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 3*** 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 here in after mentioned. 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 4 ***, 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. 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. 1. The words “or to the High Court” omitted by Act 51 of 2001, s. 14 (w.e.f. 3-10-2001). 2. Subs. by s. 15, ibid., for “jurisdiction of the High Court” (w.e.f. 3-10-2001). 3. The words “without reasonable excuse” omitted by s. 17, ibid. (w.e.f. 3-10-2001). 4. The words “or to the High Court” omitted by Act 51 of 2001, s. 18 (w.e.f. 3-10-2001). 10 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 proceedings; and her husband shall not be liable in respect of any contact, 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 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) 1 does not apply, may, when deserted by her husband, present a petition to the District Court 2***, 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 give to the wife an order protecting her earnings and other property from her husband 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 1. See now the Indian Succession Act, 1925 (39 of 1925). 2. The words “or the High Court” omitted by Act 51 of 2001, s. 18 (w.e.f. 3-10-2001). 11 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 1*** 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. VIII.—DAMAGES AND COSTS 34. [Husband may claim damages from adulterer].—[Omitted by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), s. 19 (w.e.f. 3-10-2001)]. 35. [Power to order adulterer to pay costs].—[Omitted by s. 20, ibid. (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 2[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 3[for payment to the wife of the expenses of the proceedings and alimony pending the suit] alimony pending the suit as it may deem just: 4 * * * * * 5 [Provided further 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.—6[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. 1. The words “or the High Court” omitted by Act 51 of 2001, s. 18 (w.e.f. 3-10-2001). 2. Subs. 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). 3. Subs. by s. 2, ibid., for “for payment to the wife of alimony pending the suit” (w.e.f. 24-9-2001). 4. The proviso omitted by Act 51 of 2001, s. 21 (w.e.f. 3-10-2001). 5. Ins. by Act 49 of 2001, s. 2 (w.e.f. 24-9-2001). 6. Subs. by Act 51 of 2001, s. 22, for certain words (w.e.f. 3-10-2001). 12 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 39. [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), s. 23 (w.e.f. 3-10-2001)]. 40. Inquiry into existence of ante-nuptial or post-nuptial settlements.—1[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 ante-nuptial 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 thinks fit, direct proceedings to be taken for placing such children under the protection of the said Court: 2 [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.—3[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 proper] with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the court. 44. Power to make such orders after decree or confirmation.—4[Where a decree of dissolution or nullity of marriage has been passed, the District Court may, upon application] by petition for the 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 was the subject of the decree, or for placing such children under the protection of the said court, as might have 1. Subs. by Act 51 of 2001, s. 24, for certain words (w.e.f. 3-10-2001). 2. Ins. by Act 49 of 2001, s. 3 (w.e.f 24-9-2001). 3. Subs. by Act 51 of 2001, s. 25, for certain words (w.e.f. 3-10-2001). 4. Subs. by, s. 26, ibid., for certain words (w.e.f. 3-10-2001). 13 been made by such decree absolute or decree (as the case may be), or by such interim orders as aforesaid. XII.—PROCEDURE 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 1 [Code of Civil Procedure, 1908 (5 of 1908)]. 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.—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.—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.—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.—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 seems necessary or expedient so to do. 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.—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. 1. Subs. by Act 51 of 2001, s. 27, for “Code of Civil Procedure” (w.e.f. 3-10-2001). 2. The Words “or of reversal of judicial separation, or for restitution of conjugal rights, or for damages, shall bear a stamp of five rupees, and” rep. by Act 7 of 1870, s. 2 and the Schedule III. 3. The words “in the first, second and third cases mentioned in this section,” rep. by Act 7 of 1870, s. 2 and the Schedule III. 4. The words “shall bear a stamp of eight annas and” rep. by Act 7 of 1870, s. 2 and the Schedule III. 5. Subs. by the A.O. 1950, for the Provinces, which had been substituted by the A.O. 1948, for “British India”. 6. Subs. by Act 51 of 2001, s. 28, for certain words (w.e.f 3-10-2001). 14 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.—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 decree.—All decrees and orders made by the Court in any suit or proceedings 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: 1 * * * * * No appeal as to costs. — [Provided] that there shall be no appeal on the subject of costs only. 2 56. Appeal to the Supreme Court.—Any person may appeal to 3[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 3[the Supreme Court]. XIII.—RE-MARRIAGE. 4 [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.—No clergyman in Holy Orders of the 5*** Church of England 6*** 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 solemnizing or refusing to solemnize the marriage of any such person. 59. English Minister refusing to perform ceremony to permit use of his Church. — When any Minister of any Church or Chapel of the said 5*** 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.—MISCLLANEOUS 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 1. The first proviso omitted by Act 51 of 2001, s. 29 (w.e.f. 3-10-2001). 2. Subs. by s. 29, ibid., for “Provided also” (w.e.f. 3-10-2001). 3. Subs. by the A.O. 1950, for “Her Majesty in Council”. 4. Subs. by Act 51 of 2001, s. 30, for section 57 (w.e.f. 3-10-2001). 5. The word “United” rep. by Act 12 of 1873, s. 1 and the Schedule. 6. The words “and Ireland” rep. by s. 1, ibid. and the Schedule. 15 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.— 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.— 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 the1[Code of Civil Procedure, 1908 (5 of 1908)]. All such rules, alteration and additions shall be published in the Official Gazette. 1. Subs. by Act 51 of 2001, s. 31, for “Code of Civil Procedure” (w.e.f. 3-10-2001). 16 THE SCHEDULE ______________ SCHEDULE OF FORMS No. 1. —PETITION by husband for a dissolution of marriage with damages against co-respondent, by reason of adultery. (See sections 10 and 34). In the (High) Court of To the Hon’ble Mr. Justice [or To the Judge of ] The day of 186 . The petition of A.B., of SHEWETH, 1. That your petitioner was on the day of , one thousand eight hundred and , lawfully married to C.B., then C.D., spinster at .