court.—Any person may appeal to [9][the Supreme Court] from any decree (other than a decree nisi) or order under this Act of a High Court made on appeal or otherwise,

and from any decree (other than a decree nisi) or order made in the exercise of original jurisdiction by Judges of a High Court or of any Division Court from which an appeal shall not lie to the High Court,

when the High Court declares that the case is a fit one for appeal to [10][the Supreme Court].

XIII.—RE-MARRIAGE

57. Liberty to parties to marry again.

[11][57. Liberty to parties to marry again.—Where a decree for dissolution or nullity of marriage has been passed and either the time for appeal has expired without an appeal having been presented to any court including the Supreme Court or an appeal has been presented but has been dismissed and the decree or dismissal has become final, it shall be lawful for either party to the marriage to marry again.]

58. English clergyman not compelled to solemnize marriages of persons divorced for adultery.

58. English clergyman not compelled to solemnize marriages of persons divorced for adultery.—No clergyman in Holy Orders of the [12][* * *] Church of England [13][* * *] shall be compelled to solemnize the marriage of any person whose former marriage has been dissolved on the ground of his or her adultery, or shall be liable to any suit, penalty or censure for solemnising or refusing to solemnize the marriage of any such person.

59. English Minister refusing to perform ceremony to permit use of his Church.

59. English Minister refusing to perform ceremony to permit use of his Church.—When any Minister of any Church or Chapel of the said [14][* * *] Church refuses to perform such marriage-service between any persons who but for such refusal would be entitled to have the same service performed in such Church or Chapel, such Minister shall permit any other Minister in Holy Orders of the said Church, entitled to officiate within the diocese in which such Church or Chapel is situate, to perform such marriage-service in such Church or Chapel.

XIV.—MISCELLANEOUS

60. Decree for separation or protection-order valid as to persons dealing with wife before reversal.

60. Decree for separation or protection-order valid as to persons dealing with wife before reversal.—Every decree for judicial separation or order to protect property, obtained by a wife under this Act shall, until reversed or discharged, be deemed valid, so far as necessary, for the protection of any person dealing with the wife.

No reversal, discharge or variation of such decree or order shall affect any rights or remedies which any person would otherwise have had in respect of any contracts or acts of the wife entered into or done between the dates of such decree or order, and of the reversal, discharge or variation thereof.

Indemnity of persons making payment to wife without notice of reversal of decree or protection-order.—All persons who in reliance on any such decree or order make any payment to, or permit any transfer or act to be made or done by, the wife who has obtained the same shall, notwithstanding such decree or order may then have been reversed, discharged or varied, or the separation of the wife from her husband may have ceased, or at some time since the making of the decree or order been discontinued, be protected and indemnified as if, at the time of such payment, transfer or other act, such decree or order were valid and still subsisting without variation, and the separation had not ceased or been discontinued,

unless, at the time of the payment, transfer or other act, such persons had notice of the reversal, discharge or variation of the decree or order or of the cessation or discontinuance of the separation.

61. Bar of suit for criminal conversation.

61. Bar of suit for criminal conversation.—After this Act comes into operation, no person competent to present a petition under Sections 2 and 10 shall maintain a suit for criminal conversation with his wife.

62. Power to make rules.

62. Power to make rules.—The High Court shall make such rules under this Act as it may from time to time consider expedient, and may from time to time alter and add to the same:

Provided that such rules, alterations and additions are consistent with the provisions of this Act and the Code of Civil Procedure [15][, 1908].

All such rules, alterations and additions shall be published in the Official Gazette.