Tuesday 3 July 2012

Pakistan Christian Law : Divorce Act, 1869



Divorce Act 1869


PREAMBLE. Preamble
1. Short title commencement of act
2. Extent of act
3. Interpretation-clause
4. Matrimonial jurisdiction of High Courts to be exercised subject to act
5. Enforcement of decrees or orders made heretofore by supreme or High Court
6. Pending suits
7. Court to act on principles of English divorce Court
8. Extraordinary jurisdiction of High Court
9. Reference to High Court
10. When husband may petition for dissolution
11. Adulterer to be co-respondent
12. Court to be satisfied of a absence of collusion
13. Dismissal of petition
14. Power to Court to pronounce decree for dissolving marriage
15. Relief in case of opposition on certain grounds
16. Decrees for dissolution to be nisi
17. Confirmation of decree for dissolution by district Judges
17-A. Appointment of office to exercise duties of king's proctor
18. Petition for decree of nullity
19. Grounds of decree
20. Confirmation of District Judge's decree
21. Children of annulled marriage
22. Bar to decree for divorce a mensa et toro but judicial separation obtainable by husband or wife
23. Application for separation made by petition
24. Separated wife deemed spinster with respect to after acquired property
25. Separated wife deemed spinster for purposes of contract and suing
26. Decrees of separation obtained during absence of husband or wife may be reversed
27. Deserted wife may apply to Court for protection
28. Court may grant protection order
29. Discharge or variation of orders
30. Liability of husband seizing wife's property after notice of order
31. Wife's legal position during continuance of order
32. Petition for restitution of conjugal rights
33. Answer to petition
34. Husband may claim damages from adulterer
35. Power to order adulterer to pay costs
36. Alimony pendent lite
37. Power to order permanent alimony
38. Court may direct payment of alimony to wife or to her trustee
39. Power to order settlement of wife's property for benefit of husband and children
40. Inquiry into existence of ante-nuptial or post-nuptial settlements
41. Power to make orders as to custody of children in suit for separation
42. Power to make such orders after decree
43. Power to make orders as to custody of children in suits for dissolution or nullity
44. Power to make such orders after decree or confirmation
45. Code of Civil Procedure to apply
46. Forms of petitions and statements
47. Stamp on petition
48. Suits on behalf of lunatics
49. Suits by minors
50. Service of petition
51. Mode of taking evidence
52. Competence of husband and wife to give evidence as to cruelty or desertion
53. Power to close doors
54. Power to adjourn
55. Enforcement of and appeals from orders and decrees
56. Appeal to queen in council
57. Liberty to parties to marry again
58. English clergyman not compelled to solemnize marriages of persons divorced for adultery
59. English minister refusing to perform ceremony to permit use of his church
60. Decree for separation or protection-order valid as to persons dealing with wife before reversal
61. Bar of suit for criminal conversation
62. Power to make rules


THE DIVORCE ACT

ACT No. IV OF 1869

(For Statement of Objects and Reasons, see Calcutta Gazette, 1863, p. 173 ; for Report of Select Committee, see Gazette of India, 1869, p. 192; for Proceedings in Council, see Calcutta Gazette, 1862, Supplement, p. 463, tbid.,1863, Supplement, p. 43, and Gazette of India, 1869, Supplement, p. 291.

The Act extends to Pakistan the principal provisions of the Matrimonial Causes Act, 1857 (20 & 21 Vict., c. 85), as amended by the Matrimonial Causes Act, 1859 (22 & 23 Vict., c. 61), the Matrimonial Causes Act, 1860 (23 & 24 vict., c. 144), and the Matrimonial Causes Act, 1866 (29 & 30 Vict., c. 32). It also embodies many rulings of Sir Cress-well and Lord Penzance.

Provision was made by the Indian Divorces (Validity) Act (11 & 12 Geo., 5, ch. 18) with respect to the validity of certain decrees granted in India for the dissolution of the marriage of persons domiciled in the United Kingdom.

The Limitation Act does not apply to suits under this Act, see the Limita*tion Act, 1908 (9 of 1908), s. 29 (2).

It has been declared to be in force in Baluchistan by the British Baluchistan Laws Regulation, 1913 (2 of 1913), s. 3.

It has been applied to Phulera in the Excluded Area of Upper Tanawal to the extent the Act is applicable in the N: W.F.P., subject to certain modifica*tions, and extended to the Excluded Area of Upper Tanawal (N: W.F.P.) other than Phulera with effect from such date and subject to such modifications as may be notified, see N: W.F.P. (Upper Tanawal) (Excluded Area) Laws Regu*lation, 1950.

It has also been extended to the Leased Areas of Baluchistan, see the Leased Areas (Laws) Order, 1950 (G. G. O. 3 of 1950) ; and applied in the Federated Areas of Baluchistan, see Gazette of India, 1937, Pt. I, p.1499.)

[26th February, 1869]

An Act to amend the law relating to Divorce and Matrimonial Causes (The words " in India " omitted by A. O., 1949, Sch.)* *

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 :‑


I: PRELIMINARY

1. Short title. Commencement of Act. This Act may be called the (The word "Indian" omitted, ibid.)* Divorce Act, and shall come into operation on the first day of April, 1869.

2. Extent of Act. (The original paragraph has successively been amended by A. O., 1949 and the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), to read as above.) [This Act extends to the whole of Pakistan.]

Extent of power to grant relief generally and to make decrees of dissolution, Or of nullity. (Subs. by the Divorce (Amendment) Act, 1926 (25of 1926), for the original paragraph.)[Nothing hereinafter contained shall authorise any Court to grant any relief under this Act except where the petitioner (Ins. by the Divorce (Second Amendment) Act, 1927 (30 of 1927), s. 2.) [ or respondent] professes the Christian religion,

or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in (Subs. by A. O., 1949, Sch., for " India".) [Pakistan] at the time, when the petition is presented,

(Subs. by the Divorce (Amendment) Act, 1950 (57 of 1950), s. 2, for the* original sub‑paragraph.) [or to make decrees of nullity of marriage except where the, marriage if solemnized before the 15th day of August, 1947, has been solemnized in India and if solemnized on or after that date has been solemnized in Pakistan and the petitioner is resident in Pakistan 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 (Subs. by A. O., 1949, Sch., for " India".) [Pakistan] at the time of presenting the* petition.]

3. Interpretation‑clause. In this Act, unless there be something repugnant in the sub*ject or context,‑

High Court (The original clause has been successively amended by Acts 18 of 1919, 32 of 1925, 8 of 1935, A. O., 1937, and A. O., 1949, Sch., to read as above.) [(1) "High Court " means with reference to any area‑

(a) in (Subs. by A. O., 1961, Art. 2, for "East Bengal" (with effect from the 23rd march, 1956).) [East Pakistan], the High Court of (Subs. by A. O., 1961, Art. 2, for "East Bengal" (with effect from the 23rd march, 1956).)[East Pakistan];.

(Subs. by the Central Laws (Statute Reform) ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 195), for the original sub‑clause (b) as amended by the Federal Laws (Revision and Declaration) Act, 1951 (26 of 1951), s. 8.) [(b) in West Pakistan, the High Court of West Pakistan; and]

(The original sub‑clause (c) omitted by Ord. 21 of 1960, s. 3 and 2ndl Sch. (with effect from the 14th October, 1955).)* * * * * *

(d) in any Acceding State or non‑Acceding State, that Court of those mentioned above which the Central Govern*ment may from time to time appoint in this behalf by notification in the official Gazette, and until such appointment that which immediately before the 15th day of August, 1947, was exercising criminal jurisdic*tion in respect of European British subjects in that: State.

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.]

(Subs. by A.O., 1937, for the original clause as amended by Acts 11 of 1923, 32 of 1925 and 34 of 1926.) District Judge [(2) "District Judge" means‑

(a) in a Province, a judge of a Principal Civil Court of original jurisdiction, however designated ; and

(b) in any area in an (Subs. by Act 26 of 1951, s. 4 and III Sch., for “Indian State”.)[Acceding State] such officer as the Central Government shall from time to time appoint in this behalf by notification in the official Gazette, and, in the absence of such an officer, the High Court for the area :]

(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 juris*diction under this Act, 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 "incestuous adultery" means adultery committed by a husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage by reason of her being within the prohibited degrees of consan*guinity (whether natural or legal) or affinity:

(7) Bigamy with adultery "bigamy with adultery" means adultery with the same woman with whom the bigamy was committed:

(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 (Subs. by A.O., 1961, Art. 2 and Sch., dor “the dominions of Her Majesty” (with effect from the 3rd March, 1956).)[Pakistan] 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 administrator 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 administrator.

II.‑JURISDICTION

4. Matrimonial jurisdiction of High Courts to be exercised subject to Act. Exception. The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise : except so far as relates to the granting of marriage‑licenses, which may be granted as if this Act had not been passed.

5. Enforcement of decrees or orders made heretofore by Supreme or High Court. Any decree or order of the late Supreme Court of Judicature at Calcutta, Madras or Bombay sitting on the ecclesiastical side, or of any of the said High Courts sitting in the exercise of their matri*monial jurisdiction, respectively, in any cause or matter matri*monial, may be enforced and dealt with by (Subs. by A. O., 1961, Art. 22 and Sch., for "the said High Courts, res*pectively," (with effect from the 23rd March, 1956).)[the High Court] as hereinafter mentioned, in like manner as if such decree or order had been originally made under this Act by the Court so enforcing or dealing with the same.

6. Pending suits. All suits and proceedings in causes and matters matri*monial, which when this Act comes into operation are pending in any High Court, shall be dealt with and decided by such Court, so far as may be, as if they had been originally instituted therein, under this Act.

7. Court to act on principles of English Divorce Court. Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings here‑*under, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable *to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.

(Ins. by the Indian Divorce (Amendment) Act, 1912 (10 of 1912), s. 2.) [Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of ‑the facts on which the claim to relief is founded.]

8. Extraordinary jurisdiction of High Court. The High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under this Act.

Power to transfer suits. The High Court may also withdraw any such suit or proceed*ing, and transfer it for trial or disposal to the Court of any other such District Judge.

9. Reference to High Court. When any question of law or usage having the force of law arises at any point in the proceedings previous to the hearing, of any suit under this Act by a District Court or at any subsequent stage of such suit, or in the execution of the decree therein or order thereon, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the case and refer it, with the Court's own opinion thereon, to the decision of the High Court.

If the question has arisen previous to or in the hearing, the District Court may either stay such proceedings, or proceed in the case pending such reference and pass a decree contingent upon the opinion of the High Court upon it.

If a decree or order has been made, its execution shall be stayed until the receipt of the order of the High Court upon such reference.

III.‑DISSOLUTION OF MARRIAGE

10. When husband may petition for dissolution. Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemniz*ation thereof, been guilty of adultery.

When wife may petition for dissolution. Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;

or has been guilty of incestuous adultery,

or of bigamy with adultery,

or of marriage with another woman with adultery,

or of rape, sodomy or bestiality,

or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mehsa et toro,

or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

Contents of petition. Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.

11. Adulterer to be co‑respondent. Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co‑respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court :‑

(1) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed ;

(2) that the name of the alleged adulterer is unknown to the petitioner although he has made due efforts to dis*cover it ;

(3) that the alleged adulterer is dead.

12. Court to be satisfied of absence of collusion. Upon any such petition for the dissolution of a marriage, the Court shall satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or not the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery, or has condoned the same, and shall also inquire into any countercharge which may be made against the petitioner.

13. Dismissal of petition. In case the Court, on the evidence in relation to any such petition, is satisfied that the petitioner's case has not been proved, or is not satisfied that the alleged adultery has been com*mitted,

or finds that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of or that the petition is presented or prosecuted in collusion with either of the respondents, then and in any of the said cases the Court shall dismiss the petition.

When a petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court.

14. Power to Court to pronounce decree for dissolving marriage. In case the Court is satisfied on the evidence that the case of the petitioner has been proved,

and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,

or that the petition is presented or prosecuted in collusion with either of the respondents,

the Court shall pronounce a decree declaring such marriage to be dissolved in the manner and subject to all the provisions and limitations in sections 16 and 17 made and declared.

Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery,

or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition,

or of cruelty towards the other party to the marriage,

or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse,

or of such willful neglect or misconduct of or towards the other party as has conduced to the adultery.

Condonation. No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal co‑habitation has been resumed or continued.
15. Relief in case of opposition on certain grounds. In any suit instituted for dissolution of marriage, if the respondent opposes the relief sought on the ground, in case of such a suit instituted by a husband, of his adultery, cruelty or, desertion without reasonable excuse, or, in case of such a suit instituted by a wife, on the ground of her adultery and cruelty, the Court may in such suit give to the respondent, on his or her application, the same relief to which he or she would have been entitled in case he or she had presented a petition seeking such relief, and the respondent shall be competent to give evidence of or relating to such cruelty or desertion.

16. Decrees for dissolution to be nisi. Every decree for a dissolution of marriage made by a High Court, not being a confirmation of a decree of a District Court, shall, in the first instance, be a decree nisi, not to made absolute 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.

Collusion. During that period any person shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not being brought before the Court.

On cause being so shown, the Court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as justice may demand.

The High Court may order the costs of counsel and witnesses, and otherwise arising from such cause being shown, to be paid by the parties or such one or more of them as it thinks fit, includ*ing a wife if she have separate property.

Whenever a decree nisi has been made, and the petitioner fails, within a reasonable time, to move to have such decree made absolute, the High Court may dismiss the suit.

17. Confirmation of decree for dissolution by District Judge. Every decree for a dissolution of marriage made by a District 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 think 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 think 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.

17A. Appointment of officer to exercise duties of King's Proctor.( Subs. by A. O., 1937, for original section 17A as ins. by s. 2 of the Indian Divorce (Amendment) Act, 1927 (15 of 1927).)[The Provincial Government (The original words "of any Province within which any High Court established by Letters Patent exercises jurisdiction," omitted by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955).)* * * may appoint an officer who shall, within the jurisdiction of the High Court in that Province, 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 Govern*ment 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.

In relation to the jurisdiction of any such High Court as aforesaid in an (Subs. by the Federal Laws (R.‑vision and Declaration ) Act, 1951 (26 of 1951), s. 4 and III Sch., for " Indian State".) [Acceding State] this section shall have effect as if the reference to the Provincial Government was a reference to the Central Government.]

IV.‑NULLITY OF MARRIAGE

18. Petition for decree of nullity. Any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void.

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 idoit 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 the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

20. Confirmation of District Judge's decree. Every decree of nullity of marriage made by a District Judge shall be subject to confirmation by the High Court, and the Judge provisions of section 17, clauses 1, 2, 3 and 4, shall, mutatis decree mutandis, apply to such decrees.

21. Children of annulled marriage. Where a marriage is annulled on the ground that a former Child' husband or wife was living, and it is adjudged that the subsequent annul 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 for at toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion but: without reasonable excuse 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.

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 or the High Court; and the Court, by on being satisfied of the truth of the statements made in such peti*tion, 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, to case she dies intestate, go as the same would have gone if her husband bad 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 co*habitation takes place shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst separate.

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, ali*mony 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 neces*saries 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. Decrees of separation obtained during absence‑of hus*band 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(See now the Succession Act, 1925 (39 of 1925).), does not apply, may, when deserted by her husband, present petition to the District Court or the High Court, 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 think 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 slut 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: RESTI'IVTION OF CONJUGAL RIGHTS

32. Petition for restitution of conjugal rights. When either the husband or the wife has, without rea*sonable excuse withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court or the High Court, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such peti*tion, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accor*dingly.

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. 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 t; 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.

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 cost of the proceedings.

Provided that the co‑respondent shall not be ordered to pay the petitioner's cost‑

(1) if the respondent was, at the time of the adultery, living apart from her husband and leading the life of a prosti*tute, 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.

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, the wife may present a petition for 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 for payment to the wife of alimony pending the suit as it may deem just

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.

37. Power to order permanent alimony. The High Court may, if it think fit, on any decree ab*solute: 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, 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 hus*band 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 be*comes 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

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 pro*perty, the Court may, if it think fit, order such settlement as it thinks reasonable to be made of 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 notwithstand*ing 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. 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 teen confirmed,

may 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 appli*cation 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.

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 provision, 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 pro*ceedings for obtaining such decree were still pending.

43. Power to make orders as to custody of children in suits for dissolution or nullity. 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 de*cree absolute or its decree (as the case may be), make such interim or*ders 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 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 think 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. The High Court, after a decree absolute for dissolution of marriage or a decree of nullity of marriage,

and the District Court, after a decree for dissolution of marriage or of nullity of marriage has been confirmed,

may, upon application by petition for the purpose, make from time to time all such orders and provision, 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 plac*ing such children under the protection of the said Court, as might have 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 proceed*ings under this Act between party and party shall be regulated by the Code of Civil Procedure(See now the 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. Stamp on petition. 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 separa*tion (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," and the words " in the first, second, and third cases mentioned in this section, rep. by the Court‑fees Act, 1870 (7 of 1870). For court‑fee, see now Art. 7 of Sch. II to that Act.)* * * shall (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," and the words " in the first, second, and third cases mentioned in this section, rep. by the Court‑fees Act, 1870 (7 of 1870). For court‑fee, see now Art. 7 of Sch. II to that Act.)* * * 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 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 (The words "shall bear a stamp of eight annas and " rep by the Court-*fees Act, 1870 (7 of 1870). For court‑fee, see now Art. 7 of Sch. II to that Act.)* * * 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 (Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s. 3 and 2nd Sch. (with effect from the 14th October, 1955), for "the Provinces and the Capital of the Federation " which was subs. for "British India " by A. O., 1949, Arts. 3(2) and 4.) [Pakistan], 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 alto*gether 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 part, 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 by a wife, praying that her marriage may, be dissolved by reason of her husband having been guilty of adultery coupled with cruelty, or of adultery coupled with desertion, without reasonable excuse, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty on desertion.

53. Power to close doors. The whole or any part of ply 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 flay require further evidence thereon if it sees fit so to do.( For court‑fee of memorandum of appeal, see now Art. 7 of Sch. II to the Court Fees Act, 1870 (7 of 180).)

55. Enforcement of and appeals 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:

Provided that there shall be no appeal from a decree of a District Judge for dissolution of marriage or of nullity of marriage: nor from the order of the High Court confirming or refusing to confirm such decree:

No appeals as to costs. Provided also that there shall be no appeal on the subject of costs only.

56. Appeal to Queen in Council. Any person may appeal to (Subs by A O , 1961, Art 2 & Sch., for "Her Majesty in Council" (with effect from the 23rd March, 1956).)[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 nisa) 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 (Subs by A O , 1961, Art 2 & Sch., for "Her Majesty in Council" (with effect from the 23rd March, 1956).) [the Supreme Court],

57. Liberty to parties to marry again. When six months after the date of an order of a High Court confirming the decree for a dissolution of marriage made by a District Judge have expired:

or when six months after the date of any decree of a High Court dissolving a marriage have expired, and no appeal has been presented against such decree to the High Court in its appellate jurisdiction,

or when any such appeal has been dismissed,

or when in the result of any such appeal any marriage is dec*lared to be dissolved,

but not sooner, it shall be lawful for the respective parties to the marriage to marry again, as if the prior marriage had been dissolved by death:

Provided that no appeal to (Subs. by A. O., 1961, Art. 2 and Sch. for "Her Majesty in Council" ,(with effect from the 23rd March, 1956).)[the Supreme Court] has been ‑presented against any such order or decree.

When such appeal has been dismissed, or when in the result thereof the marriage is declared to be dissolved, but not sooner, it shall be lawful for the respective parties to the marriage to marry ‑again as if the prior marriage had been dissolved by death.

XIII: RE‑MARRIAGE

58. English clergyman not compelled to solemnize marriages of persons divorced for adultery. No clergyman in Holy Orders of the (The word "United " rep. by the Repealing Act, 1873 (12 of 1873).)* Church of England (The words "and Ireland " rep., ibid.)* * 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 (The word "United " rep. by the Repealing Act, 1873 (12 of 1873).)* Church refuses to perform such marriage service between any per*sons 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. 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 re*versal, 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 dis*continued, 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 separa*tion.

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 the Code of Civil Procedure(See now the Code of Civil Procedure, 1908 (Act 5 of 1908).).

All such rules, alterations and additions shall be published in the (Subs. by A. O., 1937, for "local official Gazette".) [official Gazette].

No comments:

Post a Comment

Contact Lawyers Network

If you have any queries related with this post you can contact at lawyergolra@gmail.com

Regards,
Salman Yousaf Khan
CEO
Lawyers Network
+92-333-5339880