The family that had sent a young woman back to her parents after her husband’s death, surfaced when she died. There was a contest between her mother and the husband’s sister’s sons for her property. The mother lost all the way up to the Supreme Court, which noted that it was a “hard case.”

“What women can expect from Courts… is a qualified degree of equal treatment,” wrote Professor Wendy Williams in “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women’s Rts. L. Rep. 175 (1982), adding that “women’s equality as delivered by Courts can only be an integration into a pre-existing, predominantly male world.”

This is so because, though the courts may be well meaning and earnestly intend to uphold equal rights for women, they can only reflect the shared life experience of individuals. This takes a largely male hue, not only because the judgment-deliverers are predominantly male, but also because society systemically supports male supremacy. And this systemic slant shades the thought processes that lie behind laws too, and the courts apply the laws in their judgments.

The skewed reality in which gender is positioned in the social, political, economic and cultural transactions shows up the fact that law is not gender-based — sometimes it is not even gender-neutral. Gender-neutrality will not be enough if it merely maintains the status quo — which is nothing but the perpetuation of gender discrimination. Women need, and must have, affirmation of their equality.

If enactment of laws was sufficient to protect women, then women in India are on velvet. But reality bites. The law is observed in the breach, or the law is not effectively enforced by the law-enforcement agencies, or judicial redress lies beyond the woman’s horizon, or yet, the evil is seen as an accepted practice. Or women get beaten by “hard cases.”

Look at this particular “hard case,” which is reported in (2009)15 SCC Page 66 Omprakash and Others Vs. Radhacharan and Others. In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband’s family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.

Section 15(1) says that if a Hindu woman dies without leaving a will, her property will devolve in the following order. The first in the order are her children, children of a predeceased child and her husband. If none of these persons is available, then it will go to the next in line: the heirs of the husband. Standing behind them will be the heirs of the father and the mother. Section 15(2) says that notwithstanding these provisions, if the woman is not survived by a child or the children of a predeceased child, then any property she inherited from her father or mother will go to the father’s heirs, and any property she inherited from her husband or father-in-law will go to the husband’s heirs.

The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman’s self-acquired property, and such property cannot be considered as property inherited from her parents. The court said: “This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”

In Narayani Devi’s case, the mother’s claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.

Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”

A mother shares equally with the children and the widow when a son predeceases her. But when a married daughter dies, the mother ranks after the husband’s heirs. This is the law as enacted in 1955-1956. Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.

Ironically, some of the ancient texts have a more pragmatic and equal approach in such cases. Stridhana, according to some texts, is categorised as technical and non-technical. Non-technical stridhana is that property which is acquired by a woman through her skill and mechanical arts (Vasishta). In the case of a woman who has no issues, the heirs to stridhana are her husband, mother, brother or father (Devala). Aprajaayaa haredbhartaa mata bhrata pitaapi va, says Devalasmrti (A.D. 600-900).

In the 21st edition of Principles of Hindu Law (Mulla), it is observed that Section 15(2) “seem to have been made on the ground that they prevent such property passing into the hands of persons to whom justice would require it should not pass and on the ground that the exceptions are in the interest of the intestate herself.” If the intention of this provision is to prevent property from devolving on persons to whom justice “would require it should not pass,” then the family that had refused to take care of Narayani should not have got anything.

In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband’s sister’s children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents’ support. These are the ground realities.

Section 15 should be amended. The order of succession should be altered. In addition to “inheritance,” other modes of acquisition from parents or because of parents could be added.

Justice Bhattacharjee’s criticism of Section 15 has been referred to above. Decades after his book was written, the injustice continues. Neither biological nor social differences shall corrupt the ideal of equality or the reality of equality. In this case the law views the man’s estate and the woman’s estate through different spectacles: her autonomy over her property is less complete than his. How else can one explain the injustice? There are many more such cases. The law should not stand in the way of justice.

Whether the Supreme Court could or should have addressed the gender discrimination, and seen that the apparent “hardness” of the case was only the outer layer of an entrenched system of subjugation of women, and unpeeled the layers, are questions that need not be argued now.

Professor Williams’ article says: “But to the extent the law of the public world must be reconstructed to reflect the needs and values of both sexes change must be sought from legislatures rather than courts. And women whose separate experience has not been adequately registered… are the ones who must seek the change.” It is time that this law is made gender-balanced.

(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)

By Mark Dummett
BBC News, Delhi

It is wedding season in India, the time of year when astrologers say the omens are best for a long and successful marriage.

Traditionally these were arranged by the two families and the weight of social pressure ensured divorces hardly ever happened.

But as it grows wealthier, so India’s old taboos are being challenged, and the chances of this year’s newly-weds staying together for the rest of their lives are slimmer than ever.

“There has been a huge change, a drastic change and divorce rates are increasing,” Dr Geetanjali Sharma, a marriage counsellor working in Gurgaon, a wealthy Delhi satellite city, told the BBC.

“There’s been a 100% increase in divorce rates in the past five years alone.”

Most of those splitting up are members of India’s thriving, urban middle class whose lives have been transformed by India’s boom, and whose aspirations are radically different to those of their parents and grandparents.

Nowhere represents those changes better than Gurgaon, which only two decades ago was little more than a village.

Its buffalos and mustard fields have now made way for shopping malls, coffee shops and multi-national IT companies. A state-of-the-art metro line connecting Gurgaon with Delhi, 25km (16 miles) away, was only recently opened.

And while millions of Indians might aspire to live in Gurgaon’s high-rise apartment blocks, they are, according to Dr Sharma, populated by many unhappy couples.

Escapism

The pressures of the modern workplace make a bigger difference, she thinks, than whether it was a traditional arranged marriage, or a so-called “love marriage”.

“I feel people are concentrating more on the careers and less on their personal lives,” she said.

“I also feel they lack patience and tolerance. They don’t want to put more efforts into a relationship to fix the issues, and they feel that escapism is the solution.”

India still has one of the lowest divorce rates in the world, with about one in 1,000 marriages collapsing, according to recent studies.

But the courts are now seeing so many new cases that the government has proposed making divorce easier and faster, in line with other countries.

As things stand, contested divorces can drag on for years.

Delhi High Court is the only place where Mohit, who works for a successful IT firm, now gets to meet his wife.

They fell in love as teenagers, married in their early 20s and separated three years ago when she walked out.

Honeymoon’s over

While he awaits a final court settlement, Mohit (who did not want his surname to be made public) has been left contemplating what went wrong and why.

“I was way too young to realise that being in love and being married are slightly different – in fact humongously different,” he told me.

“We used to fight about pretty much everything, you know. Let’s say that the first fight we had was pretty early, as in just after we got back from our honeymoon.”

Mohit puts the failure down to a culture clash between the old India and the new.

For a start, he says, his mother-in-law disapproved of their marriage, and his family also interfered.

He admits that sometimes he too found it hard to accept that his wife had her own career.

“Today the Indian male, as opposed to earlier, is a very complex entity. We want our wives to be really progressive, modern, so to say, which is why we married them in the first place,” he said.

“But at the same time we still want our wives to cook food for us. We want our wives to be there when we get back home.”

Stigma

Swarupa (who also did not want her full name revealed) finalised her divorce in December.

She too left her husband – which she says is only possible for women who are financially independent or who have the support of their parents. In the past this would have been more or less unthinkable.

Swarupa believes that divorce has certainly become more socially acceptable in India, but there are still problems.

“Personally, I don’t feel scared to tell people that I am a divorced person but stigmas are still there and it comes out in very odd places,” she said.

“I’ve been house-hunting near my ex-husband’s [home], but you know it is very difficult to get a house because people are very sceptical about giving it to a single woman.”

It seems inevitable that the divorce rate is going to continue to rise – which is good news for some.

Vivek Pahwa, for example, runs a Mumbai-based matchmaking website for divorcees called Secondshaadi.com.

He claims to get as many as 4,000 new customers every month.

“Ours is a relatively young website, but in the three years since we have started, I have seen a remarkable shift in people’s perceptions about divorce,” he says. “It is not only limited to metros like Delhi and Mumbai. Business is good

New Delhi: A Supreme Court judgement affirming the jurisdiction of Indian courts to deal with disputes of children’s custody even if they are foreign citizens has raised demands for the government to accede to the Hague Convention dealing with such disputes and thus protect the rights of non-resident Indians.

In a judgement with far-reaching implications for Indians living abroad, the Supreme Court bench of Justice V.S. Sirpurkar and Justice T.S. Thakur ruled that simply because a foreign court had passed an order, it did not mean that Indian courts should put off deciding on the issue.

‘Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor, it is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity, and not abject surrender, is the mantra in such cases,’ Justice Thakur wrote in the judgement.

This principle has been upheld by the apex court even earlier, but its reiteration in the recent judgement has raised demands for the government to take steps to accede to the Hague Convention on International Child Abduction.

Bangalore-based Children’s Rights Initiative for Shared Parenting has called for the government to sign the Hague Convention on the Civil Aspects of International Child Abduction.

In cases of one parent taking away the child to another country, the parent left behind is deprived of the custody of the child. The only solution for this crime is to sign the Hague Convention as it involves different aspects of private international law.

Supreme Court advocate Kirti Singh explained that Indian law does not recognise parental child abduction as a crime.

When one parent removes the child from the family home, or throws the mother out of the house – it is an offence against the child. The child is taken away to an alien atmosphere or is deprived of the presence of the mother and the child suffers due to the withdrawal from the familiar environment, Singh added.

The Hague Convention on the Civil Aspects of International Child Abduction, 1980, was a means of settling inter-country custody suits. India is not a party to the Hague Convention but with the large number of Indians living and working abroad, there is need to have amendments to the law to protect the rights of children in marital disputes.

The judgement was given on the appeal of a Delhi-based dentist against a Delhi High Court order overturning an interim order given by a city court in a custodial matter for her minor son.

The petitioner, mother of the 11-year-old son, had been awarded interim custody of the child by the trial court in Delhi.

The couple had been living in the US after their marriage, where their son was born. The appellant returned to India with her son in 2008 and filed an application for custody of the child under the Guardians and Wards Act.

Her US-based husband obtained a decree from a US court granting him custody of the child. He had further filed a case against his estranged wife for running away to India with their son despite a court decree granting him custody.

The Delhi High Court had set aside the trial court order, holding that an Indian court had no jurisdiction to decide on the matter as the father had been given custody of the child by a US court. The mother had appealed to the Supreme Court against the high court order.

The Supreme Court bench said since the interest and welfare of the child was of primary concern, a competent court in India was fully entitled and, indeed, duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. The apex court allowed the trial court to hear the mother’s application for custody of the child.

Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce . Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst . Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. A divorce may be either by the act of the husband or by the act of the wife. There are several modes of divorce under the Muslim law, which will be discussed hereafter.

Modes of Divorce: A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.

There are two categories of divorce under the Muslim law:
1.) Extra judicial divorce, and
2.) Judicial divorce

The category of extra judicial divorce can be further subdivided into three types, namely,
• By husband- talaaq, ila, and zihar.
• By wife- talaaq-i-tafweez, lian.
• By mutual agreement- khula and mubarat.
The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.

Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words talaaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law. The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited: “Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower) . When the husband exercises his right to pronounce divorce, technically this is known as talaaq. The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practiced it . The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does it is not very essential. In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity” . Among the Sunnis, talaaq may be express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq.

Conditions for a valid talaaq:
1.) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.

2.) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.

Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.
Shia law: Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.

3.) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in the presence of two witnesses.

4.) Express words: The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

Express Talaaq (by husband):
When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaaq, falls into two categories:
• Talaaq-i-sunnat,
• Talaaq-i-biddat.
Talaaq-i-sunnat has two forms:
• Talaaq-i-ahasan (Most approved)
• Talaaq-i-hasan (Less approved).

Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.

The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly. Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says “I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce. The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which one is certain to feel ashamed afterwards”

The hasan talaaq: In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.

Talaaq-i-Biddat: It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.

Ila: Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.

Zihar: In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.

Divorce by mutual agreement:
Khula and Mubarat: They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other. In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end . The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.

Divorce by wife:
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.

Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”. This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai , under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.

Lian: If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.

Dissolution of Muslim Marriages Act 1939:
Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939.

Section 2 of the Act runs thereunder:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:-
• That the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved.

• That the husband has neglected or has failed to provide for her maintenance for a period of two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.

• That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court.

• That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define ‘marital obligations of the husband’. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act.

• That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency.

• If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease: the husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground.

• That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated;

• That the husband treats her with cruelty, that is to say,-
(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.

In Syed Ziauddin v. Parvez Sultana , Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar Shah , a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty.

In Aboobacker v. Mamu koya , the husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.

In Itwari v. Asghari , the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health.

Irretrievable Breakdown: Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din , it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux , again an attempt was made to grant divorce on the ground of irretrievable breakdown of marriage. This time the court granted the divorce. Thus in Muslim law of modern India, there are two breakdown grounds for divorce: (a) non-payment of maintenancy by the husband even if the failure has resulted due to the conduct of the wife, (b) where there is total irreconcilability between the spouses.

Conclusion:
In contrast to the Western world where divorce was relatively uncommon until modern times, and in contrast to the low rates of divorce in the modern Middle East, divorce was a common occurrence in the pre-modern Muslim world. In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is today in the modern Middle East. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.In practice in most of the Muslim world today divorce can be quite involved as there may be separate secular procedures to follow as well. Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr, both the original gift and any supplementary property specified in the marriage contract. She is also given child support until the age of weaning, at which point the child’s custody will be settled by the couple or by the courts. Women’s right to divorce is often extremely limited compared with that of men in the Middle East. While men can divorce their spouses easily, women face a lot of legal and financial obstacles. For example, in Yemen, women usually can ask for divorce only when husband’s inability to support her life is admitted while men can divorce at will. However, this contentious area of religious practice and tradition is being increasingly challenged by those promoting more liberal interpretations of Islam.

6. DELHI HIGH COURT HINDU MARRIAGE RULES, 1979

1. Short title.—These rules may be called the Hindu Marriage Rules, 1979.

2. Commencement.—The rules shall come into force from the date of their publication in the Delhi Gazette.

3. Definitions.—In these rules unless there is anything repugnant in the subjct or context:

(a)   ‘Act’ means the Hindu Marriage Act, 1955 (No.25 of 1955) as amended from time to time.

(b)   ‘Code’ means the Code of Civil Procedure, 1908 as from time to time modified or amended.

(c)   ‘Court’ means the Court mentioned in Section 3(W of the Act.

(d)   ‘Form’ means a form appended to these rules.

(e)   ‘Section ‘ and sub-section mean respectively Section and sub-section of the Act.

(f)   All other terms and expressions used herein but not defined shall have the meanings respectively assigned to them in the Act.

4. Petitions.—(a) Every petition under the Act shall be accompanied by either a certified extract from the Hindu Marriage Register maintained under Section 8 of the Act, where the marriage has been registered under the Act or in the absence of the same, an affidavit to the effect that the petitioner was married to the respondent (unless the certificate or affidavit is alreay on the record or is for sufficient cause dispensed with by the Court.)

(b) Every petition for divorce on any of the grounds mentioned in clauses (i) and (ii) of sub-section (1-A) of Section 13 of the Act shall be supported by a certified copy of the decree for judicial separation or for restitution of conjugal rights, as the case may be.

5. Forms of proceedings.—The following proceedings under the Act shall be initiated by petition :

(i)                 under Section 9 for restitution of conjugal rights;

(ii)                under sub-section (1) of Section 10 for judicial separation;

(iii)             under sub-section (2) of Section 10 for rescinding a decree for judicial

            separation;

         (iv) under Section 11 for declaring a marriage null and void;

         (v)  under Section 12 for annulment of marriage by a decree of nullity.

        (vi)  under Section 13 for divorce;

(vii)   under Section 13-B for divorce by mutual consent;

(viii)   under Section 14 for leave to present a petition for divorce before the expiration of one year from the date of marriage;

(ix)   under Section 26 for making, revoking, suspending or varying orders and provisions with respect to the custody, maintenance and education of minor children.

6. Petition by or against a person suffering from mental disorder.—A

person suffering from mental disorder will be treated in all respects as a person of unsound mind for the purpose of Order XXXII of the Code.

1. Vide No.262/Gazette OSD (R) Delhi, 16th October, 1979.

7. Contents of petition.—In addition to the particulars required to be given under Order VII, Rule I of the Code and Section 20 (1) of the Act, all petitions under Secs.9 to 13 shall state—

(a)   the place and date of marriage;

(b)   whether the petitioner and the respondent were Hindu by religion at the time of the marriage and whether they continue to be so up to the date of filing of the petition;

(c)   the name, status and domicile of the wife and the husband before the marriage and at the time of filing the petition;

(d)   the address where the parties of the marriage reside at the time of the presentation of the petition and last resided, together;

(e)   the names of children, if any, of the marriage, their sex and their dates of birth or ages;

(/)   if prior to the date of the petition there has been any proceeding under the Act between the parties to the petition, full particulars thereof;

(g)   the matrimonial offence or offences alleged or other ground, upon which the relief is sought, setting out with sufficient particularity the time and places of the acts alleged and other facts relied upon, but not the evidence by which they are intended to be proved , e.g.—

(i)   if the petition is for restitution of conjugal rights the-date on or from which and the circumstances under which the respondent withdraw from the society of the petitioner;

(ii)   if the petition is for a decree of nullity of marriage on the grounds specified in clauses (c) and (d) of sub-section (1) of Section 12 of the Act, the particulars of force or fraud and the circumstances in which force or fraud had been practised along with the time when the facts relied upon ~ were discovered and whether or not marital intercourse with the consent of the petitioner took place after the discovery of the said facts;

(iii)   in every petition for judicial separation/divorce by either the husband or the wife on the ground that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, the petitioner shall state the name, occupation and place of residence of such person or persons so far as they can be ascertained, the specific acts of sexual intercourse and the occasion when and the place where such acts were committed.

(iv)   in the case of alleged desertion, the date and the circumstances in which it began, in the case of cruelty the specific acts of cruelty and the occasion when and the place where such acts were committed;

(v)   in the case of unsoundness of mind or mental disorder the time when such unsoundness of mind or mental disorder began to manifest itself and the nature and the period of the curative steps taken;

(vi)   in the case of virulent and incurable form of leprosy or venereal disease in communicable form, when such ailment began to manifest and the nature and the period of the curative steps taken;

(vii)   if the petition is on the ground specified in Section 13 (1), the date of renunciation and the particulars of the religious order which the respondent has entered into;

 (viii)   if the petition is on the ground specified in Section 13 (1) (vii), the date and the place where “the respondent was last seen or heard of alive and the steps, if any, taken to  ascertain his or her whereabouts;

(ix)                               where the petition is founded on the ground of rape or sodomy, the

              occasion when, the place where and the names and the addresses of

           persons with whom, such acts were committed. In case of conviction

           for committing rape or sodomy, the particulars thereof;

                  (_x) where the petition is founded on the ground of bestiality,
the occasion when, the place where and the particulars, of
the beast with whom, the husband had been guilty of
bestiality;

(xi)  in the case of divorce under Section 13(2) (iii) of the Act, particulars of the decree under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or of order under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding Section 488 of the Code of

Criminal Procedure, 1998), together with an affidavit that since the passing of such decree, or order, cohabitation between the parties has not been resumed for one year or upwards;

(xii)   in the case of divorce under Section 13(2) the date and the place of birth of the wife together with the date and the place of reputation and its mode;

(h)   the property mentioned in Section 27 of the Act, if any;

(i)   the relief or reliefs, prayed for.

8. Affidavit of non-collusion.—Every petition excepting petitions under Section 11 shall be accompanied by an affidavit to the effect that it is not presented or prosecuted in collusion with the respondent. In the petition seeking judicial separation/divorce on the ground that the party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, it will also state that the petitioner has not, in any manner, been accessory to or connived at the acts complained of.

9. Affidavit of non-condonation.—Where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 13 or where the ground for the petition is cruelty, the petition shall be accompanied by an affidavit to the effect that the petitioner has not condoned the act or acts complained of or not in any manner condoned the cruelty.

10. Affidavit of non-cohabitation.—Every petition under Section 13 (1-A) (i) of the Act shall be accompanied by an affidavit made by the petitioner that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.

11. Affidavit of non-restitution of conjugal rights.—Every petition under Section 13 (1-A) (ii) of the Act shall be accompanied by an affidavit made by the petitioner of the fact that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

12. Necessary parties.—(a) In every petition for divorce/judicial separation on the ground that the respondent has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, the petitioner shall make the alleged adulterer or adultress a co-respondent to the petition. The petitioner may, however, apply to the Court, on application supported by affidavit for leave to dispense with the joinder of such person as a co-respondent on any of the following grounds;

(i)   that the name of such person is unknown to the petitioner although he/she has made due efforts for discovery;

(ii)   that such person is dead;

(iii)   that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no person with whom voluntary sexual intercourse has been committed; or

(iv)   any other reason that the Court considers sufficient.

(b) In every petition under Section 13 (2) (i) of the Act the petitioner shall make the “other wife” mentioned in that Section a co-respondent.

(c) In every petition under Section 11 of the Act on the ground that the condition in Section 5 (i) is contravened the petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.

13. Application for leave under Section 14 of the Act.—(1) In support of an application for leave under Section 14 of the Act there shall be filed an affidavit by the applicant stating the grounds on which the application is made, the particulars of the exceptional hardship or exceptional depravity alleged, whether there has been any previous application under the said Section , whether there are living any children of the marriage, if so, the names and dates of birth or ages of such children, their sex, where and with whom they are residing, whether any and, if so, what attempts at reconciliation have been made under any circumstances which may assist the Court to determine the question whether there is reasonable probability of a reconciliation between the parties.

(2) Notices of the application shall be given to the respondent who may contest the same by filing affidavit in opposition.

(3) In exceptional circumstances the Court may, if necessary, order a deponent to be cross-examined on his or her affidavit.

(4) The application shall be accompanied by the petition intended to be filed.

(5) When the Court grants leave, the petition shall be deemed to have been duly filed on the date of the said order, provided proper Court-fee thereon is paid within the time allowed by the Court.

14. Notices.—The Court shall issue notice in Form ‘A’ accompanied by a copy of petition to the respondent and the co-respondent, if any. The notice shall require, unless the Court otherwise directs the respondent or correspondent to file his or her written statement in Court on or before the date fixed in the notice.

15. Written statement in answer to petition.—Where a counter-claim is made in terms of Section 23-A, it shall comply with the Rules applicable to petitions on the like grounds.

16. Application for alimony and maintenance.—Every application for maintenance pendente lite, permanent alimony and maintenance, or for custody, maintenance and education expenses of minor children, shall be supported by an affidavit and shall state the average monthly income of the petitioner

and the respondent, the sources of their income, particulars, of other movable and immovable property owned by them jointly or severally, the details of their liabilities, if any, along with the number of their dependants, if any, and the names and ages of such dependants.

17. Supply of certified copy of the decree to the parties.—(1) In every cause where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties. The copy so supplied shall be authenticated as ‘true copy’ by the Court passing the decree.

(2) The Court shall maintain a register where the particulars of the decree shall be incorporated and signatures of the parties or their Advocates or agents shall be obtained in token of their having received a copy of the decree.

18. Forms.—The forms given in the Appendix to these rules with such variations as the circumstances of each case may require, shall be used.

FORM A

In the District Court at. ………………

Matrimonial and Divorce Jurisdiction Case No. ………….

Date of institution. …………………

…………………………………………………………..                                  Petitioner

Versus

………………………………………………….                                             Respondent

………………………………………………,….                                       Co-respondent

To

Whereas. ……………….. .has presented a petition/application

against you for………………… .under section_,………… .of

the Hindu Marriage Act, 1955 (No.25 of 1955) (a copy of the said petition/ application is sent herewith), you a*re hereby summoned to appear in this Court on the. …………… at 10 o’clock in the forenoon to answer the

said petition/application on……………either in person or by recognized

agent duly instructed and able to answer all material questions relating to the case or who shall be accompanied by some other person able to answer all such questions or by an advocate, similarly instructed or accompanied and you are directed to produce on that day all documents upon which you intend to rely in support of your defence. You should file a written statement/ answer to the petition/application on the date mentioned above.

You are further informed that in default of your appearance on the ….    ,

. . day. ………… .and in the manner above-mentioned, the petition/.

application shall be heard and determined in your absence.

Given under my hand and the seal of this Court, this…………….

day of………….. Two thousand and…………..

Dated. ……………..           District Judge at. ……………

FORM B

In the District Court at. ……………….

………………………………………………………………………………..Petitioner

Versus …………………………………………………………………………….Respondent

Petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (No.25 of 1955)

The petitioner prays as follows :

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies on………………….at………………….The said marriage is

registered with the Registrar of Marriages. A certified copy of the relevant extract from the Hindu Marriage Register………………….is filed herewith and

an affidavit duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the petition were as follows :

————————————————————————————————————–

Husband                                               Wife

(i)                 Before marriage

(ii)                (ii)    At the time of filing the petition

—————————————————————————————————————-

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. The respondent has, without reasonable excuse, withdrawn, from the society of the petitioner with effect from………………….

(The circumstances under which  the respondent withdrew from  the society of the petitioner be stated).

5. The petition is not presented in collusion with the respondent.

6. There has not been any unnecessary or improper delay in filing the petition.

7. There is no other legal ground why the relief should not be granted.

8. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

Or,

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties :

Serial No.

Names of parties

Nature of proceedings with Section of the Act

Number and year of the case

Name and location of the Court

(i)

(ii)

 (iii)

 (iv)

9. The marriage was solemnized at………………….The parties last resided

together at………………….The parties are now residing at………………….(within

the local limits of the ordinary original jurisdiction of this Court).

10. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

11. The petitioner prays for a decree for restitution of conjugal rights against the respondent.

(Signature)

Verification

The above named petitioner states on solemn affirmation that paras 1 to………………….of the petition are true to the petitioner’s knowledge and

paras ………………….to ………………….are true to the petitioner’s information

received and believed to be true by him/her.

Verified………………….(place)

Dated………………….

Petitioner

FORM C

In the District Court at. ………………..

…………………………………………………………………………………………..Petitioner

Versus

………………………………………………………………………………………..Respondent

……………………………………………………………………………………Co-Respondent

Petition for judicial separation under Section 10 of the Hindu Marriage Act, 1955 (No. 25 of 1955)

The petitioner prays as follows :

1. A marriage was solemnized between the parties/petitioner and ther respondent according to Hindu rites and ceremonies on………………….

at………………….The said marriage is registered with the Registrar of

Marriages. A certified copy of the relevant extract from the Hindu Marriage Register………………….is filed herewith.

An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the petition were as follows.

Husband                                                                Wife

Status       Age               Place of              Status         Age       Place of
                  residence                                            residence

(i)                 Before marriage

(ii)               At the time of filing the petition

(Whether a party is a Hindu by religion or not is a part of his or her status.)

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. The respondent has………….(any one or more of the grounds available

under Section 10 may be pleaded here. The matrimonial offences charged should be set out in separate paragraphs with times and places of their alleged commission. The facts on which the claim to relief is founded should be stated in accordance with the Rules and as distinctly as the nature of the case permits).

5. Where the ground of petition is on the ground specified in clause (1) of Section 13(1), the petitioner has not in any manner been accessory to or connived at or condoned the acts complained of.

6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned the cruelty.

7. The petition is not presented in collusion with the respondent.

8. There has not been any unnecessary or improper delay in filing the petition.

9. There is no other legal ground why the relief should not be granted.

10. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

Or,

There have been the following previous proceedings with regard to the marriage by or on behalf of the parries.

Serial No.

Names of parties

Nature of proceedings with Section of the Act

Number and year of the case

Name and location of the Court

(i)

(ii)

(iii)

 (iv)

11. The marriage was solemnised at………………..The parties last resided

together at………………..The parties are now residing at ………………..(within

the local limits of the ordinary original jurisdiction of this Court)

12. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

13. The petitioner, therefore, prays for a decree for judicial separation against the respondent.

Petitioner

Verification

The above-named petitioner states on solemn affirmation that paras 1 to……………………of the petition are true to the petitioner’s knowledge and

paras………………..to………………..are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………..(place)

Dated………………..

Petitioner

FORMD

In the District Court at. ……………….

……………………………………..                                                            Petitioner

Versus

…………………………………………                                                                 Respondent

Petition for a decree of nullity of marriage under Section 11 of the Hindu Marriage Act, 1955 (No.25 of 1955).

The petitioner prays as follows^_______

1. A marriage was solemnized between the parties according to Hindu_ rites and ceremonies after the commencement of the Hindu Marriage Act on………………..at………………..A certified copy of the relevant extract from

the Hindu Marriage Register is filed.

An affidavit is duly attested herewith.

2.  The status and place of residence of the parties to the marriage before the marriage and at the time of filling the petition were as follows.

Husband                                               Wife

(iii)             Before marriage

(iv)               At the time of filing the petition

——————————————————————————————————

(Whether a party is a Hindu by religion or not is a part of his or her

status).                                                                                                                  

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. The respondent had a spouse living at the time of the marriage (give full particulars).

The parties are within the degrees of prohibited relationship and there is no custom or usage governing each of them which permits of a marriage between the two. (Specify the exact relationship between the parties).

The parties are sapindas of each other and there is no custom or usage governing each of them which permits of a marriage between the two. (Specify the exact relationship between the parties).

(One or more of the above grounds may be pleaded, and portions which are not applicable should be scored out. Facts on which the claim to relief is founded should be stated in compliance with the Rles and as distinctly as the nature of the case permits.)

5. There has not been any unnecessary or improper delay in filing the petition.

6. There is no other legal ground why relief should not be granted.

7. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

Or,

There have been the following previous proceedings with regard to the

marriage by or on behalf of the parties.

8. The marriage was solemnized at………………..The parties last resided

together at………………..The parties are now residing at ………………..(within

the local limits of the ordinary original jurisdiction of this Court).

9. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

10. The petitioner, therefore, prays that the marriage solemnized between the parties being null and void may be so declared by the Court by a decree of nullity.

Verification

The above named petitioner states on solemn affirmation that paras 1 to………………..of the petition are true to the petitioner’s knowledge and

paras………………..to………………..are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………..(place)

Dated………………..

Petitioner

FORM E

In the District Court at. ……………….

………………………………………………..                                                 Petitioner

Versus

 ……………………………………………………..                                            Respondent

………………………………………………………                                            Co-respondent

Petition for a decree of nullity of marriage under Section 11 of the Hindu Marriage Act, 1955 (No.25 of 1955).

The petitioner prays as follows :

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies after the commencement of the Hindu Marriage Act on………………..at………………..A certified copy of the relevant extract from

the Hindu Marriage Register is filed herewith.

An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filling the petition were as follows.

Husband                                               Wife

(v)                Before marriage

(vi)               At the time of filing the petition

——————————————————————————————————

(Whether a party is a Hindu by religion or not is a part of his or her ^: status).

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. (One or more of the grounds as specified in Section 12 of the Act may be pleaded here. Facts on which the claim to relief is founded should be stated in accordance with the Rules and as distinctly as the nature of the case permits.)

5. The petition is not instituted in collusion with the respondent.

6. There has not been any unnecessary or improper delay in filing the petition.

7. There is no other legal ground why relief should not be granted.

8. There have not been any previous proceedings with regard to the marriage by or on behalf of any parties.

Or,

There have been the following previous, proceedings with regard to the marriage by or on behalf of the parties.

9. The marriage was solemnised at………………..The parties last resided

together at………………..The parties are now residing at ………………..(within

the local limits of the ordinary original jurisdiction of this Court).

10. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

11. The petitioner, therefore, prays that the marriage between the parties being voidable may be anulled by the Court by a decree of nullity.

Petitioner Verification

The above-named petitioner states on solemn affirmation that paras 1 to………………..of the petition are true to the petitioner’s knowledge and

paras………………..to……………….are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………..(place)

Dated………………..                                                            Petitioner

FORM F

In the District Court at. ……………….

……………………………………………………………………………Petitioner

Versus

……………………………………………………………………….Respondent

…………………………………………………………………..Co-respondent

Petition of dissolution of marriage by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (No.25 of 1955).

The petitioner prays as follows :

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies after the commencement of the Hindu Marriage Act, 1955 on ……………….at……………….

A certified copy of the relevant extract from the Hindu Marriage Register is filed herewith.

An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the petition were as follows :

Husband                                               Wife

(i)   Before marriage (ii)   At the time of filing the petition

(Whether a party is a Hindu by religion or not is a part of his or her status.)

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages).

4. The respondent……………….(one or more of the grounds specified in

Section 13 may be pleaded here. The facts on which the claim to relief is founded should be stated in accordance with the Rules and as distinctly as the nature of the case permits. If the ground as specified in clause (i) of Section 13 (1) is pleaded, the petitioner should give particulars as nearly as he can, of facts of voluntary sexual intercourse alleged to have been committed. The matrimonial offence /of fences charged should be set out in separate paragraphs with the times and places of their alleged commission).

5. (Where the ground of petition is the ground specified-m clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connieved at or condoned the act (s) complained of.]

6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned the cruelty.

7. The petition is not presented in collusion with the respondent.

8. There has not been any unnecessary or improper delay in filing the petition.

9. There is no other legal ground why the relief should not be granted.

10. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

Or,

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties :

11. The marriage was solemnized at………….. ….The parties last resided

together at………………….The parties are now residing at……………….(within

the local limits of the ordinary original jurisdiction of this Court).

12. The petitioner submits that this Hon’ble Court has jurisdiction to entertain this petition.

13. The petitioner, therefore, prays that the marriage between the petitioner and the respondent may be dissolved by a decree of divorce.

Petitioner Verification

The above-named petitioner states on solemn affirmation that paras 1 .of the petition are true to the petitioner’s knowledge and paras………………….to………………….are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………….(place)

Dated………………….

Petitioner

In the District Court at………………….

…………………………………………………………………………Petitioner No.l

…………………………………………………………….Petitoner No. 2

Petition for dissolution of marriage by a decree of divorce by mutual consent under Section 13-B (1) of the Hindu Marriage Act, 1955 (No.25 of 1955) as amended by the Marriage Laws (Amendment) Act, 1976.

The petitioners prays as follows.

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies on………………….at………………….A certified copy of the

relevant extract from the Hindu Marriage Register is filed herewith. An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filling the petition were as follows.

Husband                                               Wife

(vii)            Before marriage

(viii)           At the time of filing the petition

——————————————————————————————————

 (Whether a party is a Hindu by religion or not is a part of his or her status.)

3. (In this paragraph state the place where the parties to the marriage last resided together and the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. The parties to the petition have been living separately since………………….and have not been able to live together since then.

5. The parties to the petition have mutually agreed that their marriage should be dissolved.

6. The mutual consent has not been obtained by force, fraud or undue influence.

7. The petition is not presented in collusion with each other.

8. There has not been any unnecessary or improper delay in instituting the proceedings.

9. There is no other legal ground why relief should not be granted.

10. The petitioners submit that this Court has jurisdiction to entertain this petition.

 11. The petitioners, therefore, pray that the marriage between the parries may be dissolved by a decree of divorce.

Petitioners

Verification

The above-named petitioners state on solemn affirmation that paras 1 to………………….to the petition are true to petitioners knowledge and paras

………………….to………………….are true to the petitioners information received

and believed to be true by them.

Verified at………………….(place)

Dated………………….

Petitioners

FORM H

In the District Court at………………….

……………………………………………………………………………Petitioner

Versus

………………………………………………………………………….Respondent

Petition under Section 14 of the Hindu Marriage Act, 1955 (No.25 of 1955) praying that a petition for divorce may be allowed to be presented within one year of the marriage.

The petitioner prays as under :

1. A marriage was solemnized between the parries according to Hindu rites and ceremonies on………………….at………………….

A certified copy of the relevant extract from the Hindu Marriage Register is filed herewith. An affidavit is duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the petition were as follows :

Husband                                               Wife

(ix)              Before marriage

(x)                 At the time of filing the petition

——————————————————————————————————

 (Whether a party is a Hindu by religion or not is a part of his or her status).

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or ages.)

4. This is a case of exceptional hardship of the petitioner/exceptional depravity on the part of the respondent (state here in accordance with the Rules and as distinctly as the nature of the case permits all the particulars about the exceptional hardship or depravity, as the case may be).

5. The marriage was solemnized at………………….The parties last resided

together at………………….(within the local limits of the ordinary original

jurisdiction of this Court).

6. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain the application.

7. The petitioner, therefore, prays that he/she may be allowed to present a petition for divorce within one year of the marriage.

Petitioner

Verification

The above-named petitioner states on solemn affirmation that paras 1 to ………………….of the petition are true to the petitioner’s knowledge and

information received and believed to be true by him/her.

Verified at………………….(place).

Dated………………….

Petitioner

FORM I

In the District Court at……………………………………………………………………….

…………………………………………………………………………………Petitioner

Versus

……………………………………………………………………………..Respondent

Petition for maintenance pendente lite and for expenses of proceedings under Section 24 of the Hindu Marriage Act, 1955 (Act No.25 of 1955).

The petitioner prays as follows :

1. A proceeding for………………….under Section ………………….of the Hindu

Marriage Act, 1955 is pending between the parties in this Court, .the next date of hearing whereof is………………….

2. The petitioner owns no other movable or immovable property and has no other source of income except the following………………….(give full

particulars of the petitioner’s property and income).

3. The petitioner has no independent income sufficient for his/her support and the necessary expenses of the proceeding. The respondent has not made any provision for the petitioner’s maintenance.

4. The respondent has sources of income and owns movable and immovable property mentioned below.

………………….(give full particulars of respondent’s income and property).

5. The only person dependent upon the respondent is the petitioner himself/herself and (give here the details, of the liabilities, if any, of the parties along with the details of the dependants, if any, and the names and ages of such dependants.)

6. The petitioner submits that having regard to the respondent’s own

-income and his/her property and having regard to the conduct of the

respondent and the petitioner, a sum of Rs…………………..per month as and

by way of maintenance and support is the just proper amount for the maintenance and support of the petitioner.

7. The petitioner prays that the respondent should be ordered to pay a sum of Rs…………………..as the petitioner’s expenses of the proceedings and a

sum of Rs………………….monthly for petitioner’s maintenance during the

proceedings.

Petitioner

Verification

The above-named petitioner states on solemn affirmation that paras 1 to………………….of the petition are true to the petitioner’s knowledge and

paras………………….to………………….are true to the petitioner’s information

received and believed to be true by him/her.

Verified at………………….(place)

Dated………………….

Petitioner

FORM J

In the District Court at. ………………

…………………………………………………………….                                   Petitioner

Versus

 ………………………………………………………………                                Respondent

Application for permanent alimony and maintenance under Section 25 of the Hindu Marriage Act, 1955 (No.25 of 1955).

The applicant prays as follows.

1. A proceeding between the parties for………………….under Section

………………….of the Hindu Marriage Act, 1955, is pending in this Court, was

decided, particulars of which are given below :

(In case main proceedings give only the next date of hearing)

2. The applicant owns no other movable or immovable property and has no other source of income except the following………………….(give full

particulars about applicant’s income and property).

3. The respondent has sources of income and owns movable and immovable property mentioned below.

………………….(give full particulars of respondents income and property).

4. The only person dependent upon the respondent is the applicant himself/ herself or the applicant and (give here the details of the liabilities, if any, of the parties along with the details of the dependants).

5. The respondent has not made any provision for the applicant’s maintenance.

6. The applicant has not remarried and has not been guilty of any conduct which would disentitle him/her to receive maintenance from the respondent.

7. The applicant submits that he/she is entitled to alimony for his/her maintenance and support in any amount sufficient to maintain the standard of life to which he/she is accustomed.

8. The applicant prays that having regard to the income of the parties, their conduct and other circumstances of the case, the respondent may be ordered to pay to the applicant for his/her maintenance and support until death or remarriage a gross/monthly/periodical sum of Rs…………………..(score

out portion not necessary) and such payment may be secured by a charge on the immovable property of the respondent.

Applicant

Verification

The above-named applicant states on solemn affirmation that paras 1 to………………….of the application are true to the applicant’s knowledge and

paras………………….to………………….are true to the applicants information

received and believed to be true by him/her.                                  

Verified at………………….(place)

Dated………………….

                                                                                      Applicant

Live- in Relationship

Cohabitation (also called Live In relationship) is an arrangement whereby two people decide to live together on a longterm or permanent basis in an emotionally and/or sexually intimate relationship. Here an unmarried couple lives together in a long-term relationship that resembles a marriage. Today this concept is hotly debated in India.
The virtues and vices of this arrangement are naturally contested vis-a-vis marriage. Marriage is generally defined as a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways.The different facets of marriage include legal, social, emotional, economical, spiritual, and religious. The act of marriage usually creates normative or legal obligations between the individuals involved. It is usually recognized by the State, a religious authority, or both.
Yet despite its wider ambit, there are many people who come forth as votaries of cohabitation in preference to marriage. I present here a few facts on the basis of which I find myself being an ardent supporter of marriage as an institution as opposed to Live-in relationship–
1. Life, all said and done, is a compromise. No one has complete control on things and situations around. This includes the choice to have a perfect and/or ideal mate. We would all like to have a person as our life-partner who is perfect in our eyes in all possible aspects. But is it actually possible? Isn’t it only a wishful thought? And are we ourselves perfect?
This means that if we want to live the best possible life, we need to go for suitable compromises at every step. This also includes marriage. So, if one finds a person suitable enough for oneself, one might as well go for a married relationship instead of opting for a Live-in relationship.
2. Marriage has as much an option of devolution as a Live-in relationship has. The only difference is that marriage being some kind of socio-legal contract, it naturally needs a formal procedure to be adopted before separation takes places. But at the same time, does it not also ensure many of the rights of the marriage partners as well.
Instead in a Live-in relationship, each of the partners is entitled only to that extent which they have agreed upon in black and white. And one can very well understand how impractical it is to assume that an unmarried couple would be going for all kinds of written agreements while they are in an intimate relationship. Neither would the two have that much skill and background to come up with legal agreements not would the situations make it easy for the two to go for such formalities.
Thus both the partners would find themselves devoid of any legal guarantees and rights once the relationships sour and the two are thinking of parting their ways. In such situations, both or at least one of them would invariably feel cheated in a big way over the entire episode
3. Today divorce is not a very complicated process (and if it is so, then we must get it simplified) and hence to get rid of relationships that are difficult to be carried forth one can always choose the method of divorce. Hence, Live-in relationship and marriage are very similar in nature except the robustness and socio-legal strength of a marriage vis-a-vis Live-in relations
4. No one knows how events will take shape in future. In all such situations, if one of the partners starts developing all kinds of problems and complications of physical and financial nature, then the institution of marriage gives at least some kind of security and even in the case of divorce, there is a proper compensation.
Instead, a Live-in relationship makes such a partner completely helpless and he/she is at the sheer mercy of the other partner, where the probability of such partner leaving the other in a lurch is always fairly high
5. The most affected persons are the children. In marriage, the children feel secure mentally and socially and even in divorce, they have some kind of social approval. The Live-in relationship has huge emotional price on these young children who find themselves very awkwardly placed
6. Same is the situation of other family members. They do not feel themselves having as much right and authority in a Live-in relation couple as they do in the midst of a married couple, who have a social sanction as well
Summing it up, it seems to me that Live-in relationship (or Cohabitation) is nothing but a baser and distorted version of marriage having all the drawbacks, burdens and problems of a married life but having none of its guarantee and security.

Dr Nutan Thakur,
Editor,
People’s Forum,
Lucknow

marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees:

Provided that no woman shall be punishable with imprisonment.

(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.

Promoting   or   permitting   solemnisation   of  child   marriage   is   punishable   with imprisonment upto two years and fine upto Rupees one lakh. (Notes on Clauses).

12. Marriage of a minor child to be void in certain circumstances.—Where a child, being a minor—

(a) is taken or enticed out of the keeping of the lawful guardian; or

(b) by force compelled, or by any deceitful means induced to go from any
place; or                                                 

(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,

such marriage shall be null and void.

13. Power of Court to issue injunction prohibiting child marriages.

(1) Notwithstanding anything to the contrary contained in this Act, if, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage.                                                    

(2) A complaint under sub-section (1) may be made by any person having personal knowledge or reason to believe, and a non-governmental organisation having reasonable information, relating to the likelihood of taking place of solemnisation of a child marriage or child marriages.

(3) The Court of the Judicial Magistrate of the first class or the Metropolitan Magistrate may also take suo motu cognizance on the basis of any reliable report or information.              

(4) For the purposes of preventing solemnisation of mass child marriages on certain days such as Akshaya Tnitiya, the District Magistrate shall be deemed to be the Child Marriage Prohibition Officer with all powers as are conferred on a Child Marriage Prohibition Officer by or under this Act.

(5) The District Magistrate shall also have additional powers to stop or prevent solemnisation of child marriages and for this purpose, he may take all appropriate measures and use the minimum force required.

(6) No injunction under sub-section (1) shall be issued against any person or member of any organisation or association of persons unless the Court has previously given notice to such person, members of the organisation or association of persons, as the case may be, and has offered him or them an opportunity to show cause against the issue of the injunction:

Provided that in the case of any urgency, the Court shall have the power to issue an interim injunction without giving any notice under this section.

(7) An injunction issued under sub-section (1) may be confirmed or vacated after giving notice and hearing the party against whom the injunction was issued.

(8) The Court may either on its own motion or on the application of any person aggrieved, rescind or alter an injunction issued under sub-section (1).

(9) Where an application is received under sub-section (1), the Court shall afford the applicant an early opportunity of appearing before it either in person or by an advocate and if the Court, after hearing the applicant rejects the application wholly or in part, it shall record in writing its reasons for so doing.

(10) Whoever knowing that an injunction has been issued under sub­section (1) against him disobeys such injunction shall be punishable with imprisonment of either description for a term which may extend to two years or with fine which may extend to one lakh rupees or with both:

Provided that no woman shall be punishable with imprisonment.

y. A Judicial or a Metropolitan Magistrate can issue an injunction prohibiting child marriage on an application by Child Marriage Prohibition Officer or on a complaint or suo

motu. (Notss on Clauses).        

14. Child marriages in contravention of injunction orders to be void.—

Any child marriage solemnised in contravention of an injunction order issued under section 13, whether interim or final, shall be void abinitio.

  15. Offences   to   be   cognizable   and   non-bailable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an . offence punishable under this Act shall be cognizable and non-bailable.

. 16. Child Marriage Prohibition Officers.—(1) The State Government shall, by notification in the Official Gazette, appoint for the whole State, or such part thereof as may be specified in that notification, an officer or officers to be known as the Child Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification.

(2) The State Government may also request a respectable member of the locality with a record of social service or an officer of the Gram Panchayat or Municipality or an officer of the Government or any public sector undertaking or an office bearer of any non-governmental organisation to assist the Child Marriage Prohibition Officer and such member, officer or office bearer, as the case may be, shall be bound to act accordingly.
(3) It shall be the duty of the Child Marriage Prohibition Officer—

(a) to prevent solemnisation of child marriages by taking such action as
he may deem fit;                                                        

(b) to collect evidence for the effective prosecution of persons contravening the provisions of this Act;

(c)‘to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages;

(d) to create awareness of the evil which results from child marriages;

(e) to sensitize the community on the issue of child marriages;

(f) to furnish such periodical returns and statistics as the State Government may direct; and

(g) to discharge such other functions and duties as may be assigned to him by the State Government.

(3) The State Government may, by notification in the Official Gazette, subject to such conditions and limitations, invest the Child Marriage Prohibition Officer with such powers of a police officer as may be specified in the notification and the Child Marriage Prohibition Officer shall exercise such powers subject to such conditions and limitations, as may be specified in the notification.

(4) The Child Marriage Prohibition Officer shall have the power to move the Court for an order under sections 4,5 and 13 and alongwith the child under section 3.

17. Child Marriage Prohibition Officers to be public servants.—The Child Marriage Prohibition Officers shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

18. Protection of action taken in good faith.—No suit, prosecution or other legal proceedings shall lie against the Child Marriage Prohibition Officer in respect of anything in good faith done or intended to be done in pursuance of this Act or any rule or order made thereunder.

19. Power of State Government to make rules.—(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.

(2) Every rule made under this Act shall, as soon as may be after it is made, be laid before the State Legislature.

State Government is empowered to make rules for carrying out the provisions of the Act. (Notes on Clauses).

20. Amendment of Act No. 25 of 1955.—In the Hindu Marriage Act, 1955, in section 18, for clause (a), the following clause shall be substituted, namely:—

“(a) in the case of contravention of the condition specified in clause (hz) of section 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both”.                                                      

21. Repeal and savings.—(1) The Child Marriage Restraint Act, 1929 (19 of 1929) is hereby repealed.                            

(2) Notwithstanding such repeal, all cases and other proceedings pending or continued under the said Act at the commencement of this Act shall be continued and disposed of in accordance with the provisions of the repealed Act, as if this Act had not been passed.

THE PROHIBITION OF CHILD MARRIAGE ACT, 2006*

(6 OF 2007)

[10th January,2007]

An Act to provide for the prohibition of solemnisation of child marriages and for matters connected therewith or incidental thereto.

be it enacted by Parliament in the Fifty-seventh Year of the Republic of India as follows:—                                                  

Statement of Objects and Reasons.—The Child Marriage Restraint Act, 1929 was enacted with a view to restraining solemnisation of child marriages. The Act was subsequently amended in 1949 and 1978 in order, inter alia, to raise the age limit of the male and female persons for the purpose of marriage. The Act, though restrains solemnisation of child marriages yet it does not declare them to be void or invalid. The solemnisation of child marriages is punishable under the Act.

2. There has been a growing demand for making the provisions of Act more effective and the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of solemnisation of child marriages in the country. This will enhance the health of
children and the status of women. The National Commission for Women in its Annual Report for the year 1995-96 recommended that the Government should appoint Child Marriage Prevention Officers immediately. It further recommended that—(/) the punishment provided under the Act should be made more stringent; (if) marriages performed in contravention of the Act should be made void; and (in) the offences under the Act should be made cognizable.                                                             

3. The National Human Rights Commission undertook a comprehensive review of the existing Act and made recommendations for comprehensive amendments therein vide its Annual Report 2001-2002. The Central Government, after consulting the State Governments and Union territory Administrations on the recommendations of the National Commission for Women and the National Human Rights Commission, has decided to accept almost all the recommendations and give effect to them by repealing and re-enacting the Child Marriage Restraint Act, 1929.

4. The salient features of the Bill are as follows:—                   

(i) To make a provision to declare child marriage as voidable at the option of the contracting party to the marriage, who was a child.

(ii) To provide a provision requiring the husband or, if he is a minor at the material time, his guardian to pay maintenance to the minor girl until her remarriage.

(Hi) To make a provision for the custody and maintenance of children born of child marriages.

(iv) To provide that notwithstanding a child marriage has been annulled by a decree of nullity under the proposed section 3, every child born of such marriage, whether before or after the commencement of the proposed legislation, shall be legitimate for all purposes.

(v) To empower the district Court to add to, modify or revoke any order relating to maintenance of the female petitioner and her residence and custody or maintenance of children, etc.

(vi) To make a provision for declaring the child marriage as void in certain circumstances.

Received the assent of the President on 10-1-2007, published in the Gazette of India, Ext., Pt. II, S.I, dated 11-1-2007.                 

(vii) To empower the Courts to issue injunctions prohibiting solemnisation of marriages in contravention of the provisions of the proposed legislation.

(viii) To make the offences under the proposed legislation to be cognizable for the purposes of investigation and for other purposes.

(ix) To provide for appointment of Child Marriage Prevention Officers by the State Governments.

(x) To empower the State Governments to make rules for effectively administration of the legislation.

5. The Bill seeks to achieve the above objects.

1. Short title, extent and commencement.—(1) This Act may be called the prohibition of child marriage act, 2006.

(2) It extends to the whole of India except the State of Jammu and Kashmir; and it applies also to all citizens of India without and beyond India:

Provided that nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates¹ may be appointed for different States and any reference in any provision to the commencement of this Act shall be construed in relation to any State as a reference to the coming into force of that provision in that State.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(c) “contracting party”, in relation to a marriage, means either of the parties whose marriage is or is about to be thereby solemnised;

(d) “Child Marriage Prohibition Officer” includes the Child Marriage Prohibition Officer appointed under sub-section (1) of section 16;

(e) “district Court” means, in any area for which a Family Court established under section 3 of the Family Courts Act, 1984 (66 of 1984) exists, such Family Court, and in any area for which there is no Family Court but a City Civil Court exists, that Court and in any other area, the principal Civil Court of original jurisdiction and includes and other Civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;

(/) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.

3. Child marriages to be voidable at the option of contracting party being a child.—(1) Every child marriage, whether solemnised before or after the

1. Brought into force on 1-11-2007 vide S.O. 1850(E), dated 30-10-2007; in the State of Himachal Pradesh (w.e.f. 1-11-2007) vide S.O. 1786(E), dated 20-10-2007.                                                 

commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage:

Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district Court only by a contracting party to the marriage who was a child at the time of the marriage.

(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend alongwith the Child Marriage Prohibition Officer.

(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority.

(4) While granting a decree of nullity under this section, the district Court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money:

Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district Court and show cause why such order should not be passed.

4. Provision for maintenance and residence to female contracting party to child marriage.—(1) While granting a decree under section 3, the district Court may also make an interim or final order directing the male contracting party to the child marriage, and in case the male contracting party to such marriage is a minor, his parent or guardian to pay maintenance to the female contracting party to the marriage until her remarriage.

(2) The quantum of maintenance payable shall be determined by the district Court having regard to the needs of the child, the lifestyle enjoyed by such child during her marriage and the means of income of the paying party.

(3) The amount of maintenance may be directed to be paid monthly or in
lumpsum.

(4) In case the party making the petition under section 3 is the female contracting party, the district Court may also make a suitable order as to her residence until her remarriage.                                                                           

While granting a decree of nullity under section 3 of the Act, Court may also order to male contracting party or his guardian to pay maintenance and make provision for residence for female contracting party till her remarriage. (Notes on Clauses).

5. Custody and maintenance of children of child marriages.—(1) Where there are children born of the child marriage, the district Court shall make an appropriate order for the custody of such children.

(2) While making an order for the custody of a child under this section, the welfare and best interests of the child shall be the paramount consideration to be given by the district Court.                                                    

(3) An trader for custody of a child may also include appropriate directions for giving to the other party access to the child in such a manner as may best serve the interests of the child, and such other orders as the district Court may, in the interest of the child, deem proper.

(4) The district Court may also make an appropriate order for providing maintenance to the child by a party to the marriage or their parents or guardians.                                                                                              

6. Legitimacy of children born of child marriages.—Notwithstanding that a child marriage has been annulled by a decree of nullity under section 3, every child begotten or conceived of such marriage before the decree is made, whether born before or after the commencement of this Act, shall be deemed to be a legitimate child for all purposes.

A child begotten or conceived of child marriage shall be deemed to be a legitimate child inspite of such marriage being annulled by a decree of nullity under section 3 of the Act. (Notes on Clauses).

7. Power of district Court to modify orders issued under section 4 or section 5.—The district Court shall have the power to add to, modify or revoke any order made under section 4 or section 5 and if there is any change in the circumstances at any time during the pendency of the petition and even after the final disposal of the petition.

8. Court to which petition should be made.—For the purpose of grant of reliefs under sections 3, 4 and 5, the district Court having jurisdiction shall include the district Court having jurisdiction over the place where the defendant or the child resides, or where the marriage was solemnised or where the parties last resided together or the petitioner is residing on the date of presentation of the petition.

9. Punishment for male adult marrying a child.—Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.

Marrying a child by a male adult above eighteen years of age is punishable with imprisonment or fine or both. (Notes on Clauses).

10. Punishment for solemnising a child marriage.—Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

11. Punishment for promoting or permitting solemnisation of child marriages.—(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organization or association of persons who does any act to promote the

(b) where the person aggrieved by an offence is the wife, complaint may be made on her behalf by her father, mother, brother, sister, or by her father’s or mother’s, brother or sister, and

(3) every offence under section 4-A shall be cognizable:

Provided that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under this Act or make any arrest therefor.”—Punjab Act 26 of 1976, S. 5 (w.e.f. 20-5-1976).

[West Bengal].—In its application to the State of West Bengal, in S. 7,—

(a) for the words and figures “Code of Criminal Procedure, 1898″, substitute “Code of Criminal Procedure, 1973″;

(b) for the words “Presidency Magistrate or a Magistrate of the first class”, wherever they occur, substitute “Metropolitan Magistrate or a Judicial Magistrate of the first class”; and

(c) in Cl. (b), for the words “one year from the date of the offence”, substitute “three years from the date of the offence”.—W.B. Act 35 of 1975, S. 5 (w.e.f. 23-9-1975).

²²[8. Offences to be cognizable for certain purposes and to be ^[non-bailable] and non-compoundable.—(1) The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to offences under this Act as if they were cognizable offences—

(a) for the purposes of investigation of such offences; and           

(b) for the purposes of matters other than—

(c) matters referred to in section 42 of that Code; and (it) the arrest of a person without a warrant or without an order of a Magistrate.

(d) Every offence under this Act shall be ²³[non-bailable] and non-compoundable.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 8, substitute the following section, namely:—

“8. Offences to be cognizable, non-bailable and non-compoundable.—Every offence under this Act shall be cognizable, non-bailable and non-compoundable.”—Bihar Act 4 of 1976, S. 5 (w.e.f. 20-1-1976).

[Himachal Pradesh].—In its application to the State of Himachal Pradesh, for S. 8, substitute the following section, namely:—

“8. Offences to be cognizable, non-bailable and non-compoundable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable, non-bailable and non-compoundable”.—H.P. Act 25 of 1976, S. 6 (w.e.f. 24-6-1976).

[Orissa].—In its application to the State of Orissa, in S. 8, for “every offence”, substitute “save as otherwise provided, every offence”.—Orissa Act 1 of 1976, S. 3 (w.e.f. 18-1-1976).

[Punjab].—In its application to the State of Punjab, for S. 8, substitute the following section, namely:—

“8. Offences to be bailable and non-compoundable.—Every offence under this Act shall be bailable and non-compoundable.”—Punjab Act 26 of 1976, S. 7 (w.e.f. 20-5-1976).

²⁴[8-A. Burden of proof in certain cases.—Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under these sections shall be on him.]

State Amendments—[Himachal Pradesh].—In its application to the State of Himachal Pradesh, for S. 8-A, substitute the following section, namely:—

22. Substituted by Act 63 of 1984, S. 7, for S. 8 (w.e.f. 2-10-1985).

23. Substituted by Act 43 of 1986, S. 7, for “bailable” (w.e.f. 19-11-1986).

24. Inserted by Act 43 of 1986, S. 8 (w.e.f. 19-11-1986).                                                 

“8-A. Cognizance of offences—No Court shall take cognizance of any offence under this Act except on a police report under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint made by a person aggrieved by the offence, as the case may be, within one year from the date of the commission of the offence:

Provided that no police officer of the rank lower than that of the Deputy Superintendent of Police shall investigate any case registered under this Act:

Provided further that no Court shall take cognizance of any offence under this Act except with the previous sanction of the District Magistrate, having jurisdiction in the area.”—H.P. Act39 of 1978,S. 6 (w.e.f. 4-12-1978).

[Punjab].—In its application to the State of Punjab, after S. 8, insert the following section, namely:—

“8-A. Institution of proceedings.—No prosecution shall be instituted against any person in respect of any offence committed under this Act without the previous sanction of the District Magistrate of such officer as the State Government may by special or general order appoint in this behalf .”—Punjab Act 26 of 1976, S. 7 (w.e.f. 20-5-1976).

²⁵[8-B. Dowry Prohibition Officers.—(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely:—

(a) to see that the provisions of this Act are complied with; (V) to prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry;

(c) to collect such evidence as may be necessary for the prosecution of persons committing offences under this Act; and

(d) to perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rules made under this Act.

(3) The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitations and conditions as maybe specified by rules made under this Act.

(4) The State Government may, for the purpose of advising and assisting Dowry Prohibition Officers in the efficient performance of their functions under this Act, appoint an Advisory Board consisting of not more than five social welfare workers (out of whom at least two shall be women) from the area in respect of which such Dowry Prohibition Officer exercises jurisdiction under sub-section (1).]

9. Power to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

²⁶[(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for—

(a) the form and manner in which, and the persons by whom, any list of presents referred to in sub-section (2) of section 3 shall be maintained and all other matters connected therewith; and

(b) the better co-ordination of policy and action with respect to the administration of this Act.]

25. Inserted by Act 43 of 1986, S. 8 (w.e.f. 19-11-1986).                                                                                    

26. Inserted by Act 63 of 1984, S. 8 (w.e.f. 2-10-1985).                                                                                      

²⁷[(3)] Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or ²⁸[in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

State Amendments—[Himachal Pradesh].—In its application to the State of Himachal Pradesh, in S. 9 —

(a) after the words ” Central Government”, insert “or the State Government with the prior approval of the Central Government”;

(b) in sub-S. (2), after the words “every rule made” and before the words “under this section”, insert “by the Central Government”;

(c) after sub-S. (2), add the following sub-section, namely:—

“(3) Every rule made by the State Government under this section shall be laid, as soon as may be, after it is made, before the State Legislature while it is in session for a total period of not less than seven days, which may be comprised in one session or in two successive sessions and if before the expiry of the session in which it is so laid or the sessions immediately following, the Legislature requires any modification in the rule or desires that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule”.— H.P. Act 25 of 1976, S. 7 (w.e.f. 24-6-1976).

[Punjab].—In its application to the State of Punjab, in S. 9,—

(1) in sub-S. (1), after the words “Central Government”, insert “or the State Government”;

(it) in sub-S. (2), after the words “every rule made”, insert “by the Central Government”; and

(Hi) after sub-S. (2), add the following sub-section, namely:—

“(3) Every rule made under this section by the State Government shall be laid, as soon as may be, after it is made, before the House of the State Legislature while it is in session for a total period of ten days which may be comprised in one session or in two or more successive sessions, and, if before the expiry of the session in which it is so laid or the successive sessions aforesaid, the House agrees in making any modification in the rule or the House agrees that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”—Punjab Act 26 of 1976, S. 8 (w.e.f. 20-5-1976).

²⁹[10. Power of State Government to make rules.—(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for allor any of the following matters, namely:—

(«) the additional functions to be performed by the Dowry Prohibition Officers under sub-section (2) of section 8-B;

(b) limitations and conditions subject to which a Dowry Prohibition Officer may exercise his functions under sub-section (3) of section 8-B.

(3) Every rule made by the State Government under this section shall be laid as soon as may be after it is made before the State Legislature.]

27. Sub-S. (2) renumbered as sub-S. (3) thereof by Act 63 of 1984, S. 8 (w.e.f. 2-10-1985).

28. Substituted by Act 20 of 1983, S. 2 and Sch., for certain words (w.e.f. 15-3-1984).

29. Substituted by Act 43 of 1986, S. 9, for S. 10 (w.e.f. 19-11-1986).

 (iii) gives in the form of sagun at the time of thaka, betrothal or marriage, anything the value of which exceeds eleven rupees; or

(iv) gives to the parents or any other relation of a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage; or

(v) serves to the marriage party more than two principal meals; shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both.

Explanation.—In this section the expression “principal meal” means lunch or dinner.”— Punjab Act 26 of 1976, S. 4 (w.e.f. 20-5-1976).

[West Bengal].—In its application to the State of West Bengal, after S. 4, insert the following section, namely:—

“4-A. Penalty for depriving any party of the rights and privileges of marriage.—(1) If after the marriage, any party to the marriage with or without assistance of his parents or guardians deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which shall not be less than three months, but may extend to one year or with fine which shall not be less than two thousand rupees, but may extend to five thousand rupees, or with both.

(2) The provisions of this section shall be in addition to, and not in derogation of, any provisions on the subject contained in any other law for the time being in force.”—W.B. Act 35 of 1975, S. 5 (w.e.f. 23-9-1975).

Section 4-B

State Amendments—(Himachal Pradeshl—In its application to the State of Himachal Pradesh, after S. 4-A, insert the following section, namely:—

“4-B. Penalty for depriving any party of the rights and privileges of marriage.—(1) If after the marriage, any party to the marriage with or without assistance of any other person, deprives the other party of the rights and privileges of marriage or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.

(2) The provisions of this section shall be in addition to and not in derogation of, any provision on the subject contained in any other law for the time being in force.”— H.P. Act 25 of! 976, S. 4 (w.e.f. 24-6-1976).

[Punjab].—In its application to the State of Punjab, after S. 4-A, insert the following section, namely:—

“4-B. Penalty for depriving any party of rights and privileges of marriage.—Any party to the marriage who, after the marriage, deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party, for non-payment of dowry, and any person who assists such party in the commission of such offence, shall be punishable with imprisonment for a term which may extend to one year, and fine which may extend to five thousand rupees.”—Punjab Act 26 of 1976, S. 4 (w.e.f. 20-5-1976).

5. Agreement for giving or taking dowry to be void.—Any agreement for the giving or taking of dowry shall be void.

6. Dowry to be for the benefit of the wife or her heirs.—(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman—

(a) if the dowry was received before marriage/ within ¹³[three months] after the date of marriage; or

(b) If the dowry was received at the time of or after the marriage, within ¹³[three months] after the date of its receipt; or

(c) it the dowry was received when the woman was a minor, within .”[three months] after she has attained the age of eighteen years, arid pending such transfer, shall hold it in trust for the benefit of the woman.

13. Substituted by Act 63 of 1984, S. 5, for “one year” (w.e.f. 2-10-1985).

¹⁴[(2) If any person fails to transfer any property as required by sub­section (1) within the time limit specified therefor_/ ¹⁵[or as required by sub­section (3)], he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine ¹⁶[which shall not be less than five thousand rupees, but which may extend to ten thousand rupees] or with both.]

(3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:

¹⁵[Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,—

(a) if she has no children, be transferred to her parents, or

(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.]

¹⁷[(3-A) Where a person convicted under sub-section-(2) for failure to transfer any property as required by sub-section (1) ¹⁸[or sub-section (3)] has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, ¹⁹[her heirs, parents or children], the Court shall, in addition to awarding punishment under that sub­section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, ¹⁹[her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be, ¹⁹[her heirs, parents or children].

(4) Nothing contained in this section shall affect the provisions of section 3 or section 4.

State Amendments—[Haryana].—In its application to the State of Haryana, in sub-S. (2) of S. 6, for “or with fine which may extend to five thousand rupees, or with both”, substitute “and with fine which may extend to five thousand rupees”.—Haryana Act 38 of 1976, S. 3 (w.e.f. 11-8-1976).

Sections 6-A and 6-B

State Amendments—[Orissa].—In its application to the State of Orissa, after S. 6, insert the following sections, namely:—

“6-A. Penalty for denial of conjugal right by the husband.—(1) If any person denies conjugal rights to his wife on the ground that dowry has not been given or on the ground that the dowry given is insufficient, he shall be punishable with imprisonment which may extend to one year, or with fine which may extend to ten thousand rupees or with both.

(2) The Court trying an offence under this section may, at any stage of the proceedings, on the execution of a bond by the husband undertaking not to realise the dowry or any portion thereof as the case may be, and to allow conjugal rights to the wife, drop the proceedings.

(3) Any proceedings dropped under sub-section (2) shall revive if the Court is satisfied, or an application made in that behalf by the wife that the husband has failed to

14. Substituted by Act 63 of 1984, S. 5, for sub-S. (2) (w.e.f. 2-10-1985).                                                                         

15. Inserted by Act 43 of 1986, S. 5 (w.e.f. 19-11-1986).

16. Substituted by Act 43 of 1986, S. 5, for “which may extend to ten thousand rupees”
(w.e.f. 19-11-1986).                                                                                                                        

17. Inserted by Act 63 of 1984, S. 5 (w.e.f. 2-10-1985).                                                                                          

18. Inserted by Act 43 of 1986,8.5 (w.e.f. 19-11-1986).                                                                                              

19. Substituted by Act 63 of 1984, S. 5, for “her heirs” (w.e.f. 19-11-1986).

carry out the undertaking or has otherwise acted contrary to the terms of the bond, and thereupon the Court shall proceed with the case from the stage at which it was dropped:

Provided that no application under this sub-section shall be entertained if it is made after the expiry of three years from the date on which the proceedings were dropped.

(4) The Court may direct that the fine, if any, imposed under this section or such portion thereof as the Court deems proper, shall be paid to the wife as compensation.

6-E. Maintenance to be paid by husband on his conviction.—(1) On conviction of a person for an offence under section 6-A, the Court trying the offence may, on a claim made by his wife in that behalf within two months from the date of the order of conviction, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees, as the Court deems proper:

Provided that no such order shall be made without giving the parties concerned a reasonable opportunity of being heard.

(2) In determining the monthly allowance under this section regard shall be had to—

(a) the position and status of the parties;       (b) the reasonable wants of the wife;

(c) the value of the wife’s property and any income derived from such property, or from the wife’s earnings or from any other source; and

(d) the amount of compensation awarded under section 6-A.

(3) The maintenance allowance so ordered shall be a charge on the property, if any, of the husband, whether acquired before or after the date of the order.

(4) Where a complaint has been filed by the wife for an offence under section 6-A, the husband shall not transfer any of his assets till—

(a) where no claim for maintenance has been preferred under this section, the date of expiry of the period of limitation specified in sub-section (1) for filing such claim; and

(b) where such claim is preferred, the disposal of the claim.

(5) Notwithstanding anything contained in any other law, the wife may enforce any claim for maintenance against any property transferred by the husband in contravention of the provisions of sub-section (4) as if such transfer were null and void.

(6) The provisions contained in sub-section (3) of section 125 of the Code of Criminal Procedure, 1973 shall, so far as may be, apply to the recovery of the maintenance allowance ordered under this section.”—Orissa Act 1 of 1976, S. 2 (w.e.f. 18-1-1976).

²⁰[7. Cognizance of offences.—(1) Notwithstanding anything contained in the Code of Criminal Procedure., 1973 (2 of1974),—

(«) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of an offence under this Act except upon—

(f) its own knowledge or a police report of the facts which constitute such offence, or

(if) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;

(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.

Explanation.—For the purposes of this sub-section, "recognized welfare institution or organisation" means a social welfare institution or organisation recognized in this behalf by the central or State Government.

20. Substituted by Act 63 of 1984, S. 6, for S. 7 (w.e.f. 2-10-1985).

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.]

²¹[(3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 7, substitute the following section, namely:—

“7. Trial of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.”—Bihar Act 4 of 1976,S.4(w.e.f.20-l-1976).

[Haryana].—In its application to the State of Haryana, for S. 7, substitute the following section, namely:—

“7. Cognizance of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) no Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of any such offence except on a complaint made by any party to the marriage or her father, mother or brother or a Gazetted Officer specially authorised by the State Government in this behalf, within a period of one year from the date of the marriage;

(c) no Court shall take cognizance of any such offence except with the previous sanction of the District Magistrate or of such officer as the State Government may, by general or special order, specify in this behalf;

(d) no enquiry shall be got made through any Police Officer below the rank of a Deputy Superintendent of Police;

(e) no woman shall be called to a Police Station for the purpose of an enquiry regarding any offence under this Act.”—Haryana Act 38 of 1976, S. 4 (w.e.f. 11 -8-1976).

[Himachal PradeshJ.—In its application to the State of Himachal Pradesh, for S. 7, substitute the following section, namely:—

"7. Trial of offences.—[*] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act.

[*] No Court shall take cognizance of any offence under this Act, except that of offence under section 4-B, except on a police report or complaint made within one year of the marriage.”—H.P. Act 25 of 1976, S. 5 (w.e.f. 24-6-1976) as amended by H.P. Act 39 of 1978, S. 5, (w.e.f. 4-12-1978).

[Punjab],—In its application to the State of Punjab, for S. 7, substitute the following section, namely:—

“7. Cognizance of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(1) No Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act;

(2) No Court shall take cognizance of any offence punishable under sections 3, 4 and 4-B, except upon a complaint made within one year from the date of the offence, by some person aggrieved by the of fence:                                                                                                     
Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public some other person may, with the leave of the Court, make a complaint on his or her behalf;

21. Inserted by Act 43 of 1986, S. 6 (w.e.f. 19-11-1986).

connection with the marriage of the parties: Public Prosecutor, A.P. High Court v. Nese filakara Sreeramulu 2004 Cr.L.J. 1629 (Andh. Pra.) (F.B.).

Definition of dowry in £t-2 of the Dowry Prohibition Act (as amended by Act 43 of 1986) includes not only the period before and at the marriage but also the period subsequent to the marriage. Therefore, the argument that there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring in S. 2 of the Dowry Prohibition Act, and in the absence of any such evidence it would not constitute a dowry is not tenable: State ofAndhra Pradesh v. Raj GopalAsawa A.I.R. 2004 S.C. 1933: (2004) 4 S.C.C 470:2004 Cr.L.J. 1791. See also Pawan Kumarv. State of Haryana (1998) 3 S.C.C. 309.

“Dowry” definition is to be interpreted with the other provisions of the Act including S. 3, which refers to giving or taking dowry and S. 4 which deals with a penalty for demanding dowry, under the Dowry Prohibition Act and Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry: State of Andhra Pradesh v. Raj GopalAsawa A.I.R. 2004 S.C. 1933: (2004) 4 S.C.C. 470:2004 Cr.L.J. 1791.

What is the periphery of the word “dowry” came to be considered by the Supreme Court in the decision in Pawan Kumar v. State ofHaryana (1998) 3 S.C.C. 309 and in the teeth of the extended definition and meaning of the term as brought about by the Dowry Prohibition (Amendment) Act, 1986 (Central Act 43 of 1986) w.e.f. 19-11-1986 the earlier meaning confining and limiting the same to the time at or before the marriage got enlarged and extended even to the period after the marriage and that there be no need to also show any agreement for the payment of such dowry to make it punishable as an offence: Vidhya Devi v. State ofHaryana A. I. R 2004 S.C. 1757: (2004) 9 S.C.C. 476.

3. Petwaty for giving or taking dowry.—⁶[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable ⁷[with imprisonment for a term which shall not be less than ⁸[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than ⁹[five years.]

^w[(2) Nothing in sub-section (1) shall apply to, or in relation to,—

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

(b) presents which are given at the time of a  marriage to the bridegroom (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 3, substitute the following section, namely:—

“3. Penalty for giving or taking dowry.-—If any person after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees.”—Bihar Act 4 of 1976, S. 2 (w.e.f. 20-1-1976).

[Haryanal.—In its application to the State of Haryana, for S. 3, substitute the following section, namely:—

"3. Bar of certain acts.—No person shall—

(a) give or take or abet the giving or taking of dowry;

(b) demand, directly or indirectly from the parents or guardians of a bride or bridegroom, as the case may be, any dowry;

(c) incur marriage expenses the aggregate value whereof exceeds five thousand rupees;

(d) display any gifts made at or before the marriage in the form of cash ornaments, clothes or other articles;

(e) take or carry in excess of—                                                                           

(i) twenty-five members of the marriage party; and

(if) eleven members of the band;

(/) deny conjugal rights to his wife on the ground that dowry has not been given or the dowry given is insufficient."—Haryana Act 38 of 1976, S. 2 (w.e.f. 11-8-1976).

6. S. 3 renumbered as sub-S. (1) thereof by Act 63 of 1984, S. 3 (w.e.f. 2-10-1985).

7. Substituted by Act 63 of 1984, S. 3, for "with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both" (w.e.f. 2-10-1985).

8. Substituted by Act 43 of 1986, S. 3, for "six months, but which may extend to two years, and with fine which may extend to ten thousand rupees or the amount of the value of such dowry, whichever is more" (w.e.f. 19-11-1986).

9. Substituted by Act 43 of 1986, S. 3, for "six months" (w.e.f. 19-11-1986).

10. Inserted by Act 63 of 1984, S.3 (w.e.f. 2-10-1985).       .                                                                          

[Himachal Pradesh].—In its application to the State of Himachal Pradesh, for S. 3, substitute the following section, namely:—

“3. Penalty for giving or taking dowry.—If any person gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.”—H.P. Act 25 of 1976, S. 2 (w.e.f. 24-6-1976).

(Punjab].—In its application to the State of Punjab, in S. 3, for the words “six months or with fine which may extend to five thousand rupees”, substitute “one year, and fine which may extend to five thousand rupees”.—Punjab Act 26 of 1976, S. 2 (w.e.f.20-5-1976).

[West Bengal].—In its application to the State of West Bengal, in S. 3, for the words “which may extend to six months, or with fine which may extend to five thousand rupees”, substitute “which shall not be less than three months, but may extend to three years or with fine which shall not be less than two thousand rupees, but may extend to ten thousand rupees”.—W.B. Act 35 of 1975, S. 2 (w.e.f. 23-9-1975).

COMMENTS

This deep-rooted social evil requires to be controlled not only by effective implementation of the Dowry Prohibition Act, 1961, but also by the Society. The Society has to find out ways and means of controlling and combating this menace of receipt and payment of dowry. It appears that instead of controlling payment and receipt of dowry in one or other form, it is increasing even in educated class. May be that, it is increasing because of accumulation of unaccounted wealth with few and others having less means follow the same out of compulsion: Vikas v. State ofRajasthan 2002 Cr.L.J. 3760 (S.C.).

Ss. 3 and 4 of the Dowry Prohibition Act make out independent offences, but in the instant case it was the demand for dowry coupled with harassment which constitutes the basis of the prosecution case. Once the main part of the charge under S. 304-B was not found established, it was not possible to record conviction under Ss. 3 and 4 of the Dowry Prohibition Act: SakhiMandalaniv. State ofBihar (1999) 5 S.C.C. 705:1999 S.C.C. (Cr.) 1039.

ⁿ[4. Penalty for demanding dowry.—If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 4, substitute the following section, namely:—

“4. Penalty for demanding dowry.—If any person, after the commencement of this Act, demands directly or indirectly from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees:

Provided that no Court shall take cognizance of any offence under this section except with the previous sanction of the State Government or of such officer as the State Government, may, by general or special order/specify in this behalf.”—Bihar Act 4 of 1976, S. 3 (w.e.f. 20-1-1976).

IHaryana].—In its application to the State of Haryana, for S. 4, substitute the following section, namely:—

“4. Penalty.—(1) If any person contravenes any of the provisions of section 3, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees.

(2) The Court trying an offence under clause (/) of section 3 relating to conjugal rights may at any stage of the proceedings, on the execution of a bond by the husband undertaking not to demand dowry and to allow conjugal rights to the wife, drop the proceedings.

11. Substituted by Act 63 of 1984, S. 4, for S. 4 (w.e.f. 2-10-1985).

 (3) Any proceedings dropped under sub-section (2) shall revive if the Court is satisfied, on an application made by the wife in this behalf, that the husband has failed to carry out the undertaking or has otherwise acted contrary to the terms of the bond, and thereupon the Court shall proceed with the case from the stage at which it was dropped:

Provided that no application under this sub-section shall be entertained if it is made after the expiry of a period of three years from the date on which the proceedings were dropped.

(4) The Court may direct that the fine, if any, imposed for the contravention of clause (/) of section 3, or such portion thereof, as the Court may deem proper, shall be paid to the wife.”—Haryana Act 38 of 1976, S. 2(w.e.f. 11-8-1976).

[Himachal Pradeshl.—In its application to the State of Himachal Pradesh, for S. 4, substitute the following section, namely:—

"4. Penalty for demanding dowry.—If any person demands, directly or indirectly, from the parents or guardian of a bride or bridegroom or from any other person, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees."—H.P. Act 25 of 1976, S. 3 (w.e.f. 24-6-1976).

¹²[4-A. Ban on advertisement.—If any person,—

(a) offers, through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relative;

(fc) prints or publishes or circulates any advertisement referred to clause (a),

he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months.]

State-Amendments—[Himachal Pradesh].—In its application to the State of Himachal Pradesh, after S. 4, insert the following section, namely:—

“4-A. Bar of certain acts.—Any person who—

(i) displays any presents made at the time of marriage in the form of cash, ornaments, clothes or other articles; or

(if) gives in the form of “shagun” at the time of “thaka”, betrothal or “tikka” anything the value of which exceeds eleven rupees; or

(in) gives to the parents or any other relation of a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees, or with both.”—H.P. Act 25 of 1976, S. 4 (w.e.f. 24-6-1976).

1 Punjab).—In its application to the State of Punjab, after S. 4, insert the following section, namely:—

“4-A. Bar of certain acts.—Any person who——

(i) displays any presents made at the time of such marriage in the form of cash, ornaments, clothes or other articles; or

(ii) takes in a marriage party more than twenty-five persons exclusive of minors and the members of the band; or

12. Inserted by Act 43 of 1986, S. 4 (w.e.f. 19-11-1986).

THE DOWRY PROHIBITION ACT, 1961¹ (28 OF 1961)

[20th May, 1961] An Act to prohibit the giving or taking of dowry.

be it enacted by Parliament in the Twelfth Year of the Republic of India as follows:—

Statement of Objects and Reasons.—The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if given does enure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2,000. Such a provision appears to be necessary to make the law workable.

Amendment Act 63 of 1984—Statement of Objects and Reasons.—The evil of dowry system has been a matter of serious concern to every one in view of its ever-increasing and disturbing proportions. The legislation on the subject enacted by Parliament, i.e., the Dowry Prohibition Act, 1961 and the far-reaching amendments which have been made to the Act by a number of States during the seventies have not succeeded in containing the evil. As pointed out by the Committee on the Status of Women in India, the educated youth is grossly insensitive to the evil of dowry and unashamedly contributes to its perpetuation. Government has been making various efforts to deal with the problem. In addition to issuing instructions to the State Governments and Union territory administrations with regard to the making of thorough and compulsory investigations into cases of dowry deaths and stepping up anti-dowry publicity. Government referred the whole matter for consideration by a Joint Committee of both the Houses of Parliament. The Committee went into the whole matter in great depth and its proceedings have helped in no small measure in focussing the attention of the public and rousing the consciousness of the public against this evil.

2. The following observations made by late Pandit Jawaharlal Nehru which have been quoted by the Committee indicate trie role which legislation can play in dealing with the evil:—

“Legislation cannot by itself normally solve deep-rooted social problems. One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape.”

The recommendations made by the Joint Committee of the Houses to examine the question of working of the Dowry Prohibition Act, 1961 have been considered keeping in view these observations and after taking into consideration the comments received on the Report from the State Governments, Union territory administrations and the different administrative Ministries of the Union concerned with the matter. One of the important recommendations of the Committee for dealing with cruelty to a married woman by the husband or the relatives of the husband on the ground of non-receipt of dowry or insufficient dowry has already been given effect to by the Criminal Law (Second Amendment) Act, 1983. This Act amended, inter alia, the Indian Penal Code to include

1. The Act has been extended to (I) Dadra and Nagar Haveli by Regulation 6 of 1963 and (2) Pondicherry by Act 26 of 1968.

therein a provision for punishment for cruelty to married women and was aimed at dealing directly with the problem of dowry suicides and dowry deaths.

3. The Joint Committee has recommended that the definition of “dowry” contained in section 2 of the 1961 Act should be modified by omitting the expression “as consideration for the marriage” used therein on the ground that it is well nigh impossible to prove that anything given were a consideration for the marriage for the obvious and simple reason that the giver i.e., the parents who are usually the victims would be reluctant and unwilling to set the law in motion. The omission of the words “as consideration for the marriage” would make the definition not only wide but also unworkable, for, if these words are omitted, anything given, whether before or after or at the time of marriage by any one, may amount to dowry. The Supreme Court has also placed a liberal construction on the word “dowry” as used in section 4 of the Dowry Prohibition Act, 1961, relating to demanding dowry. In the circumstances, it is proposed to substitute the words “in connection with the marriage” for the words “as consideration for the marriage” instead of omitting those words.

4. Section 3 of the Dowry Prohibition Act relating to the offences of giving or taking of dowry is being amended in accordance with the recommendations of the joint Committee to make the punishment for the offence more stringent. All presents given at the time of marriage to the bride and certain types of presents given at the time of marriage to the bridegroom are proposed to be excluded from the purview of the offences under the section. However, the recommendations of the Committee for exempting the giver of dowry from punishment is not being given effect to as such exemption may only prove to be counter­productive.

5. Section 4 of the Dowry Prohibition Act relating to penalty for demanding dowry is proposed to be amended to make the punishment thereunder more stringent on the lines recommended by the Joint Committee.

6. Section 6 of the Act is being amended in accordance with the recommendation of the Joint Committee, to reduce the time limit within which dowry received in connection with the marriage of a woman by any other person should be restored to the woman from one year to three months. Likewise, the punishment for failure to restore such dowry within the said time limit is being made more stringent on the lines recommended by the Committee. Under a special provision which is being included in section 6 where a person is convicted for failure to restore the dowry to the woman concerned within the period specified in the section, the Court may, in addition to awarding punishment, issue a direction requiring him to restore the property to the woman within the period specified in the direction. In case of non-compliance with the” direction, the value of the property would be recoverable from such person as if it were a fine and the amount so recovered may be paid to the woman concerned or, as the case may be her heirs.

7. Sections 7 and 8 of the Dowry Prohibition Act are proposed to be amended to give effect to the recommendations of the Committee as to cognizance of offences under the Act and making offences under the Act cognizable.

Amendment Act 43 of 1986—Statement of Objects and Reasons.—The Dowry Prohibition Act, 1961 was recently amended by the Dowry Prohibition (Amendment) Act, 1984 to give effect to certain recommendations of the Joint Committee of the Houses of Parliament to examine the question of the working of the Dowry Prohibition Act, 1961 and to make the provisions of the Act more stringent and effective. Although the Dowry Prohibition (Amendment) Act, 1984 was an improvement on the existing legislation, opinions have been expressed by representatives from women’s voluntary organisations and others to the effect that the amendments made are still inadequate and the Act needs to be further amend ed.

2. It is, therefore, proposed to further amend the Dowry Prohibition Act, 1961 to make provisions therein further stringent and effective. The salient features of the Bill are:—

(«) The minimum punishment for taking or abetting the taking of dowry under section 3 of the Act has been raised to five years and a fine of rupees fifteen thousand.

(b) The burden of proving that there was no demand for dowry will be on the person who takes or abets the taking of dowry.

                                                DOWRY PROHIBITION ACT, 1961                                      

, i he statement made by the person aggrieved by the offence shall not subject him to prosecution under the Act.

(d) Any advertisement in any newspaper, periodical journal or any other media by any person offering any share in his property or any money in consideration of the marriage of his son or daughter is proposed to be banned and the person giving such advertisement and the printer or publisher of such advertisement will be liable for punishment with imprisonment of six months to five years or with fine up to fifteen thousand rupees.

(e) Offences under the Act are proposed to be made non-bailable.

(/) Provision has also been made for the appointment of Dowry Prohibition Officers by the State Governments for the effective implementation of the Act. The Dowry Prohibition Officers will be assisted by the Advisory Boards consisting of not more than five social welfare workers (out of whom at least two shall be women).

(g) A new offence of “dowry death” is proposed to be included in the Indian Penal Code and the necessary consequential amendments in the Code of Criminal Procedure, 1973 and in the Indian Evidence Act, 1872 have also been proposed.

1. Short title, extent and commencement.—(1) This Act may be called the

dowry prohibition act, 1961.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date² as the Central Government may, by notification in the Official Gazette, appoint.

2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before ³[or any time after the marriage] ⁴[in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. sr***i

Explanation II.—The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

State Amendment—[Haryana].—In   its application to the State of Haryana, for S. 2, substitute the following section, namely:—

“2. Definitions.—In this Act, unless the context requires,—

(;’) “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,

at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case, of persons to whom the Muslim Personal Law (Shnriat) applies.

Explanation 1.—For the removal of doubts it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes

2. Brought into force on 1-7-1961.

3. Substituted by Act 43 of 1986, S. 2, for “or after the marriage” (w.e.f. 19-11-1986).

4. Substituted by Act 63 of 1984, S. 2, for “as consideration for the marriage of the said parties, but does not include” (w.e.f. 2-10-1985).

5. Explanation I omitted by Act 63 of 1984, S. 2 (w.e.f. 2-10-1985).

or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II.—The expression “valuable securities” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

(«’) “marriage expenses” shall include expenses incurred directly or indirectly at or before the marriage on—

(«) Thakka, Sagai, Tikka, Shagun and Milni ceremonies;

(b) the gifts made by one party to a marriage to the other party to the marriage or by the parents, grand-parents and brothers of either party to a marriage, to either party to the marriage or the blood relations thereof;

(c) illumination, food and the arrangements for serving food to the members of the marriage party and other expenses incidental thereto.

Explanation.—For the removal of doubts, it is hereby declared that any gifts made by a person other than those specified in sub-clause (b), at the time of marriage to either party to the marriage shall not be deemed to be marriage expenses”.—Haryana Act 38 of 1976, S. 2 (w.e.f. 11-8-1976).

                                          COMMENTS                                                                                                                                               

Demand of dowry after three years of happy life certainly is not relating to the marriage as it neither relates to the one nor agreed to be given at or before or after the marriage: Shanmughavelu v. State2004 Cr.L.J. 2731 (Mad.).

Any property or valuable security given or agreed to be given comes within the purview of “dowry” on three occasions in which any property or valuable security comes within its purview. They are: (i) before the marriage, (it) at the time of marriage, and (Hi) “at any time” after the marriage. The third occasion may appear to be an unending period, but the crucial words are “in connection with the marriage of the parties”. This means, giving or agreeing to give any property or valuable security on any of the above three stages should have been in

It is to be noted that the statutory claim for maintenance of mother, as envisaged under S. 125(l)(rf), Cr.P.Code, 1973, is not dependent on her having discharged parental obligations during the childhood of the petitioner: Mahendrakumar v. Gulabbai 2001 Cr.L.J. 2111 (Bom.).

Interim maintenance.—Even on affidavits, interim maintenance can be granted: Suresh v. Lalita 2002 Cr.L.J. 380 (Raj.).

Date of order.—The order of maintenance may be passed effective from the date of application or at the discretion of the Magistrate from the date of the order: Arun Kumar v. Kamalesh (1989) 1 D.M.C. 449 (P.&H); Dasyam Elizabath Rani v. Dasyam Pradeep Kumar 2001 Cr.L.J. 47 (Andh, Pra.). But no special reason is to be assigned for granting maintenance from the date of application: K. Sivaram v. K. Mangalamba 1990 Cr.L.J. 1880 (Andh. Pra.). But in Nitha Ranjan Chakraborty v. Kalpana Chakrabarty 2002 Cr.L.J. 4768 (Cal.), it was held that the Court must have put a few words by way of reason as to why it was not granting maintenance from the date of order. But his omission to assign any such reason should not be carried to the extent of being taken as a ground for rendering the order liable to be set aside, if otherwise it is in order.

Enforcement of the order.—Normally, when the husband has the property, the Magistrate has to follow the procedure under S. 421, Cr.P.Code. Unless that procedure is followed, the husband cannot be sent to jail for execution of maintenance order: Shakuntalabai v. Nandkishore 1994 Cr.L.J. (N.O.C.) 435 (Madh. Pra.). The Magistrate cannot impose sentence for more than one month for non-compliance with order of maintenance: Shahada Khatoon v. Amjad AH (1999) 5 S.C.C. 672: 1999 S.C.C. (Cr.) 1029. It is immaterial whether there were arrears of 12 months or of any other duration. The material question is whether a warrant under S. 125(3) been issued or not and in case of one warrant issued under S. 125(3) of the Cr.P.Code, there can only be one imprisonment and the maximum imprisonment would be one month: Abdul Gafaoor v. Hameema Khatoon 2004 Cr.L.J. 1280 (Andh. Pra.) (D.B.). Even when the Muslim wife has been divorced subsequent to the passing of the order of maintenance under S. 125, Cr.P.Code, the recovery proceedings would not lapse for failure to exercise option under S. 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986: Bashir Khan v. Jamila Bee 1994 Cr.L.J. 361 (Madh. Pra.).

In view of the provisions of the Himachal Pradesh Panchayati Raj Act, 1994, if after issuance of notice by the Gram Panchayat, the defaulter does not come forward to pay the amount of maintenance, it is difficult for the Gram Panchayat to execute the order of maintenance and the only course left for it is to forward the order of maintenance for execution to the Judicial Magistrate in whose jurisdiction it is situated. However, the Court directed that a copy of this judgment be also sent to the Chief Secretary to the Government of Himachal Pradesh, to consider the desirability of amending the H.P. Panchayati Raj Act, 1994, to make appropriate provisions for execution of order passed by the Gram Panchayat under S. 125, Cr.P.Code: Padmo v. Surat Ram 2003 Cr.L.J. 237 (Him. Pra.).

Limitation for enforcement of the order.—Under the first proviso to S. 125(3), Cr.P.Code, limitation is one year from the date of order of maintenance. This is because that is the date on which maintenance becomes due and not from the date from which the maintenance is ordered to be paid: A. Ram v. Pushpa 1978 Cr.L.J. (N.O.C.) 43 (Him. Pra.); Takkalaipally Laxmamma v. Takkalaipally Rangaiah 1992 Cr.L.J. 266 (Andh. Pra.). Arrears of maintenance cannot be allowed to accumulate beyond a period of one year: Srinivasa Rao v. Rajeswari 1990 Cr.LJ. 2506 (Andh. Pra.).

No warrant for recovery of any amount due under S. 125, Cr.P.Code can be issued under S. 421, Cr.P.Code unless the application is made within one year from the date of order. The time during which revision is pending against the order of the Magistrate cannot be excluded for computing the period of one year: Bimla Devi v. Karan 1986 Cr.L.J. 521 (Ori.). Some High Courts have held that the application for execution within one year of the disposal of the revision petition is within time: P. Ataullah v. Memunisa Begum 1984 Cr.L.J. 1522 (Andh. Pra.);Maniben v. Manibhai 1983Cr.L.J. 1935 (Guj.).

Revision.—Where there was a positive finding of fact that the husband had failed to maintain the wife and neglected her, and, therefore, the order of maintenance was passed,

held, the revisional Court had absolutely no jurisdiction to upset that finding: Munesh Kumari v. Sheo Raj Singh 2003 Cr.L.J. 215 (All.).

126. Procedure.—(1) Proceedings under section 125 may be taken against any person in any district—

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.

                              COMMENTS                   

Procedure in maintenance proceeding.—Procedure for moving and for hearing a maintenance petition is laid down in S. 126. So far as the forum for making an application is concerned, the wife has been given the choice to apply where she resides in view of S. 126(£>): Dipak Banerjee v. Sudipta Banerjee 1988 Cr.L.J. 1627 (Cal.). When the petition is heard on taking evidence the Magistrate shall make a memorandum of substance of evidence of each witness examined by the parties. The enquiry cannot be made on affidavits: Gurunath Rao v. Venu Bai 1969 Cr.L.J. 1169 (Mys.). Recording of evidence in presence of opposite party-husband is necessary. But when inspite of service of notice, the opposite parties did not appear, the Magistrate may record the evidence ex parte and pass order of maintenance ex parte: Ramesh v. Jayashreeben 1982 Cr.L.J. 1460 (Bom.). Although a formal order is desirable that the husband is avoiding service yet the fact of avoiding service may be discernible from the record if the said fact is challenged: Balan NAIR v. Bhawani Amma A.I.R. 1987 Ker. 110: 1987 Cr.L.J. 399 (F.B.).

Ex parte order, remedy.—The remedy is primarily provided in the proviso to S. 126(2). In appropriate case a revision may be filed against such ex parte order: Balan NAIR v. Bhawani Amma A.I.R. 1987 Ker. 110: 1987 Cr.L.J. 399 (F.B.); S. Bhupinder Singh v. Narinder Kaur 1990 Cr.L.J. 2265 (Del.). The limitation for filing an application for setting aside the exparte order of maintenance is three months from the date of the order and not from the date of knowledge of the order: Amal Guha v. State 1989 Cr.L.J. 488 (Cal.). So when it is proved that no notice was served upon the opposite party, the ex parte order being non-est, is liable to be set aside: Sukhirthammal v. Subramanium 1985 Cr.L.J. 1294 (Mad.)…

In appropriate cases the delay may be condoned under S. 5 of the Limitation Act: Balan NAIR v. BhavaniAmma A.I.R. 1987 Ker. 110:1987 Cr.L.J. 399 (F.B.).

Quantum ham to be assessed.—The quantum of maintenance must be commensurate with the standard of living of the parties: Saraswati v. Shivswami (1987) 2 D.M.C. 5 (Mad.). The income of the husband and separate income of the wife, if any, may be taken into account in assessing maintenance to be awarded to the wife: Bhagwan Dutt v. Kamla Devi A.I.R. 1975 S.C. 83: (1975) 2 S.C.C. 386:1975 Cr.L.J. 40.

Territorial jurisdiction of Magistrate—(a) Generally.—Even temporary residence, if not casual, is sufficient to confer jurisdiction on Magistrate at that place or of the District concerned: Darshan Kumari v. Surinder Kumar (1995) 4 (Supp.) S.C.C. 137: 19% S.C.C. (Cr.) 44.

(b) In case of parents.—The benefit given to the wife and the children to initiate proceedings at the place where they reside is not given to the parents. Unlike Cls. (b) and (c) of S. 126(1), an application by the father or the mother claiming maintenance, has to be filed where the person from whom maintenance is claimed lives: Vijay Kumar Prasadv. State of Bihar A.I.R. 2004 S.C. 2123:2004 Cr.L.J. 2047.

127. Alteration in allowances.—⁵[(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.]

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,—

(z) in the case where such sum was paid before such order, from the date on which such order was made;

(it) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to ⁶[maintenance or interim maintenance, as the case may be,] after her divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a ⁷[monthly allowance for the maintenance

5. Substituted by Act 50 of 2001, S. 3, for sub-S. (1) (w.e.f. 24-9-2001). Prior to its substitution, sub-S. (1) read as under:—"(1) On proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit:

Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded."

6. Substituted by Act 50 of 2001, S. 3, for "maintenance" (w.e.f. 24-9-2001).

7. Substituted by Act 50 of 2001, S. 3, for "monthly allowance has been ordered"(w.e.f. 24-9-2001).

and interim maintenance or any of them has been ordered] to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person ⁸[as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order.

State Amendments—[Maharashtral.—In its application to the State of Maharashtra, in section 127,—

(a) in sub-section (1), in the proviso, for the words "five hundred rupees", substitute "fifteen hundred rupees".

(b) in sub-section (4),—

(i) for the words "monthly allowance", where they occur for the first time, substitute "maintenance allowance";

(if) after the words "monthly allowance", where they occur for the second time, insert "or, as the case may be, the lump-sum allowance".—Maharashtra Act 21 of 1999, section 3 (w.e.f. 20-4-1999). [These State amendments were made prior to the enactment of the Code of Criminal Procedure, 2001 (Central Act 50 of 2001), section 3 (w.e.f. 24-9-2001)—Ed.]

[Rajasthan].—In its application to the State of Rajasthan, in section 127, sub-section (1), for the words ”five hundred” occurring after the words “the monthly rate of” and before the words “rupees in the whole”, substitute “two thousand five hundred”.—Rajasthan Act 3 of 2001, section 3.

[Tripura].—In its application to the State of Tripura, in section 127, sub-section (1), in the proviso, for the words “five hundred rupees”, substitute “one thousand rupees”.—Tripura Act 9 of 1999, sections (w.e.f. 94-1999). [This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words "not exceeding five hundred rupees) in the whole" have been omitted (See section 2, Cr.P.Code (Amdt.) Act, 2001 (w.e.f. 24-9-2001)—Ed.]

[Uttar Pradesh].—In its application to the State of Uttar Pradesh, in section 127, sub­section (1), in the proviso, for the words “five hundred rupees”, substitute “five thousand rupees”.—Uttar Pradesh Act 36 of 2000,section3 (w.e.f. 13-8-2001).

[West Bengal].—In its application to the State of West Bengal, in section 127, sub-section (1), in the proviso, for the words “five hundred rupees”, substitute “one thousand rupees”.—West Bengal Act 14 of 1995, section 2 (w.e.f. 2-8-1995). [This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words "not exceeding five hundred rupees in the whole" have been omitted (See section 2, Cr.P.Code (Amdt.) Act, 2001 (w.e.f. 24-9-2001)—Ed.]

COMMENTS

Alteration of maintenance.—When there is change in the circumstance under which the original order of maintenance was passed, the Magistrate is competent either to enhance or to reduce the same: juydeb Chakraborty v. Bharati Chakravarty 1994 Cr.L.J. 2234 (Cal). Change of circumstance contemplates not only changes in relation to wife but also in relation to husband. So when the husband begins to earn more the wife can invoke S. 127, Cr.P.Code to enhance the maintenance: Meenakshi v. Balakrishnan 1980 Cr.L.J. 1200 (Mad.). When the wife begins to earn, the husband may apply either to set aside or to reduce the amount of maintenance: Abdul Salim v. Najima Begum 1980 Cr.L.J. 232 (AIL). When the maintenance of the child was fixed at Rs. 50 in 1984, it can be enhanced to Rs. 150 in view of inflation and increase of age of the child: Bakulabai v. Gangaram (1988) 1 S.C.C. 541:1988 S.C.C. (Cr.) 189. When it is proved that the wife gave birth to a baby from the loins of a third person, the order of maintenance is liable to be cancelled: Babulal v. Munna Bai (1987) 1 D.M.C. 100 (Ori.)._____________________________________

8. Substituted by Act 50 of 2001, S. 3, for “as monthly allowance in pursuance of” (w.e.f. 24-9-2001).

When an order of maintenance under S. 125, Cr.P.Code has become final, provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 does not entitle the parties to reopen the same. So such order cannot be cancelled only because the above Act has come into force: Anowaruddin Ahmed v. State 1989 Cr.L.J. (N.O.C.) 20 (Cal.) (D.B.); M.A Hameed v. Arifjan 1990 Cr.L.J. 96 (Andh. Pra.). A Muslim divorced wife can apply for enhancement of maintenance on the ground of increased living cost, because the maintenance granted to Muslim divorced women cannot be restricted to the period of iddat only: Hamidan v. Mohd. Rafiq 1994 Cr.L.J. 348 (All).

Even in respect of the Hindus, order of maintenance in favour of a wife is not liable to be cancelled on the ground that the husband obtained subsequently a decree for divorce on the ground of desertion: Mangilalv. Gitabai 1988 Cr.L.J. 1591: (1988)1 Crimes 600 (Madh. Pra.).

“Magistrate”—Meaning of.—The words “the Magistrate” would mean the Magistrate who has passed the first order of maintenance. Therefore, the petition under S. 127, Cr.P.Code will have to be filed before the Magistrate who has passed the first order of maintenance: Raj Kumar v. Shanta Bai 2002 Cr.L.J. 2894 (Raj.); G. Balraj v. Mallamma in 1984 Cr.L.J. 1170 (Andh. Pra.).

Enhanced maintenance if from date of application or date of order.—Whether the enhanced maintenance is to be ordered from the date of application or the date of the order is within the discretion of the Magistrate: S.S.N. Niphade v. N.S. Niphade (1995) 4 (Supp.) S.C.C. 243:1996 S.C.C (Cr.) 53.

Fart of inflation to be taken judicial notice of.—Fact of inflation resulting in fall in purchasing power of money and consequent rising cost of commodities can be taken judicial notice of by the Court: Dhan Raj v. Kishni 1998 Cr.L.J. 1312 (Raj.).

Retirement of husband.—The subsequent retirement of the husband is not such a change of circumstance for the Court to reduce the quantum of maintenance: T. Kausalya v. T. Namyana Reddy 1998 Cr.L.J. 1795 (Andh. Pra.).

128. Enforcement of order of maintenance.—A copy of the order of ‘[maintenance or interim maintenance and expenses of proceeding_/ as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to ¹⁰[whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the “[allowance, or as the case may be, expenses, due].

9. Substituted by Act 50 of 2001, S. 4, for “maintenance” (w.e.f. 24-9-2001).

10. Substituted by Act 50 of 2001, S. 4, for “whom the allowance” (w.e.f. 24-9-2001).

11. Substituted by Act 50 of 2001, S. 4, for “allowance due” (w.e.f. 24-9-2001).

THE CODE OF CRIMINAL PROCEDURE, 1973

(2OF1974)

[25th January, 1974] (RELEVANT PROVISIONS)

                                     CHAPTER IX

ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

125. Order for maintenance of wives, children and parents.—(1) If any person having sufficient means neglects or refuses to maintain—

(fl) his wife, unable to maintain herself, or                                              ^:

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate ^] [* * *], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:

²[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub­section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]

Explanation.—For the purposes of this Chapter,—

(fl) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority;

(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

1. The words “not exceeding five hundred rupees in the whole” omitted by Act 50 of 2001, S. 2 (w.e.f. 24-9-2001).

2. Inserted by Act 50 of 2001, S. 2 (w.e.f. 24-9-2001).

³[(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s ⁴[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

(4) No wife shall be entitled to receive an ⁴[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

State Amendments—IMadhya Pradesh].—In its application to the State of Madhya Pradesh, in section!25, sub-section (1), for the words “five hundred rupees”, substitute “three thousand rupees”.—Madhya Pradesh Act 10 of 1998, section 3 (w.e.f. 29-5-1998). [This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words "not exceeding five hundred rupees in the whole" have been omitted (See section 2, Cr.P.Code (Amdt.) Act, 2001 (w.e.f. 24-9-2001)—Ed.]

[Maharashtraj.—In its application to theStateof Maharashtra,in section 125,— (a) in sub-section (1),—

(i) for the words "not exceeding five hundred rupees", substitute "not exceeding fifteen hundred rupees";

(if) before the existing proviso, insert the following proviso, namely:—

"Provided that, the Magistrate on an application or submission being made, supported by an affidavit by the person who has applied for the maintenance under this

3. Substituted by Act 50 of 2001, S. 2, for sub-S. (2) (w.e.f. 24-9-2001).

4. Substituted by Act 50 of 2001, S. 2, for "allowance" (w.e.f. 24-9-2001)                                                                                                                                                                                                                               

sub-section, for payment of interim maintenance, on being satisfied that, there is a prima fade ground for making such order, may direct the person against whom the application for maintenance has been made, to pay a reasonable amount by way of interim maintenance to the applicant, pending the final disposal of the maintenance application:

Provided further that, such order for payment of interim maintenance may, in an appropriate case, also be made by the Magistrate ex parte, pending service of notice of the application, subject, however, to the condition that such an order shall be liable to be modified or even cancelled after the respondent is heard in the matter:

Provided also that, subject to the ceiling laid down under this sub-section, the amount of interim maintenance shall, as far as practicable, be not less than thirty per cent of the monthly income of the respondent.";

(Hi) in the existing proviso, for the words "Provided that", substitute "Provided also that";

(b) after sub-section (2), insert the following sub-section, namely:—

"(2-A) Notwithstanding anything otherwise contained in sub-sections (1) and (2), where an application is made by the wife under clause (a) of sub-section (1) for the maintenance allowance, the applicant may also seek relief that the order may be made for the payment of maintenance allowance in lumpsum in lieu of the payment of monthly maintenance allowance, and the Magistrate may, after taking into consideration all the circumstances obtaining in the case including the factors like the age, physical condition, economic conditions and other liabilities and commitments of both the parties, pass an order that the respondent shall pay the maintenance allowance in lumpsum in lieu of the monthly maintenance allowance, covering a specified period, not exceeding five years at a time, or for such period which may exceed five years, as may be mutually agreed to, by the parties.";

(c) in sub-section (3),—                                                    .

(z) after the words "so ordered", insert "either under sub-section (1) or sub-section (2-A), as the case may be,";

(if) after the words "each month's allowance", insert "or, as the case may be, the lumpsum allowance to be paid in lieu of the monthly allowance".—Maharashtra Act 21 of 1999, section 2 (w.e.f. 20-4-1999). [These State amendments were made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001), section 2 (w.e.f, 24-9-2001)—Ed.]

[Rajasthan].—In its application to the State of Rajasthan, in section 125, sub-section (1), for the words “five hundred” occurring after the words “at such monthly rate not exceeding” and before the words “rupees in the whole”, substitute “two thousand five hundred”.— Rajas than Act 3 of 2001, section 2.

[Tripura].—In its application to the State of Tripura, in section 125, sub-section (1), for the words “five hundred rupees”, substitute “one thousand five hundred rupees”.— Tripura Act 9 of 1999, section 2 (w.e.f. 9-4-1999). [This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words "not exceeding five hundred rupees) in the whole" have been omitted (Seesection 2, Cr.P.Code (Amdt.) Act, 2001 (w.e.f. 24-9-2001)—Ed.]

[Uttar Pradesh].—In its application to the State of Uttar Pradesh, in section 125,—

(a) in sub-section (1), for the words “five hundred rupees”, substitute “five thousand rupees”;

(b) after sub-section (5), insert the following sub-section, namely:—

“(6) Where in a proceeding under this section it appears to the Magistrate that the person claiming maintenance is in need of immediate relief for his support and the necessary expenses of the proceeding, the Magistrate may, on his application, order the person against whom the maintenance is claimed, to pay to the person claiming the maintenance, during the pendency of the proceeding such monthly allowance not

exceeding five thousand rupees and such expenses of the proceeding as the Magistrate consider reasonable and such order shall be enforceable as an order of maintenance.”— Uttar Pradesh Act 36 of 2000, section 2 (w.e.f. 13-8-2001).

[West Bengal].—In its application to the State of West Bengal, in section 125,—                                                 

(1) in sub-section (1), for the words “five hundred rupees”, substitute “one thousand and five hundred rupees”;

(2) after the existing proviso, insert the following proviso, namely:—

“Provided further that where in any proceeding under this section it appears to the Magistrate that the wife referred to in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred to in clause (c) or the father or the mother referred to in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding, the expenses of the proceeding, and monthly during the proceeding such allowance as, having regard to the income of such person, it may seem to the Magistrate to be reasonable.”—West Bengal Act 25 of 1992, section 4 (w.e.f. 2-8-1993). [This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words “not exceeding five hundred rupees in the whole” have been omitted (See section 2,Cr.P.Code(Amdt.) Act,2001 (w.e.f. 24-9-2001)—Ed,}

COMMENTS

Amendment Act SO of 2001—Statement of Objects and Reasons.—It has been observed that an applicant, after filing application in a Court under section 125 of the Code of Criminal Procedure, 1973, has to wait for several years for getting relief from the Court. It is, therefore, felt that express provisions should be made in the said Code for interim maintenance allowance to the aggrieved person under said section 125 of the Code. Accordingly, it is proposed that during the pendency of the proceedings, the Magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the Magistrate considers reasonable, to the aggrieved person. It is also proposed that this order be made ordinarily within sixty days from the date of the service of the notice.

2. The ceiling of rupees five hundred per month for maintenance allowance was prescribed in the year 1955 in section 488 of the Code of Criminal Procedure, 1898. A ceiling of rupees five hundred was prescribed in section 125 of the Code of Criminal Procedure, 1973 on the lines of section 488 of the Code of Criminal Procedure, 1898 which has since been repealed. In view of the cost of living index centrally rising, retention of a maximum ceiling is not justified. If a ceiling is prescribed and retained, it would require periodic revision taking into account the inflation and rise in the cost of living as well as amendment of provisions of the Act from time to time. This would necessarily be time consuming. Accordingly, it is also proposed to amend section 125 and make consequential changes in section 127 of the Code of Criminal Procedure to remove the ceiling of maintenance allowance.

Object.—S. 125, Cr.P.Code is intended to curtail destitution and also to ameliorate orphancy. Hence, the High Courts should be slow to interfere with a positive finding in favour of marriage and paternity of a child. But that principle cannot be imported in a case where a child happened to be bastardized as a consequence of the order passed by the Magistrate and the claimant was in effect found to be a woman of unvirtuous morality. In such a situation, the High Court should have entertained revision and re-evaluated the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not: Pravati Rani Sahoo v. Bishnupada Sahoo 2004 S.C.C (Cr.) 1140.

The object of S. 125 is to achieve a social purpose, i.e., to prevent vagrancy and destitution: Vimala v. Veeraswamy (1991) 2 S.C.C. 375:1991 S.C.C. (Cr.) 442; to protect women

A right and wrongs

 V. VENKATESAN

 
SURVIVORS OF THE Bhopal gas tragedy outside the Prime Minister’s Office in New Delhi to file right to information requests regarding the civil nuclear liability Bill, on May 4.

AN Act is usually amended to address certain concerns that come up during its implementation. However, the beneficiaries of the Right to Information Act, 2005, oppose any amendment to the Act, because they suspect the government’s intentions.

The Department of Personnel and Training (DoPT) admitted to considering 11 amendments to the Act in a letter to the RTI activist Subhash Chandra Agrawal in April. Among these were some key amendments aimed at strengthening the Act. One such is a proposal to amend Section 2 (dealing with definitions) to remove the difficulty in ascertaining whether a particular non-governmental organisation should be treated as public authority or not.

Another is to amend Section 4 (dealing with obligations of public authorities) so as to enlarge the scope of suo motu disclosure of information by public authorities. Many public authorities are not forthcoming with their proactive disclosure documents on certain categories of information listed under the Act. Even in those instances where some efforts have been made to put together these documents, they are not easily available except on the Internet.

As a result of this lacuna in implementation, people are forced to seek this information in writing and wait for 30 days for a reply. Those who make the requisition are charged application fees for information that the public authorities are bound to disclose proactively. In some instances, they receive information after three or four weeks. Both actions of the public authorities are against the spirit of the Act. Information disclosed proactively must be made accessible to the person who seeks it without any delay.

The government is also examining an amendment to Section 19 (dealing with appeal) to enable the constitution of the benches in the Central Information Commission (CIC). This is a welcome move, as the DoPT has, in a circular, criticised the creation of benches by the CIC, as in its view they should decide appeals and complaints in a collegium. The Delhi High Court, in a recent case, erroneously upheld this position, which is now under appeal before the Supreme Court. Observers have pointed out that when the Central and State Information Commissions hear cases in benches, they can dispose of cases before them expeditiously, whereas if they hear cases in a collegium, it may lead to a backlog of cases.

What makes RTI activists suspect these seemingly good proposals is that the government is examining them along with ominous ones. A discussion with the stakeholders on these proposals, whenever it is held, would suggest that the government may not, after all, clear the good proposals if there is no agreement on those that are likely to weaken the Act.

Thus, one of the proposals opposed by the activists is the amendment to Section 7 to avoid frivolous or vexatious requests. Section 7 deals with disposal of requests by the Public Information Officer. The definition of what constitutes frivolous or vexatious request will always be debatable.

Another proposal that has invited the wrath of the activists is the one to amend Section 8 (dealing with exemption from disclosure) to modify slightly the provision about disclosure of Cabinet papers “to ensure smooth functioning of the government and to take care of the sensitivity of the office of the Chief Justice of India”. This is a sequel to the letter Justice K.G. Balakrishnan (currently Chairman of the National Human Rights Commission) wrote, before his retirement as the Chief Justice of India, to Prime Minister Manmohan Singh requesting exemption for the office of the CJI from the purview of the RTI Act. The activists questioned the propriety of the CJI in writing such a letter to the Prime Minister when the Supreme Court was hearing an appeal against the Delhi High Court’s judgment that the office of the CJI came under the RTI Act.

What has come as a big relief to the beneficiaries of the Act from this latest reply of the DoPT to an RTI applicant is that the government is no longer considering exempting file notings from its applicability. On October 14, 2009, at a national-level conference of Information Commissioners convened by the DoPT behind closed doors, the department sought their approval for amending the Act to exclude “information regarding discussions/consultations that take place before arriving at a decision in a public authority”, a euphemism for “file notings”.

MEMBERS OF THE National Campaign for People’s Right to Information staging a dharna against amendments to the RTI Act. A file photograph.

Office procedure manuals require all government officers involved in the chain of decision-making on any matter to record their opinion, advice and words of caution in the file concerned. These are called file notings – essentially they are a record of the consultation and discussions that must necessarily be held before any decision is made or action is planned by a public authority.

As the Commonwealth Human Rights Initiative (CHRI) has suggested in a study, citizens must have the right to hold public functionaries accountable for tendering ill-considered or unlawful advice or advice that is intended to benefit vested interests. This will be possible only if people have access to all information about the decision-making process. If the category of discussions and consultations is excluded, the primary objective of the RTI Act, namely, enabling citizens to hold the government and its instrumentalities accountable, will become impossible to attain. Transparency in the details of the decision-making process will ensure that officials tender only such opinion and recommendations that have a basis in law, are in tune with established norms, and are defensible when questioned.

Following intense opposition from the Information Commissioners, the CIC and civil society, the DoPT appears to have tentatively abandoned the proposal. The DoPT apparently thinks information regarding who gave what opinion or advice in a decision-making process has no relevance to the general public. It is claimed that disclosure of such information will hamper the free flow of thought among officers. Activists, therefore, wonder whether the DoPT’s latest proposal to deny information to frivolous and vexatious petitioners is aimed at refusing disclosure of file notings without actually calling it so.

Another proposal under the government’s consideration is to amend Section 24 to incorporate a provision about partial exemption of organisations possessing “sensitive information”. Section 24, at present, only says the Act shall not apply to the intelligence and security organisations specified in the Second Schedule of the Constitution, and that information pertaining to allegations of corruption and human rights violations shall not be excluded. The expression “sensitive information”, therefore, has given rise to misgivings about the government’s intentions. The Second Schedule currently includes 22 organisations.

According to the CHRI, the DoPT has announced its intention to review this list and pull out the following organisations: the Directorate of Revenue Intelligence, the Directorate of Enforcement, the Narcotics Control Bureau, the Special Frontier Force, the Border Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police, the Central Industrial Security Force and the Assam Rifles. The CHRI has welcomed the proposal to remove these entities from the Second Schedule, as this blanket exclusion is against the principle of maximum disclosure that underpins the Act. According to the CHRI, this withdrawal of names of organisations from the Second Schedule does not require an amendment of the RTI Act. It can be accomplished by a simple gazette notification, which the government can place before Parliament later for approval.

The CHRI has suggested that there is a strong case for removing all such organisations from the list. The sensitive information held by such organisations is adequately protected by the exemptions provided under Section 8(1) of the Act as is the case with any other public authority. There is no reason why non-sensitive information about their appointed functions must also be excluded from public authority, the CHRI says.

There are other lacunae in the Act, which have so far not caught the government’s attention. The RTI Act and the Rules made under it do not specify a time limit for Information Commissioners to dispose of appeals and complaints. A time limit will ensure that there is no accumulation of cases.

The CHRI has proposed that all Information Commissioners should lay down for themselves a maximum time limit within which to dispose of appeals and complaints and this time limit must be disclosed proactively (for example, at least 90 per cent of the cases must be disposed of within three months).

Section 26 makes the government duty-bound to organise educational programmes with particular emphasis on disadvantaged communities. The CHRI has proposed that the Central and State governments must incorporate public education and training of officers with regard to the RTI as an important component of their regular work in all departments. It has urged all governments to allocate adequate resources for conducting public education programmes and training officers and employees of all public authorities.

A study has found that awareness about the Act in rural areas is much less than in urban areas; awareness among women is much less than among men; and the gap in implementation of the Act is because of the absence of accountability in respect of various functionaries. The CHRI has suggested that these are the result of non-compliance with the obligations under Section 26. The governments have not even allocated adequate resources for public education in their budgets even though Section 26 says disadvantaged communities must be the focus of the government’s public education efforts, the CHRI has pointed out.

- courtesy: ‘Frontline’

(b) where the person aggrieved by an offence is the wife, complaint may be made on her behalf by her father, mother, brother, sister, or by her father’s or mother’s, brother or sister, and

(3) every offence under section 4-A shall be cognizable:

Provided that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under this Act or make any arrest therefor.”—Punjab Act 26 of 1976, S. 5 (w.e.f. 20-5-1976).

[West Bengal].—In its application to the State of West Bengal, in S. 7,—

(a) for the words and figures “Code of Criminal Procedure, 1898″, substitute “Code of Criminal Procedure, 1973″;

(b) for the words “Presidency Magistrate or a Magistrate of the first class”, wherever they occur, substitute “Metropolitan Magistrate or a Judicial Magistrate of the first class”; and

(c) in Cl. (b), for the words “one year from the date of the offence”, substitute “three years from the date of the offence”.—W.B. Act 35 of 1975, S. 5 (w.e.f. 23-9-1975).

²²[8. Offences to be cognizable for certain purposes and to be ^[non-bailable] and non-compoundable.—(1) The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to offences under this Act as if they were cognizable offences—

(a) for the purposes of investigation of such offences; and                  -

(b) for the purposes of matters other than—

(c) matters referred to in section 42 of that Code; and (it) the arrest of a person without a warrant or without an order of a Magistrate.

(d) Every offence under this Act shall be ²³[non-bailable] and non-compoundable.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 8, substitute the following section, namely:—

“8. Offences to be cognizable, non-bailable and non-compoundable.—Every offence under this Act shall be cognizable, non-bailable and non-compoundable.”—Bihar Act 4 of 1976, S. 5 (w.e.f. 20-1-1976).

[Himachal Pradesh].—In its application to the State of Himachal Pradesh, for S. 8, substitute the following section, namely:—

“8. Offences to be cognizable, non-bailable and non-compoundable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable, non-bailable and non-compoundable”.—H.P. Act 25 of 1976, S. 6 (w.e.f. 24-6-1976).

[Orissa].—In its application to the State of Orissa, in S. 8, for “every offence”, substitute “save as otherwise provided, every offence”.—Orissa Act 1 of 1976, S. 3 (w.e.f. 18-1-1976).

[Punjab].—In its application to the State of Punjab, for S. 8, substitute the following section, namely:—

“8. Offences to be bailable and non-compoundable.—Every offence under this Act shall be bailable and non-compoundable.”—Punjab Act 26 of 1976, S. 7 (w.e.f. 20-5-1976).

²⁴[8-A. Burden of proof in certain cases.—Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under these sections shall be on him.]

State Amendments—[Himachal Pradesh].—In its application to the State of Himachal Pradesh, for S. 8-A, substitute the following section, namely:—

22. Substituted by Act 63 of 1984, S. 7, for S. 8 (w.e.f. 2-10-1985).

23. Substituted by Act 43 of 1986, S. 7, for “bailable” (w.e.f. 19-11-1986).

24. Inserted by Act 43 of 1986, S. 8 (w.e.f. 19-11-1986)                                                   

“8-A. Cognizance of offences—No Court shall take cognizance of any offence under this Act except on a police report under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint made by a person aggrieved by the offence, as the case may be, within one year from the date of the commission of the offence:

Provided that no police officer of the rank lower than that of the Deputy Superintendent of Police shall investigate any case registered under this Act:

Provided further that no Court shall take cognizance of any offence under this Act except with the previous sanction of the District Magistrate, having jurisdiction in the area.”—H.P. Act39 of 1978,S. 6 (w.e.f. 4-12-1978).

[Punjab].—In its application to the State of Punjab, after S. 8, insert the following section, namely:—

“8-A. Institution of proceedings.—No prosecution shall be instituted against any person in respect of any offence committed under this Act without the previous sanction of the District Magistrate of such officer as the State Government may by special or general order appoint in this behalf .”—Punjab Act 26 of 1976, S. 7 (w.e.f. 20-5-1976).

²⁵[8-B. Dowry Prohibition Officers.—(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely:—

(a) to see that the provisions of this Act are complied with; (V) to prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry;

(c) to collect such evidence as may be necessary for the prosecution of persons committing offences under this Act; and

(d) to perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rules made under this Act.

(3) The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitations and conditions as maybe specified by rules made under this Act.

(4) The State Government may, for the purpose of advising and assisting Dowry Prohibition Officers in the efficient performance of their functions under this Act, appoint an Advisory Board consisting of not more than five social welfare workers (out of whom at least two shall be women) from the area in respect of which such Dowry Prohibition Officer exercises jurisdiction under sub-section (1).]

9. Power to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

²⁶[(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for—

(a) the form and manner in which, and the persons by whom, any list of presents referred to in sub-section (2) of section 3 shall be maintained and all other matters connected therewith; and

(b) the better co-ordination of policy and action with respect to the administration of this Act.]

25. Inserted by Act 43 of 1986, S. 8 (w.e.f. 19-11-1986).                                                                                             

26. Inserted by Act 63 of 1984, S. 8 (w.e.f. 2-10-1985).                                                                                          

²⁷[(3)] Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or ²⁸[in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

State Amendments—[Himachal Pradesh].—In its application to the State of Himachal Pradesh, in S. 9 —

(a) after the words ” Central Government”, insert “or the State Government with the prior approval of the Central Government”;

(b) in sub-S. (2), after the words “every rule made” and before the words “under this section”, insert “by the Central Government”;

(c) after sub-S. (2), add the following sub-section, namely:—

“(3) Every rule made by the State Government under this section shall be laid, as soon as may be, after it is made, before the State Legislature while it is in session for a total period of not less than seven days, which may be comprised in one session or in two successive sessions and if before the expiry of the session in which it is so laid or the sessions immediately following, the Legislature requires any modification in the rule or desires that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule”.— H.P. Act 25 of 1976, S. 7 (w.e.f. 24-6-1976).

[Punjab].—In its application to the State of Punjab, in S. 9,—

(1) in sub-S. (1), after the words “Central Government”, insert “or the State Government”;

(it) in sub-S. (2), after the words “every rule made”, insert “by the Central Government”; and

(Hi) after sub-S. (2), add the following sub-section, namely:—

“(3) Every rule made under this section by the State Government shall be laid, as soon as may be, after it is made, before the House of the State Legislature while it is in session for a total period of ten days which may be comprised in one session or in two or more successive sessions, and, if before the expiry of the session in which it is so laid or the successive sessions aforesaid, the House agrees in making any modification in the rule or the House agrees that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”—Punjab Act 26 of 1976, S. 8 (w.e.f. 20-5-1976).

²⁹[10. Power of State Government to make rules.—(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for allor any of the following matters, namely:—

(«) the additional functions to be performed by the Dowry Prohibition Officers under sub-section (2) of section 8-B;

(b) limitations and conditions subject to which a Dowry Prohibition Officer may exercise his functions under sub-section (3) of section 8-B.

(3) Every rule made by the State Government under this section shall be laid as soon as may be after it is made before the State Legislature.]

27. Sub-S. (2) renumbered as sub-S. (3) thereof by Act 63 of 1984, S. 8 (w.e.f. 2-10-1985).

28. Substituted by Act 20 of 1983, S. 2 and Sch., for certain words (w.e.f. 15-3-1984).

29. Substituted by Act 43 of 1986, S. 9, for S. 10 (w.e.f. 19-11-1986).

 (Hi) gives in the form of sagun at the time of thaka, betrothal or marriage, anything the value of which exceeds eleven rupees; or

(iv) gives to the parents or any other relation of a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage; or

(v) serves to the marriage party more than two principal meals; shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both.

Explanation.—In this section the expression “principal meal” means lunch or dinner.”— Punjab Act 26 of 1976, S. 4 (w.e.f. 20-5-1976).

[West Bengal].—In its application to the State of West Bengal, after S. 4, insert the following section, namely:—

“4-A. Penalty for depriving any party of the rights and privileges of marriage.—(1) If after the marriage, any party to the marriage with or without assistance of his parents or guardians deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which shall not be less than three months, but may extend to one year or with fine which shall not be less than two thousand rupees, but may extend to five thousand rupees, or with both.

(2) The provisions of this section shall be in addition to, and not in derogation of, any provisions on the subject contained in any other law for the time being in force.”—W.B. Act 35 of 1975, S. 5 (w.e.f. 23-9-1975).

Section 4-B

State Amendments—(Himachal Pradeshl—In its application to the State of Himachal Pradesh, after S. 4-A, insert the following section, namely:—

“4-B. Penalty for depriving any party of the rights and privileges of marriage.—(1) If after the marriage, any party to the marriage with or without assistance of any other person, deprives the other party of the rights and privileges of marriage or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.

(2) The provisions of this section shall be in addition to and not in derogation of, any provision on the subject contained in any other law for the time being in force.”— H.P. Act 25 of! 976, S. 4 (w.e.f. 24-6-1976).

[Punjab].—In its application to the State of Punjab, after S. 4-A, insert the following section, namely:—

“4-B. Penalty for depriving any party of rights and privileges of marriage.—Any party to the marriage who, after the marriage, deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party, for non-payment of dowry, and any person who assists such party in the commission of such offence, shall be punishable with imprisonment for a term which may extend to one year, and fine which may extend to five thousand rupees.”—Punjab Act 26 of 1976, S. 4 (w.e.f. 20-5-1976).

5. Agreement for giving or taking dowry to be void.—Any agreement for the giving or taking of dowry shall be void.

6. Dowry to be for the benefit of the wife or her heirs.—(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman—

(a) if the dowry was received before marriage/ within ¹³[three months] after the date of marriage; or

(b) If the dowry was received at the time of or after the marriage, within ¹³[three months] after the date of its receipt; or

(c) it the dowry was received when the woman was a minor, within .”[three months] after she has attained the age of eighteen years, arid pending such transfer, shall hold it in trust for the benefit of the woman.

13. Substituted by Act 63 of 1984, S. 5, for “one year” (w.e.f. 2-10-1985).

¹⁴[(2) If any person fails to transfer any property as required by sub­section (1) within the time limit specified therefor_/ ¹⁵[or as required by sub­section (3)], he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine ¹⁶[which shall not be less than five thousand rupees, but which may extend to ten thousand rupees] or with both.]

(3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:

¹⁵[Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,—

(a) if she has no children, be transferred to her parents, or

(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.]

¹⁷[(3-A) Where a person convicted under sub-section-(2) for failure to transfer any property as required by sub-section (1) ¹⁸[or sub-section (3)] has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, ¹⁹[her heirs, parents or children], the Court shall, in addition to awarding punishment under that sub­section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, ¹⁹[her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be, ¹⁹[her heirs, parents or children].

(4) Nothing contained in this section shall affect the provisions of section 3 or section 4.

State Amendments—[Haryaria].—In its application to the State of Haryana, in sub-S. (2) of S. 6, for “or with fine which may extend to five thousand rupees, or with both”, substitute “and with fine which may extend to five thousand rupees”.—Haryana Act 38 of 1976, S. 3 (w.e.f. 11-8-1976).

Sections 6-A and 6-B

State Amendments—[Orissa].—In its application to the State of Orissa, after S. 6, insert the following sections, namely:—

“6-A. Penalty for denial of conjugal right by the husband.—(1) If any person denies conjugal rights to his wife on the ground that dowry has not been given or on the ground that the dowry given is insufficient, he shall be punishable with imprisonment which may extend to one year, or with fine which may extend to ten thousand rupees or with both.

(2) The Court trying an offence under this section may, at any stage of the proceedings, on the execution of a bond by the husband undertaking not to realise the dowry or any portion thereof as the case may be, and to allow conjugal rights to the wife, drop the proceedings.

(3) Any proceedings dropped under sub-section (2) shall revive if the Court is satisfied, or an application made in that behalf by the wife that the husband has failed to carry out the undertaking or has otherwise acted contrary to the terms of the bond, and thereupon the Court shall proceed with the case from the stage at which it was dropped:

14. Substituted by Act 63 of 1984, S. 5, for sub-S. (2) (w.e.f. 2-10-1985).                                                                         

15. Inserted by Act 43 of 1986, S. 5 (w.e.f. 19-11-1986).

16. Substituted by Act 43 of 1986, S. 5, for “which may extend to ten thousand rupees”
(w.e.f. 19-11-1986).                                                                                                                        

17. Inserted by Act 63 of 1984, S. 5 (w.e.f. 2-10-1985).                                                                                          

18. Inserted by Act 43 of 1986,8.5 (w.e.f. 19-11-1986).                                                                                              

19. Substituted by Act 63 of 1984, S. 5, for “her heirs” (w.e.f. 19-11-1986).                         

Provided that no application under this sub-section shall be entertained if it is made after the expiry of three years from the date on which the proceedings were dropped.

(4) The Court may direct that the fine, if any, imposed under this section or such portion thereof as the Court deems proper, shall be paid to the wife as compensation.

6-E. Maintenance to be paid by husband on his conviction.—(1) On conviction of a person for an offence under section 6-A, the Court trying the offence may, on a claim made by his wife in that behalf within two months from the date of the order of conviction, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees, as the Court deems proper:

Provided that no such order shall be made without giving the parties concerned a reasonable opportunity of being heard.

(2) In determining the monthly allowance under this section regard shall be had to—

(a) the position and status of the parties;       (b) the reasonable wants of the wife;

(c) the value of the wife’s property and any income derived from such property, or from the wife’s earnings or from any other source; and

(d) the amount of compensation awarded under section 6-A.

(3) The maintenance allowance so ordered shall be a charge on the property, if any, of the husband, whether acquired before or after the date of the order.

(4) Where a complaint has been filed by the wife for an offence under section 6-A, the husband shall not transfer any of his assets till—

(a) where no claim for maintenance has been preferred under this section, the date of expiry of the period of limitation specified in sub-section (1) for filing such claim; and

(b) where such claim is preferred, the disposal of the claim.

(5) Notwithstanding anything contained in any other law, the wife may enforce any claim for maintenance against any property transferred by the husband in contravention of the provisions of sub-section (4) as if such transfer were null and void.

(6) The provisions contained in sub-section (3) of section 125 of the Code of Criminal Procedure, 1973 shall, so far as may be, apply to the recovery of the maintenance allowance ordered under this section.”—Orissa Act 1 of 1976, S. 2 (w.e.f. 18-1-1976).

²⁰[7. Cognizance of offences.—(1) Notwithstanding anything contained in the Code of Criminal Procedure., 1973 (2 of1974),—

(«) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of an offence under this Act except upon—

(f) its own knowledge or a police report of the facts which constitute such offence, or

(if) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;

(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.

Explanation.—For the purposes of this sub-section, "recognized welfare institution or organisation" means a social welfare institution or organisation recognized in this behalf by the central or State Government.

20. Substituted by Act 63 of 1984, S. 6, for S. 7 (w.e.f. 2-10-1985).

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.]

²¹[(3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 7, substitute the following section, namely:—

“7. Trial of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.”—Bihar Act 4 of 1976,S.4(w.e.f.20-l-1976).

[Haryana].—In its application to the State of Haryana, for S. 7, substitute the following section, namely:—

“7. Cognizance of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) no Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of any such offence except on a complaint made by any party to the marriage or her father, mother or brother or a Gazetted Officer specially authorised by the State Government in this behalf, within a period of one year from the date of the marriage;

(c) no Court shall take cognizance of any such offence except with the previous sanction of the District Magistrate or of such officer as the State Government may, by general or special order, specify in this behalf;

(d) no enquiry shall be got made through any Police Officer below the rank of a Deputy Superintendent of Police;

(e) no woman shall be called to a Police Station for the purpose of an enquiry regarding any offence under this Act.”—Haryana Act 38 of 1976, S. 4 (w.e.f. 11 -8-1976).

[Himachal PradeshJ.—In its application to the State of Himachal Pradesh, for S. 7, substitute the following section, namely:—

"7. Trial of offences.—[*] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act.

[*] No Court shall take cognizance of any offence under this Act, except that of offence under section 4-B, except on a police report or complaint made within one year of the marriage.”—H.P. Act 25 of 1976, S. 5 (w.e.f. 24-6-1976) as amended by H.P. Act 39 of 1978, S. 5, (w.e.f. 4-12-1978).

[Punjab],—In its application to the State of Punjab, for S. 7, substitute the following section, namely:—

“7. Cognizance of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(1) No Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act;

(2) No Court shall take cognizance of any offence punishable under sections 3, 4 and 4-B, except upon a complaint made within one year from the date of the offence, by some person aggrieved by the of fence:                                                                                                     
Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public some other person may, with the leave of the Court, make a complaint on his or her behalf;

21. Inserted by Act 43 of 1986, S. 6 (w.e.f. 19-11-1986).

or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II.—The expression “valuable securities” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

(«’) “marriage expenses” shall include expenses incurred directly or indirectly at or before the marriage on—

(«) Thakka, Sagai, Tikka, Shagun and Milni ceremonies;

(b) the gifts made by one party to a marriage to the other party to the marriage or by the parents, grand-parents and brothers of either party to a marriage, to either party to the marriage or the blood relations thereof;

(c) illumination, food and the arrangements for serving food to the members of the marriage party and other expenses incidental thereto.

Explanation.—For the removal of doubts, it is hereby declared that any gifts made by a person other than those specified in sub-clause (b), at the time of marriage to either party to the marriage shall not be deemed to be marriage expenses”.—Haryana Act 38 of 1976, S. 2 (w.e.f. 11-8-1976).

                                          COMMENTS                                                                                                                                                

Demand of dowry after three years of happy life certainly is not relating to the marriage as it neither relates to the one nor agreed to be given at or before or after the marriage: Shanmughavelu v. State2004 Cr.L.J. 2731 (Mad.).

Any property or valuable security given or agreed to be given comes within the purview of “dowry” on three occasions in which any property or valuable security comes within its purview. They are: (i) before the marriage, (it) at the time of marriage, and (Hi) “at any time” after the marriage. The third occasion may appear to be an unending period, but the crucial words are “in connection with the marriage of the parties”. This means, giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties: Public Prosecutor, A.P. High Court v. Nese filakara Sreeramulu 2004 Cr.L.J. 1629 (Andh. Pra.) (F.B.).

Definition of dowry in £t-2 of the Dowry Prohibition Act (as amended by Act 43 of 1986) includes not only the period before and at the marriage but also the period subsequent to the marriage. Therefore, the argument that there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring in S. 2 of the Dowry Prohibition Act, and in the absence of any such evidence it would not constitute a dowry is not tenable: State ofAndhra Pradesh v. Raj GopalAsawa A.I.R. 2004 S.C. 1933: (2004) 4 S.C.C 470:2004 Cr.L.J. 1791. See also Pawan Kumarv. State of Haryana (1998) 3 S.C.C. 309.

“Dowry” definition is to be interpreted with the other provisions of the Act including S. 3, which refers to giving or taking dowry and S. 4 which deals with a penalty for demanding dowry, under the Dowry Prohibition Act and Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry: State of Andhra Pradesh v. Raj GopalAsawa A.I.R. 2004 S.C. 1933: (2004) 4 S.C.C. 470:2004 Cr.L.J. 1791.

What is the periphery of the word “dowry” came to be considered by the Supreme Court in the decision in Pawan Kumar v. State ofHaryana (1998) 3 S.C.C. 309 and in the teeth of the extended definition and meaning of the term as brought about by the Dowry Prohibition (Amendment) Act, 1986 (Central Act 43 of 1986) w.e.f. 19-11-1986 the earlier meaning confining and limiting the same to the time at or before the marriage got enlarged and extended even to the period after the marriage and that there be no need to also show any agreement for the payment of such dowry to make it punishable as an offence: Vidhya Devi v. State ofHaryana A. I. R 2004 S.C. 1757: (2004) 9 S.C.C. 476.

3. Petwaty for giving or taking dowry.—⁶[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable ⁷[with imprisonment for a term which shall not be less than ⁸[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than ⁹[five years.]

^w[(2) Nothing in sub-section (1) shall apply to, or in relation to,—

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

(b) presents which are given at the time of a  marriage to the bridegroom (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 3, substitute the following section, namely:—

“3. Penalty for giving or taking dowry.-—If any person after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees.”—Bihar Act 4 of 1976, S. 2 (w.e.f. 20-1-1976).

[Haryanal.—In its application to the State of Haryana, for S. 3, substitute the following section, namely:—

"3. Bar of certain acts.—No person shall—

(a) give or take or abet the giving or taking of dowry;

(b) demand, directly or indirectly from the parents or guardians of a bride or bridegroom, as the case may be, any dowry;

(c) incur marriage expenses the aggregate value whereof exceeds five thousand rupees;

(d) display any gifts made at or before the marriage in the form of cash ornaments, clothes or other articles;

(e) take or carry in excess of—                                                                          

(i) twenty-five members of the marriage party; and

(if) eleven members of the band;

(/) deny conjugal rights to his wife on the ground that dowry has not been given or the dowry given is insufficient."—Haryana Act 38 of 1976, S. 2 (w.e.f. 11-8-1976).

6. S. 3 renumbered as sub-S. (1) thereof by Act 63 of 1984, S. 3 (w.e.f. 2-10-1985).

7. Substituted by Act 63 of 1984, S. 3, for "with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both" (w.e.f. 2-10-1985).

8. Substituted by Act 43 of 1986, S. 3, for "six months, but which may extend to two years, and with fine which may extend to ten thousand rupees or the amount of the value of such dowry, whichever is more" (w.e.f. 19-11-1986).

9. Substituted by Act 43 of 1986, S. 3, for "six months" (w.e.f. 19-11-1986).

10. Inserted by Act 63 of 1984, S.3 (w.e.f. 2-10-1985).       .

[Himachal Pradesh].—In its application to the State of Himachal Pradesh, for S. 3, substitute the following section, namely:—

“3. Penalty for giving or taking dowry.—If any person gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.”—H.P. Act 25 of 1976, S. 2 (w.e.f. 24-6-1976).

(Punjab].—In its application to the State of Punjab, in S. 3, for the words “six months or with fine which may extend to five thousand rupees”, substitute “one year, and fine which may extend to five thousand rupees”.—Punjab Act 26 of 1976, S. 2 (w.e.f.20-5-1976).

[West Bengal].—In its application to the State of West Bengal, in S. 3, for the words “which may extend to six months, or with fine which may extend to five thousand rupees”, substitute “which shall not be less than three months, but may extend to three years or with fine which shall not be less than two thousand rupees, but may extend to ten thousand rupees”.—W.B. Act 35 of 1975, S. 2 (w.e.f. 23-9-1975).

COMMENTS

This deep-rooted social evil requires to be controlled not only by effective implementation of the Dowry Prohibition Act, 1961, but also by the Society. The Society has to find out ways and means of controlling and combating this menace of receipt and payment of dowry. It appears that instead of controlling payment and receipt of dowry in one or other form, it is increasing even in educated class. May be that, it is increasing because of accumulation of unaccounted wealth with few and others having less means follow the same out of compulsion: Vikas v. State ofRajasthan 2002 Cr.L.J. 3760 (S.C.).

Ss. 3 and 4 of the Dowry Prohibition Act make out independent offences, but in the instant case it was the demand for dowry coupled with harassment which constitutes the basis of the prosecution case. Once the main part of the charge under S. 304-B was not found established, it was not possible to record conviction under Ss. 3 and 4 of the Dowry Prohibition Act: SakhiMandalaniv. State ofBihar (1999) 5 S.C.C. 705:1999 S.C.C. (Cr.) 1039.

ⁿ[4. Penalty for demanding dowry.—If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 4, substitute the following section, namely:—

“4. Penalty for demanding dowry.—If any person, after the commencement of this Act, demands directly or indirectly from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees:

Provided that no Court shall take cognizance of any offence under this section except with the previous sanction of the State Government or of such officer as the State Government, may, by general or special order/specify in this behalf.”—Bihar Act 4 of 1976, S. 3 (w.e.f. 20-1-1976).

IHaryana].—In its application to the State of Haryana, for S. 4, substitute the following section, namely:—

“4. Penalty.—(1) If any person contravenes any of the provisions of section 3, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees.

(2) The Court trying an offence under clause (/) of section 3 relating to conjugal rights may at any stage of the proceedings, on the execution of a bond by the husband

11. Substituted by Act 63 of 1984, S. 4, for S. 4 (w.e.f. 2-10-1985).

undertaking not to demand dowry and to allow conjugal rights to the wife, drop the proceedings.

(3) Any proceedings dropped under sub-section (2) shall revive if the Court is satisfied, on an application made by the wife in this behalf, that the husband has failed to carry out the undertaking or has otherwise acted contrary to the terms of the bond, and thereupon the Court shall proceed with the case from the stage at which it was dropped:

Provided that no application under this sub-section shall be entertained if it is made after the expiry of a period of three years from the date on which the proceedings were dropped.

(4) The Court may direct that the fine, if any, imposed for the contravention of clause (/) of section 3, or such portion thereof, as the Court may deem proper, shall be paid to the wife.”—Haryana Act 38 of 1976, S. 2(w.e.f. 11-8-1976).

[Himachal Pradeshl.—In its application to the State of Himachal Pradesh, for S. 4, substitute the following section, namely:—

"4. Penalty for demanding dowry.—If any person demands, directly or indirectly, from the parents or guardian of a bride or bridegroom or from any other person, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees."—H.P. Act 25 of 1976, S. 3 (w.e.f. 24-6-1976).

¹²[4-A. Ban on advertisement.—If any person,—

(a) offers, through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relative;

(fc) prints or publishes or circulates any advertisement referred to clause (a),

he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months.]

State-Amendments—[Himachal Pradesh].—In its application to the State of Himachal Pradesh, after S. 4, insert the following section, namely:—

“4-A. Bar of certain acts.—Any person who—

.’.,”., (i) displays any presents made at the time of marriage in the form of cash, ornaments, clothes or other articles; or

(if) gives in the form of “shagun” at the time of “thaka”, betrothal or “tikka” anything the value of which exceeds eleven rupees; or

(in) gives to the parents or any other relation of a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees, or with both.”—H.P. Act 25 of 1976, S. 4 (w.e.f. 24-6-1976).

1 Punjab).—In its application to the State of Punjab, after S. 4, insert the following section, namely:—

“4-A. Bar of certain acts.—Any person who——

(i) displays any presents made at the time of such marriage in the form of cash, ornaments, clothes or other articles; or

(ii) takes in a marriage party more than twenty-five persons exclusive of minors and the members of the band; or

12. Inserted by Act 43 of 1986, S. 4 (w.e.f. 19-11-1986).

In two judgments last week, the Supreme Court (SC) ruled that in road accidents, insurance companies should pay compensation under the ‘no-fault liability’ clause in the Motor Vehicles Act irrespective of the circumstances of the deaths. In one appeal, Indra Devi vs Bagada Ram, the death was invited by the negligence of the deceased driver himself. The Rajasthan HC asked the recipients of the compensation to return the amount with interest to New India Assurance Co as the claimants were not entitled to the amount. The SC set aside the high court order and asserted the ‘no-fault liability’ under Section 140 of the Act did not depend upon the conduct of the driver or the victim. In the second case, Eshwarappa vs CS Gurushanthappa, the drunk driver and his four friends died while rashly driving to a temple without informing the car owner. The accidents tribunal denied any compensation. However, the SC ruled even in such cases, ‘no-fault liability’ cannot be avoided.

Pre-deposit of half the loan must before hearing appeal
Banks are trustees of public funds and they have a duty to recover debts by adopting all legally permissible methods, the SC stated while setting aside the judgment of the Madras high court in the case, Indian Bank vs Blue Jaggers Estates Ltd. According to the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, the debtor must deposit half the amount claimed to be due before the tribunal hears his appeal against sale of securities. In this case, the securities were sold for Rs 5 crore. The debtor argued since the amount recovered by the sale was more than half the dues, there was no need to deposit more for moving the appeal before the tribunal. The high court agreed. However, the SC allowed the appeal of the bank stating the amount recovered by the sale would not absolve the debtor from depositing 50 per cent of the claim, especially when the tribunal had not determined the exact amount due from the debtor.

Criminal case quashed
The SC has set aside the judgment of the Karnataka high court and quashed criminal cases against a former director of RPS Benefit Fund Ltd, a company which invited deposits from the public and failed to return the money (MAA Annamalai vs State of Karnataka). The company was wound up by the court, following which cheating cases were filed against the directors and the company by the depositors. The high court allowed the prosecution of the ex-director to go on, though he had pleaded that he had resigned before the winding up of the company. The SC quashed the high court order.

Labour court to decide on ‘worker’
The SC has overruled the Allahabad high court in the case, Triveni Engineering & Industries vs Jaswant Singh, and declared that the question whether a person was a worker should be decided by a labour court or industrial court and not by the labour commissioner. The employee was transferred to another unit, but he did not go, protesting that he could not be transferred under the standing orders. The company denied that he was its worker. The high court asked the labour commissioner to decide the issue. On appeal, the SC held that the high court order was wrong.

State to decide on trade unions
Deciding a dispute between two rival trade unions in Tata Memorial Hospital Centre for recognition, the SC has held that the state government was the appropriate authority under the Maharashtra Recognition of TUs and Prevention of Unfair Labour Practices Act.

It overruled the Bombay high court which had held that the central government was the appropriate authority to take action in industrial disputes. The SC pointed out that the hospital and centre were independent of the central government, and therefore the state government was the proper authority.

Voltage stabilisers, electronic goods
The SC has held that voltage stabilisers are electronic items and therefore attracted lesser sales tax. Dismissing a batch of appeals from Uttar Pradesh, Commissioner of Trade Tax vs Parikh Gramodyog Sansthan, the court ruled that stabilisers are not electric goods. A voltage stabiliser might have many components some of which use electricity. That cannot be the sole reason for classifying it as an electrical item, the judgment said.

CREDIT CARD ONLINE LEGAL SERVICES IN INDIA

Many people think that the modern day economics makes one indispensable to use credit card services offered by the banking and other institutions. Well, the values of the yester-years have not withstood the challenges of modern era. From the notion that indebtedness is bad and should be avoided, many people have started displaying their credit cards as their social status!

Since the credit card system encourages one to borrow money or buy goods (whether it is a necessity or not) for loan without bothering about his ability to repay it, millions of people have fallen prey to the consumerist culture and into a debt-trap.

News reports show that hundreds of people have been driven to suicides because they could not withstand the ignominy of the filthy languages and strong-arm tactics adopted by the muscle men masquerading as “recovery agents” of these banks.

Well again, these unfortunate souls were not without any legal remedy. VPS LAW FIRM, has provided great mental relief and sense of security to hundreds of its clients by providing legal solutions to their credit card problems. It has obtained successful court orders against the illegal recovery procedures adopted by the banks in India.

THE DOWRY PROHIBITION ACT, 1961¹ (28 OF 1961)

[20th May, 1961] An Act to prohibit the giving or taking of dowry.

be it enacted by Parliament in the Twelfth Year of the Republic of India as follows:—

Statement of Objects and Reasons.—The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if given does enure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2,000. Such a provision appears to be necessary to make the law workable.

Amendment Act 63 of 1984—Statement of Objects and Reasons.—The evil of dowry system has been a matter of serious concern to every one in view of its ever-increasing and disturbing proportions. The legislation on the subject enacted by Parliament, i.e., the Dowry Prohibition Act, 1961 and the far-reaching amendments which have been made to the Act by a number of States during the seventies have not succeeded in containing the evil. As pointed out by the Committee on the Status of Women in India, the educated youth is grossly insensitive to the evil of dowry and unashamedly contributes to its perpetuation. Government has been making various efforts to deal with the problem. In addition to issuing instructions to the State Governments and Union territory administrations with regard to the making of thorough and compulsory investigations into cases of dowry deaths and stepping up anti-dowry publicity. Government referred the whole matter for consideration by a Joint Committee of both the Houses of Parliament. The Committee went into the whole matter in great depth and its proceedings have helped in no small measure in focussing the attention of the public and rousing the consciousness of the public against this evil.

2. The following observations made by late Pandit Jawaharlal Nehru which have been quoted by the Committee indicate trie role which legislation can play in dealing with the evil:—

“Legislation cannot by itself normally solve deep-rooted social problems. One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape.”

The recommendations made by the Joint Committee of the Houses to examine the question of working of the Dowry Prohibition Act, 1961 have been considered keeping in view these observations and after taking into consideration the comments received on the Report from the State Governments, Union territory administrations and the different administrative Ministries of the Union concerned with the matter. One of the important recommendations of the Committee for dealing with cruelty to a married woman by the husband or the relatives of the husband on the ground of non-receipt of dowry or insufficient dowry has already been given effect to by the Criminal Law (Second Amendment) Act, 1983. This Act amended, inter alia, the Indian Penal Code to include therein a provision for punishment for cruelty to married women and was aimed at dealing directly with the problem of dowry suicides and dowry deaths.

1. The Act has been extended to (I) Dadra and Nagar Haveli by Regulation 6 of 1963 and (2) Pondicherry by Act 26 of 1968.                                                                         

3. The Joint Committee has recommended that the definition of “dowry” contained in section 2 of the 1961 Act should be modified by omitting the expression “as consideration for the marriage” used therein on the ground that it is well nigh impossible to prove that anything given were a consideration for the marriage for the obvious and simple reason that the giver i.e., the parents who are usually the victims would be reluctant and unwilling to set the law in motion. The omission of the words “as consideration for the marriage” would make the definition not only wide but also unworkable, for, if these words are omitted, anything given, whether before or after or at the time of marriage by any one, may amount to dowry. The Supreme Court has also placed a liberal construction on the word “dowry” as used in section 4 of the Dowry Prohibition Act, 1961, relating to demanding dowry. In the circumstances, it is proposed to substitute the words “in connection with the marriage” for the words “as consideration for the marriage” instead of omitting those words.

4. Section 3 of the Dowry Prohibition Act relating to the offences of giving or taking of dowry is being amended in accordance with the recommendations of the joint Committee to make the punishment for the offence more stringent. All presents given at the time of marriage to the bride and certain types of presents given at the time of marriage to the bridegroom are proposed to be excluded from the purview of the offences under the section. However, the recommendations of the Committee for exempting the giver of dowry from punishment is not being given effect to as such exemption may only prove to be counter­productive.

5. Section 4 of the Dowry Prohibition Act relating to penalty for demanding dowry is proposed to be amended to make the punishment thereunder more stringent on the lines recommended by the Joint Committee.

6. Section 6 of the Act is being amended in accordance with the recommendation of the Joint Committee, to reduce the time limit within which dowry received in connection with the marriage of a woman by any other person should be restored to the woman from one year to three months. Likewise, the punishment for failure to restore such dowry within the said time limit is being made more stringent on the lines recommended by the Committee. Under a special provision which is being included in section 6 where a person is convicted for failure to restore the dowry to the woman concerned within the period specified in the section, the Court may, in addition to awarding punishment, issue a direction requiring him to restore the property to the woman within the period specified in the direction. In case of non-compliance with the” direction, the value of the property would be recoverable from such person as if it were a fine and the amount so recovered may be paid to the woman concerned or, as the case may be her heirs.

7. Sections 7 and 8 of the Dowry Prohibition Act are proposed to be amended to give effect to the recommendations of the Committee as to cognizance of offences under the Act and making offences under the Act cognizable.

Amendment Act 43 of 1986—Statement of Objects and Reasons.—The Dowry Prohibition Act, 1961 was recently amended by the Dowry Prohibition (Amendment) Act, 1984 to give effect to certain recommendations of the Joint Committee of the Houses of Parliament to examine the question of the working of the Dowry Prohibition Act, 1961 and to make the provisions of the Act more stringent and effective. Although the Dowry Prohibition (Amendment) Act, 1984 was an improvement on the existing legislation, opinions have been expressed by representatives from women’s voluntary organisations and others to the effect that the amendments made are still inadequate and the Act needs to be further amend ed.

2. It is, therefore, proposed to further amend the Dowry Prohibition Act, 1961 to make provisions therein further stringent and effective. The salient features of the Bill are:—

(«) The minimum punishment for taking or abetting the taking of dowry under section 3 of the Act has been raised to five years and a fine of rupees fifteen thousand.

(b) The burden of proving that there was no demand for dowry will be on the person who takes or abets the taking of dowry.                               

, i he statement made by the person aggrieved by the offence shall not subject him to prosecution under the Act.

(d) Any advertisement in any newspaper, periodical journal or any other media by any person offering any share in his property or any money in consideration of the marriage of his son or daughter is proposed to be banned and the person giving such advertisement and the printer or publisher of such advertisement will be liable for punishment with imprisonment of six months to five years or with fine up to fifteen thousand rupees.

(e) Offences under the Act are proposed to be made non-bailable.

(/) Provision has also been made for the appointment of Dowry Prohibition Officers by the State Governments for the effective implementation of the Act. The Dowry Prohibition Officers will be assisted by the Advisory Boards consisting of not more than five social welfare workers (out of whom at least two shall be women).

(g) A new offence of “dowry death” is proposed to be included in the Indian Penal Code and the necessary consequential amendments in the Code of Criminal Procedure, 1973 and in the Indian Evidence Act, 1872 have also been proposed.

1. Short title, extent and commencement.—(1) This Act may be called the dowry prohibition act, 1961.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date² as the Central Government may, by notification in the Official Gazette, appoint.

2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before ³[or any time after the marriage] ⁴[in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. sr***i

Explanation II.—The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

State Amendment—[Haryana].—In   its application to the State of Haryana, for S. 2, substitute the following section, namely:—

“2. Definitions.—In this Act, unless the context requires,—

(;’) “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,

at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case, of persons to whom the Muslim Personal Law (Shnriat) applies.

Explanation 1.—For the removal of doubts it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes

2. Brought into force on 1-7-1961.

3. Substituted by Act 43 of 1986, S. 2, for “or after the marriage” (w.e.f. 19-11-1986).

4. Substituted by Act 63 of 1984, S. 2, for “as consideration for the marriage of the said parties, but does not include” (w.e.f. 2-10-1985).

5. Explanation I omitted by Act 63 of 1984, S. 2 (w.e.f. 2-10-1985).

CHAPTER I PRELIMINARY

1. Short title, extent and commencement.—(1) This Act may be called the family courts act, 1984.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates¹ may be appointed for different States.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “Judge” means the Judge or, as the case may be, the Principal Judge,
Additional Principal Judge or other Judge of a Family Court;                         :

(b) “notification” means a notification published in the Official Gazette;

(c) “prescribed” means prescribed by rules made under this Act;

(d) “Family Court” means a Family Court established under section 3;

(e) all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code.

CHAPTER II FAMILY COURTS

3. Establishment of Family Courts.—(1) For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this Act, the State Government, after consultation with the High Court, and by notification,—

(a) shall, as soon as may be after the commencement of this Act, establish for every area in the State comprising a city or town whose population exceeds one million, a Family Court;

(b) may establish Family Courts for such other areas in the State as it may deem necessary.

(2) The State Government shall, after consultation with the High Court,
specify, by notification, the local limits of the area to which the jurisdiction of a
Family Court shall extend and may, at any time, increase reduce or alter such
limits.                                                                                                                          

COMMENTS

A harmonious interpretation of Ss. 3, 7, 8 and 20 clearly indicates that there is no bar against the parties from approaching other Courts outside the jurisdiction of the family Court. The exclusion of the jurisdiction of the Courts is confined to the area over which the

1. Andaman and Nicobar Islands (w.e.f. 19-11-1986), Assam (2-10-1991), Bihar (10-12-1991), Daman and Diu (w.e.f. 10-10-2003), Delhi (19-11-1986), Goa (w.e.f. 16-4-1990), Haryana (2-11-1992), Karnataka (w.e.f. 25-5-1987), Kerala (w.e.f. 21-10-1989), Madhya Pradesh (w.e.f. 19-11-1986), Maharashtra (w.e.f. 1-12-1986), Manipur (w.e.f. 3-2-1992), Orissa (w.e.f. 1-5-1989), Pondicherry (w.e.f. 1-5-1987), Rajasthan (w.e.f. 19-11-1985), Sikkim (w.e.f. 2-10-1987), Tamil Nadu (w.e.f. 2-10-1986), Uttar Pradesh (w.e.f. 2-10-1986) and West Bengal (w.e.f. 1-11-1991).                                                                          

family Court exercises jurisdiction: P. Jayalakshmi v. V. Ravichandran A.I.R. 1992 Andh. Pra. 190: (1992) 2 Hindu L.R. 61:1992Cr.L.J. 1315.

4. Appointment of Judges.—(1) The State Government may, with the concurrence of the High Court, appoint one or more persons to be the Judge or Judges of a Family Court.

(2) When a Family Court consists of more than one Judge,—

(a) each of the Judges may exercise all or any of the powers conferred on the Court by this Act or any other law for the time being in force;

(b) the State Government may, with the concurrence of the High Court, appoint any of the Judges to be the Principal Judge and any other Judge to be the Additional Principal Judge;

(c) the Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of the business of the Court among the various Judges thereof;

THE FAMILY COURTS ACT, 1984

(66 OF 1984)

                             [5th September, 1984]

An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.

be it enacted by Parliament in the Thirty-fifth Year of the Republic of India as follows:—

Statement of Objects and Reasons.—Several associations of women, other organisation:* and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th Report (1974) had also stressed that in dealing with disputes concerning the family the Court ought to adopt an approach radically different from-that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure, 1908 was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the Courts in adopting this conciliatory procedure and the Courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was. therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes.

2. The Bill, inter alia, seeks to,—

(a) provide for establishment of Family Courts by the State Governments;

(b) make it obligatory on the State Governments to set up a Family Court in every city or town with a population exceeding one million;

(c) enable the State Governments to set up, such Courts in areas other than those specified in (b) above;

(d) exclusively provide within the jurisdiction of the Family Courts the matters relating to:—

(i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of a marriage or as to the matrimonial status of any person;

(») the property of the spouses or of either of them;                                  

(iii) declaration as to the legitimacy of any person;                                     
           (iv) guardianship of a person or the custody of any minor;

(v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure, 1973;

(e) make it obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or a settlement between the parties to a family dispute. During this stage, the proceedings will be informal and the rigid rules of procedure shall not apply;

(f) provide for the association of social welfare agencies, counsellors, etc., during conciliation stage and also to secure the services of medical and welfare experts;

(g) provide that the parties to a dispute before a Family Court shall not be entitled, as of right, to be represented by legal practitioner. However, the Court may, in the interest of justice, seek assistance of a legal expert as amicus curiae;

(h) simplify the rules of evidence and procedure so as to enable a Family Court to deal
effectively with a dispute;                                                                                                       ,

( i) provide for only one right of appeal which shall lie to the High Court. 

COMMENTS

Family Courts have-been established with the object that they should adopt a radii ally different approach than what is adopted in ordinary civil proceedings and, besides, for making reasonable efforts at settlement before commencement of the trial: Anil Bahal v. Manju A.I.R. 1989 All. 9: (1989) 1 Hindu L.R. 479: (1989) 1 D.M.C. 336.

(b) where the person aggrieved by an offence is the wife, complaint may be made on her behalf by her father, mother, brother, sister, or by her father’s or mother’s, brother or sister, and

(3) every offence under section 4-A shall be cognizable:

Provided that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under this Act or make any arrest therefor.”—Punjab Act 26 of 1976, S. 5 (w.e.f. 20-5-1976).

[West Bengal].—In its application to the State of West Bengal, in S. 7,—

(a) for the words and figures “Code of Criminal Procedure, 1898″, substitute “Code of Criminal Procedure, 1973″;

(b) for the words “Presidency Magistrate or a Magistrate of the first class”, wherever they occur, substitute “Metropolitan Magistrate or a Judicial Magistrate of the first class”; and

(c) in Cl. (b), for the words “one year from the date of the offence”, substitute “three years from the date of the offence”.—W.B. Act 35 of 1975, S. 5 (w.e.f. 23-9-1975).

²²[8. Offences to be cognizable for certain purposes and to be ^[non-bailable] and non-compoundable.—(1) The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to offences under this Act as if they were cognizable offences—

(a) for the purposes of investigation of such offences; and                  -

(b) for the purposes of matters other than—

(z) matters referred to in section 42 of that Code; and (it) the arrest of a person without a warrant or without an order of a Magistrate.

(2) Every offence under this Act shall be ²³[non-bailable] and non-compoundable.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 8, substitute the following section, namely:—

“8. Offences to be cognizable, non-bailable and non-compoundable.—Every offence under this Act shall be cognizable, non-bailable and non-compoundable.”—Bihar Act 4 of 1976, S. 5 (w.e.f. 20-1-1976).

[Himachal Pradesh].—In its application to the State of Himachal Pradesh, for S. 8, substitute the following section, namely:—

“8. Offences to be cognizable, non-bailable and non-compoundable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable, non-bailable and non-compoundable”.—H.P. Act 25 of 1976, S. 6 (w.e.f. 24-6-1976).

[Orissa].—In its application to the State of Orissa, in S. 8, for “every offence”, substitute “save as otherwise provided, every offence”.—Orissa Act 1 of 1976, S. 3 (w.e.f. 18-1-1976).

[Punjab].—In its application to the State of Punjab, for S. 8, substitute the following section, namely:—

“8. Offences to be bailable and non-compoundable.—Every offence under this Act shall be bailable and non-compoundable.”—Punjab Act 26 of 1976, S. 7 (w.e.f. 20-5-1976).

²⁴[8-A. Burden of proof in certain cases.—Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under these sections shall be on him.]

State Amendments—[Himachal Pradesh].—In its application to the State of Himachal Pradesh, for S. 8-A, substitute the following section, namely:—

22. Substituted by Act 63 of 1984, S. 7, for S. 8 (w.e.f. 2-10-1985).

23. Substituted by Act 43 of 1986, S. 7, for “bailable” (w.e.f. 19-11-1986).

24. Inserted by Act 43 of 1986, S. 8 (w.e.f. 19-11-1986).

“8-A. Cognizance of offences—No Court shall take cognizance of any offence under this Act except on a police report under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint made by a person aggrieved by the offence, as the case may be, within one year from the date of the commission of the offence:

Provided that no police officer of the rank lower than that of the Deputy Superintendent of Police shall investigate any case registered under this Act:

Provided further that no Court shall take cognizance of any offence under this Act except with the previous sanction of the District Magistrate, having jurisdiction in the area.”—H.P. Act39 of 1978,S. 6 (w.e.f. 4-12-1978).

[Punjab].—In its application to the State of Punjab, after S. 8, insert the following section, namely:—

“8-A. Institution of proceedings.—No prosecution shall be instituted against any person in respect of any offence committed under this Act without the previous sanction of the District Magistrate of such officer as the State Government may by special or general order appoint in this behalf .”—Punjab Act 26 of 1976, S. 7 (w.e.f. 20-5-1976).

²⁵[8-B. Dowry Prohibition Officers.—(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely:—

(a) to see that the provisions of this Act are complied with; (V) to prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry;

(c) to collect such evidence as may be necessary for the prosecution of persons committing offences under this Act; and

(d) to perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rules made under this Act.

(3) The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitations and conditions as maybe specified by rules made under this Act.

(4) The State Government may, for the purpose of advising and assisting Dowry Prohibition Officers in the efficient performance of their functions under this Act, appoint an Advisory Board consisting of not more than five social welfare workers (out of whom at least two shall be women) from the area in respect of which such Dowry Prohibition Officer exercises jurisdiction under sub-section (1).]

9. Power to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

²⁶[(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for—

(a) the form and manner in which, and the persons by whom, any list of presents referred to in sub-section (2) of section 3 shall be maintained and all other matters connected therewith; and

(b) the better co-ordination of policy and action with respect to the administration of this Act.]

25. Inserted by Act 43 of 1986, S. 8 (w.e.f. 19-11-1986).                                                                                             

26. Inserted by Act 63 of 1984, S. 8 (w.e.f. 2-10-1985).                                          

²⁷[(3)] Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or ²⁸[in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

State Amendments—[Himachal Pradesh].—In its application to the State of Himachal Pradesh, in S. 9 —

(a) after the words ” Central Government”, insert “or the State Government with the prior approval of the Central Government”;

(b) in sub-S. (2), after the words “every rule made” and before the words “under this section”, insert “by the Central Government”;

(c) after sub-S. (2), add the following sub-section, namely:—

“(3) Every rule made by the State Government under this section shall be laid, as soon as may be, after it is made, before the State Legislature while it is in session for a total period of not less than seven days, which may be comprised in one session or in two successive sessions and if before the expiry of the session in which it is so laid or the sessions immediately following, the Legislature requires any modification in the rule or desires that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule”.— H.P. Act 25 of 1976, S. 7 (w.e.f. 24-6-1976).

[Punjab].—In its application to the State of Punjab, in S. 9,—

(1) in sub-S. (1), after the words “Central Government”, insert “or the State Government”;

(it) in sub-S. (2), after the words “every rule made”, insert “by the Central Government”; and

(Hi) after sub-S. (2), add the following sub-section, namely:—

“(3) Every rule made under this section by the State Government shall be laid, as soon as may be, after it is made, before the House of the State Legislature while it is in session for a total period of ten days which may be comprised in one session or in two or more successive sessions, and, if before the expiry of the session in which it is so laid or the successive sessions aforesaid, the House agrees in making any modification in the rule or the House agrees that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”—Punjab Act 26 of 1976, S. 8 (w.e.f. 20-5-1976).

²⁹[10. Power of State Government to make rules.—(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for allor any of the following matters, namely:—

(«) the additional functions to be performed by the Dowry Prohibition Officers under sub-section (2) of section 8-B;

(b) limitations and conditions subject to which a Dowry Prohibition Officer may exercise his functions under sub-section (3) of section 8-B.

(3) Every rule made by the State Government under this section shall be laid as soon as may be after it is made before the State Legislature.]

27. Sub-S. (2) renumbered as sub-S. (3) thereof by Act 63 of 1984, S. 8 (w.e.f. 2-10-1985).

28. Substituted by Act 20 of 1983, S. 2 and Sch., for certain words (w.e.f. 15-3-1984).

29. Substituted by Act 43 of 1986, S. 9, for S. 10 (w.e.f. 19-11-1986).

 (iii) gives in the form of sagun at the time of thaka, betrothal or marriage, anything the value of which exceeds eleven rupees; or

(iv) gives to the parents or any other relation of a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage; or

(v) serves to the marriage party more than two principal meals; shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both.

Explanation.—In this section the expression “principal meal” means lunch or dinner.”— Punjab Act 26 of 1976, S. 4 (w.e.f. 20-5-1976).

[West Bengal].—In its application to the State of West Bengal, after S. 4, insert the following section, namely:—

“4-A. Penalty for depriving any party of the rights and privileges of marriage.—(1) If after the marriage, any party to the marriage with or without assistance of his parents or guardians deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which shall not be less than three months, but may extend to one year or with fine which shall not be less than two thousand rupees, but may extend to five thousand rupees, or with both.

(2) The provisions of this section shall be in addition to, and not in derogation of, any provisions on the subject contained in any other law for the time being in force.”—W.B. Act 35 of 1975, S. 5 (w.e.f. 23-9-1975).

Section 4-B

State Amendments—(Himachal Pradeshl—In its application to the State of Himachal Pradesh, after S. 4-A, insert the following section, namely:—

“4-B. Penalty for depriving any party of the rights and privileges of marriage.—(1) If after the marriage, any party to the marriage with or without assistance of any other person, deprives the other party of the rights and privileges of marriage or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.

(2) The provisions of this section shall be in addition to and not in derogation of, any provision on the subject contained in any other law for the time being in force.”— H.P. Act 25 of! 976, S. 4 (w.e.f. 24-6-1976).

[Punjab].—In its application to the State of Punjab, after S. 4-A, insert the following section, namely:—

“4-B. Penalty for depriving any party of rights and privileges of marriage.—Any party to the marriage who, after the marriage, deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party, for non-payment of dowry, and any person who assists such party in the commission of such offence, shall be punishable with imprisonment for a term which may extend to one year, and fine which may extend to five thousand rupees.”—Punjab Act 26 of 1976, S. 4 (w.e.f. 20-5-1976).

5. Agreement for giving or taking dowry to be void.—Any agreement for the giving or taking of dowry shall be void.

6. Dowry to be for the benefit of the wife or her heirs.—(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman—

(a) if the dowry was received before marriage/ within ¹³[three months] after the date of marriage; or

(b) If the dowry was received at the time of or after the marriage, within ¹³[three months] after the date of its receipt; or

(c) it the dowry was received when the woman was a minor, within .”[three months] after she has attained the age of eighteen years, arid pending such transfer, shall hold it in trust for the benefit of the woman.

13. Substituted by Act 63 of 1984, S. 5, for “one year” (w.e.f. 2-10-1985). 

¹⁴[(2) If any person fails to transfer any property as required by sub­section (1) within the time limit specified therefor_/ ¹⁵[or as required by sub­section (3)], he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine ¹⁶[which shall not be less than five thousand rupees, but which may extend to ten thousand rupees] or with both.]

(3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:

¹⁵[Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,—

(a) if she has no children, be transferred to her parents, or

(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.]

¹⁷[(3-A) Where a person convicted under sub-section-(2) for failure to transfer any property as required by sub-section (1) ¹⁸[or sub-section (3)] has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, ¹⁹[her heirs, parents or children], the Court shall, in addition to awarding punishment under that sub­section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, ¹⁹[her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be, ¹⁹[her heirs, parents or children].

(4) Nothing contained in this section shall affect the provisions of section 3 or section 4.

State Amendments—[Haryaria].—In its application to the State of Haryana, in sub-S. (2) of S. 6, for “or with fine which may extend to five thousand rupees, or with both”, substitute “and with fine which may extend to five thousand rupees”.—Haryana Act 38 of 1976, S. 3 (w.e.f. 11-8-1976).

Sections 6-A and 6-B

State Amendments—[Orissa].—In its application to the State of Orissa, after S. 6, insert the following sections, namely:—

“6-A. Penalty for denial of conjugal right by the husband.—(1) If any person denies conjugal rights to his wife on the ground that dowry has not been given or on the ground that the dowry given is insufficient, he shall be punishable with imprisonment which may extend to one year, or with fine which may extend to ten thousand rupees or with both.

(2) The Court trying an offence under this section may, at any stage of the proceedings, on the execution of a bond by the husband undertaking not to realise the dowry or any portion thereof as the case may be, and to allow conjugal rights to the wife, drop the proceedings.

(3) Any proceedings dropped under sub-section (2) shall revive if the Court is satisfied, or an application made in that behalf by the wife that the husband has failed to

14. Substituted by Act 63 of 1984, S. 5, for sub-S. (2) (w.e.f. 2-10-1985).                                                                         

15. Inserted by Act 43 of 1986, S. 5 (w.e.f. 19-11-1986).

16. Substituted by Act 43 of 1986, S. 5, for “which may extend to ten thousand rupees”
(w.e.f. 19-11-1986).                                                                                                                        

17. Inserted by Act 63 of 1984, S. 5 (w.e.f. 2-10-1985).                                                                                          

18. Inserted by Act 43 of 1986,8.5 (w.e.f. 19-11-1986).                                                                                              

19. Substituted by Act 63 of 1984, S. 5, for “her heirs” (w.e.f. 19-11-1986).

carry out the undertaking or has otherwise acted contrary to the terms of the bond, and thereupon the Court shall proceed with the case from the stage at which it was dropped:

Provided that no application under this sub-section shall be entertained if it is made after the expiry of three years from the date on which the proceedings were dropped.

(4) The Court may direct that the fine, if any, imposed under this section or such portion thereof as the Court deems proper, shall be paid to the wife as compensation.

6-E. Maintenance to be paid by husband on his conviction.—(1) On conviction of a person for an offence under section 6-A, the Court trying the offence may, on a claim made by his wife in that behalf within two months from the date of the order of conviction, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees, as the Court deems proper:

Provided that no such order shall be made without giving the parties concerned a reasonable opportunity of being heard.

(2) In determining the monthly allowance under this section regard shall be had to—

(a) the position and status of the parties;       (b) the reasonable wants of the wife;

(c) the value of the wife’s property and any income derived from such property, or from the wife’s earnings or from any other source; and

(d) the amount of compensation awarded under section 6-A.

(3) The maintenance allowance so ordered shall be a charge on the property, if any, of the husband, whether acquired before or after the date of the order.

(4) Where a complaint has been filed by the wife for an offence under section 6-A, the husband shall not transfer any of his assets till—

(a) where no claim for maintenance has been preferred under this section, the date of expiry of the period of limitation specified in sub-section (1) for filing such claim; and

(b) where such claim is preferred, the disposal of the claim.

(5) Notwithstanding anything contained in any other law, the wife may enforce any claim for maintenance against any property transferred by the husband in contravention of the provisions of sub-section (4) as if such transfer were null and void.

(6) The provisions contained in sub-section (3) of section 125 of the Code of Criminal Procedure, 1973 shall, so far as may be, apply to the recovery of the maintenance allowance ordered under this section.”—Orissa Act 1 of 1976, S. 2 (w.e.f. 18-1-1976).

²⁰[7. Cognizance of offences.—(1) Notwithstanding anything contained in the Code of Criminal Procedure., 1973 (2 of1974),—

(«) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of an offence under this Act except upon—

(f) its own knowledge or a police report of the facts which constitute such offence, or

(if) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;

(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.

Explanation.—For the purposes of this sub-section, "recognized welfare institution or organisation" means a social welfare institution or organisation recognized in this behalf by the central or State Government.

20. Substituted by Act 63 of 1984, S. 6, for S. 7 (w.e.f. 2-10-1985).

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.]

²¹[(3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 7, substitute the following section, namely:—

“7. Trial of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.”—Bihar Act 4 of 1976,S.4(w.e.f.20-l-1976).

[Haryana].—In its application to the State of Haryana, for S. 7, substitute the following section, namely:—

“7. Cognizance of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) no Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of any such offence except on a complaint made by any party to the marriage or her father, mother or brother or a Gazetted Officer specially authorised by the State Government in this behalf, within a period of one year from the date of the marriage;

(c) no Court shall take cognizance of any such offence except with the previous sanction of the District Magistrate or of such officer as the State Government may, by general or special order, specify in this behalf;

(d) no enquiry shall be got made through any Police Officer below the rank of a Deputy Superintendent of Police;

(e) no woman shall be called to a Police Station for the purpose of an enquiry regarding any offence under this Act.”—Haryana Act 38 of 1976, S. 4 (w.e.f. 11 -8-1976).

[Himachal PradeshJ.—In its application to the State of Himachal Pradesh, for S. 7, substitute the following section, namely:—

"7. Trial of offences.—[*] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act.

[*] No Court shall take cognizance of any offence under this Act, except that of offence under section 4-B, except on a police report or complaint made within one year of the marriage.”—H.P. Act 25 of 1976, S. 5 (w.e.f. 24-6-1976) as amended by H.P. Act 39 of 1978, S. 5, (w.e.f. 4-12-1978).

[Punjab],—In its application to the State of Punjab, for S. 7, substitute the following section, namely:—

“7. Cognizance of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(1) No Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act;

(2) No Court shall take cognizance of any offence punishable under sections 3, 4
and 4-B, except upon a complaint made within one year from the date of the offence, by
some person aggrieved by the of fence:                                                                                                     
Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public some other person may, with the leave of the Court, make a complaint on his or her behalf;

21. Inserted by Act 43 of 1986, S. 6 (w.e.f. 19-11-1986).

Introducing a fresh aspect towards the lively debate on legitimacy of the ‘live in’ relationship as well as legitimacy of kids given birth to out of this kind of relationship, the Top court has decided the fact that such children are not necessarily unlawful. The Supreme Court has additionally held that such kids possess a right to inherit the properties left behind by one of the partners in this kind of relationship, reports dnaindia

“If a man as well as a lady are living under the same roof and living together for quite a few years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate,” said a bench of Justices P Sathasivam and BS Chauhan on Friday. The bench said the law presumes in favour of marriage and against concubine.

Earlier, Delhi high court had said that the alliance is like “walk- in and walk-out without strings attached to it.’’ But the Supreme Court has held that the relationship is presumed to be marriage in the eye of law if the partners keep the bonding alive for a long time.

The judgment that may have a strong bearing on several petitions raising the dispute on legitimacy of children born out of the live-in association among others was delivered in an appeal filed by one Madan Mohan Singh, challenging the judgments of Allahabad High Court and the two land consolidation tribunals which had allowed the right on the estate left behind by one Chandra Deo Singh, to the two sons and four daughters of Chandra Deo.

Madan Mohan said he solely inherits the property left behind by Chandra Deo, but Rajni Kant, his brother Anjani Kumar and four sisters contested the claim by saying since they were born out of the decade-long live-in relationship between Chandra Deo and their mother Shakuntala, they were the inheritors of the landed property.

or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II.—The expression “valuable securities” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

(«’) “marriage expenses” shall include expenses incurred directly or indirectly at or before the marriage on—

(«) Thakka, Sagai, Tikka, Shagun and Milni ceremonies;

(b) the gifts made by one party to a marriage to the other party to the marriage or by the parents, grand-parents and brothers of either party to a marriage, to either party to the marriage or the blood relations thereof;

(c) illumination, food and the arrangements for serving food to the members of the marriage party and other expenses incidental thereto.

Explanation.—For the removal of doubts, it is hereby declared that any gifts made by a person other than those specified in sub-clause (b), at the time of marriage to either party to the marriage shall not be deemed to be marriage expenses”.—Haryana Act 38 of 1976, S. 2 (w.e.f. 11-8-1976).

                                          COMMENTS                                                                                                                                                

Demand of dowry after three years of happy life certainly is not relating to the marriage as it neither relates to the one nor agreed to be given at or before or after the marriage: Shanmughavelu v. State2004 Cr.L.J. 2731 (Mad.).

Any property or valuable security given or agreed to be given comes within the purview of “dowry” on three occasions in which any property or valuable security comes within its purview. They are: (i) before the marriage, (it) at the time of marriage, and (Hi) “at any time” after the marriage. The third occasion may appear to be an unending period, but the crucial words are “in connection with the marriage of the parties”. This means, giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties: Public Prosecutor, A.P. High Court v. Nese filakara Sreeramulu 2004 Cr.L.J. 1629 (Andh. Pra.) (F.B.).

Definition of dowry in £t-2 of the Dowry Prohibition Act (as amended by Act 43 of 1986) includes not only the period before and at the marriage but also the period subsequent to the marriage. Therefore, the argument that there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring in S. 2 of the Dowry Prohibition Act, and in the absence of any such evidence it would not constitute a dowry is not tenable: State ofAndhra Pradesh v. Raj GopalAsawa A.I.R. 2004 S.C. 1933: (2004) 4 S.C.C 470:2004 Cr.L.J. 1791. See also Pawan Kumarv. State of Haryana (1998) 3 S.C.C. 309.

“Dowry” definition is to be interpreted with the other provisions of the Act including S. 3, which refers to giving or taking dowry and S. 4 which deals with a penalty for demanding dowry, under the Dowry Prohibition Act and Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry: State of Andhra Pradesh v. Raj GopalAsawa A.I.R. 2004 S.C. 1933: (2004) 4 S.C.C. 470:2004 Cr.L.J. 1791.

What is the periphery of the word “dowry” came to be considered by the Supreme Court in the decision in Pawan Kumar v. State ofHaryana (1998) 3 S.C.C. 309 and in the teeth of the extended definition and meaning of the term as brought about by the Dowry Prohibition (Amendment) Act, 1986 (Central Act 43 of 1986) w.e.f. 19-11-1986 the earlier meaning confining and limiting the same to the time at or before the marriage got enlarged and extended even to the period after the marriage and that there be no need to also show any agreement for the payment of such dowry to make it punishable as an offence: Vidhya Devi v. State ofHaryana A. I. R 2004 S.C. 1757: (2004) 9 S.C.C. 476.

3. Petwaty for giving or taking dowry.—⁶[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable ⁷[with imprisonment for a term which shall not be less than ⁸[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than ⁹[five years.]

^w[(2) Nothing in sub-section (1) shall apply to, or in relation to,—

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

(b) presents which are given at the time of a  marriage to the bridegroom (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 3, substitute the following section, namely:—

“3. Penalty for giving or taking dowry.-—If any person after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees.”—Bihar Act 4 of 1976, S. 2 (w.e.f. 20-1-1976).

[Haryanal.—In its application to the State of Haryana, for S. 3, substitute the following section, namely:—

"3. Bar of certain acts.—No person shall—

(a) give or take or abet the giving or taking of dowry;

(b) demand, directly or indirectly from the parents or guardians of a bride or bridegroom, as the case may be, any dowry;

(c) incur marriage expenses the aggregate value whereof exceeds five thousand rupees;

(d) display any gifts made at or before the marriage in the form of cash ornaments, clothes or other articles;

(e) take or carry in excess of—                                                                          

(i) twenty-five members of the marriage party; and

(if) eleven members of the band;

(/) deny conjugal rights to his wife on the ground that dowry has not been given or the dowry given is insufficient."—Haryana Act 38 of 1976, S. 2 (w.e.f. 11-8-1976).

6. S. 3 renumbered as sub-S. (1) thereof by Act 63 of 1984, S. 3 (w.e.f. 2-10-1985).

7. Substituted by Act 63 of 1984, S. 3, for "with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both" (w.e.f. 2-10-1985).

8. Substituted by Act 43 of 1986, S. 3, for "six months, but which may extend to two years, and with fine which may extend to ten thousand rupees or the amount of the value of such dowry, whichever is more" (w.e.f. 19-11-1986).

9. Substituted by Act 43 of 1986, S. 3, for "six months" (w.e.f. 19-11-1986).

10. Inserted by Act 63 of 1984, S.3 (w.e.f. 2-10-1985).       .

[Himachal Pradesh].—In its application to the State of Himachal Pradesh, for S. 3, substitute the following section, namely:—

“3. Penalty for giving or taking dowry.—If any person gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.”—H.P. Act 25 of 1976, S. 2 (w.e.f. 24-6-1976).

(Punjab].—In its application to the State of Punjab, in S. 3, for the words “six months or with fine which may extend to five thousand rupees”, substitute “one year, and fine which may extend to five thousand rupees”.—Punjab Act 26 of 1976, S. 2 (w.e.f.20-5-1976).

[West Bengal].—In its application to the State of West Bengal, in S. 3, for the words “which may extend to six months, or with fine which may extend to five thousand rupees”, substitute “which shall not be less than three months, but may extend to three years or with fine which shall not be less than two thousand rupees, but may extend to ten thousand rupees”.—W.B. Act 35 of 1975, S. 2 (w.e.f. 23-9-1975).

COMMENTS

This deep-rooted social evil requires to be controlled not only by effective implementation of the Dowry Prohibition Act, 1961, but also by the Society. The Society has to find out ways and means of controlling and combating this menace of receipt and payment of dowry. It appears that instead of controlling payment and receipt of dowry in one or other form, it is increasing even in educated class. May be that, it is increasing because of accumulation of unaccounted wealth with few and others having less means follow the same out of compulsion: Vikas v. State ofRajasthan 2002 Cr.L.J. 3760 (S.C.).

Ss. 3 and 4 of the Dowry Prohibition Act make out independent offences, but in the instant case it was the demand for dowry coupled with harassment which constitutes the basis of the prosecution case. Once the main part of the charge under S. 304-B was not found established, it was not possible to record conviction under Ss. 3 and 4 of the Dowry Prohibition Act: SakhiMandalaniv. State ofBihar (1999) 5 S.C.C. 705:1999 S.C.C. (Cr.) 1039.

ⁿ[4. Penalty for demanding dowry.—If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]

State Amendments—[Bihar].—In its application to the State of Bihar, for S. 4, substitute the following section, namely:—

“4. Penalty for demanding dowry.—If any person, after the commencement of this Act, demands directly or indirectly from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees:

Provided that no Court shall take cognizance of any offence under this section except with the previous sanction of the State Government or of such officer as the State Government, may, by general or special order/specify in this behalf.”—Bihar Act 4 of 1976, S. 3 (w.e.f. 20-1-1976).

IHaryana].—In its application to the State of Haryana, for S. 4, substitute the following section, namely:—

“4. Penalty.—(1) If any person contravenes any of the provisions of section 3, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees.

(2) The Court trying an offence under clause (/) of section 3 relating to conjugal rights may at any stage of the proceedings, on the execution of a bond by the husband

11. Substituted by Act 63 of 1984, S. 4, for S. 4 (w.e.f. 2-10-1985).

undertaking not to demand dowry and to allow conjugal rights to the wife, drop the proceedings.

(3) Any proceedings dropped under sub-section (2) shall revive if the Court is satisfied, on an application made by the wife in this behalf, that the husband has failed to carry out the undertaking or has otherwise acted contrary to the terms of the bond, and thereupon the Court shall proceed with the case from the stage at which it was dropped:

Provided that no application under this sub-section shall be entertained if it is made after the expiry of a period of three years from the date on which the proceedings were dropped.

(4) The Court may direct that the fine, if any, imposed for the contravention of clause (/) of section 3, or such portion thereof, as the Court may deem proper, shall be paid to the wife.”—Haryana Act 38 of 1976, S. 2(w.e.f. 11-8-1976).

[Himachal Pradeshl.—In its application to the State of Himachal Pradesh, for S. 4, substitute the following section, namely:—

"4. Penalty for demanding dowry.—If any person demands, directly or indirectly, from the parents or guardian of a bride or bridegroom or from any other person, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees."—H.P. Act 25 of 1976, S. 3 (w.e.f. 24-6-1976).

¹²[4-A. Ban on advertisement.—If any person,—

(a) offers, through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relative;

(fc) prints or publishes or circulates any advertisement referred to clause (a),

he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months.]

State-Amendments—[Himachal Pradesh].—In its application to the State of Himachal Pradesh, after S. 4, insert the following section, namely:—

“4-A. Bar of certain acts.—Any person who—

.’.,”., (i) displays any presents made at the time of marriage in the form of cash, ornaments, clothes or other articles; or

(if) gives in the form of “shagun” at the time of “thaka”, betrothal or “tikka” anything the value of which exceeds eleven rupees; or

(in) gives to the parents or any other relation of a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees, or with both.”—H.P. Act 25 of 1976, S. 4 (w.e.f. 24-6-1976).

1 Punjab).—In its application to the State of Punjab, after S. 4, insert the following section, namely:—

“4-A. Bar of certain acts.—Any person who——

(i) displays any presents made at the time of such marriage in the form of cash, ornaments, clothes or other articles; or

(ii) takes in a marriage party more than twenty-five persons exclusive of minors and the members of the band; or

12. Inserted by Act 43 of 1986, S. 4 (w.e.f. 19-11-1986).

THE DOWRY PROHIBITION ACT, 1961¹ (28 OF 1961)

[20th May, 1961] An Act to prohibit the giving or taking of dowry.

be it enacted by Parliament in the Twelfth Year of the Republic of India as follows:—

Statement of Objects and Reasons.—The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if given does enure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2,000. Such a provision appears to be necessary to make the law workable.

Amendment Act 63 of 1984—Statement of Objects and Reasons.—The evil of dowry system has been a matter of serious concern to every one in view of its ever-increasing and disturbing proportions. The legislation on the subject enacted by Parliament, i.e., the Dowry Prohibition Act, 1961 and the far-reaching amendments which have been made to the Act by a number of States during the seventies have not succeeded in containing the evil. As pointed out by the Committee on the Status of Women in India, the educated youth is grossly insensitive to the evil of dowry and unashamedly contributes to its perpetuation. Government has been making various efforts to deal with the problem. In addition to issuing instructions to the State Governments and Union territory administrations with regard to the making of thorough and compulsory investigations into cases of dowry deaths and stepping up anti-dowry publicity. Government referred the whole matter for consideration by a Joint Committee of both the Houses of Parliament. The Committee went into the whole matter in great depth and its proceedings have helped in no small measure in focussing the attention of the public and rousing the consciousness of the public against this evil.

2. The following observations made by late Pandit Jawaharlal Nehru which have been quoted by the Committee indicate trie role which legislation can play in dealing with the evil:—

“Legislation cannot by itself normally solve deep-rooted social problems. One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape.”

The recommendations made by the Joint Committee of the Houses to examine the question of working of the Dowry Prohibition Act, 1961 have been considered keeping in view these observations and after taking into consideration the comments received on the Report from the State Governments, Union territory administrations and the different administrative Ministries of the Union concerned with the matter. One of the important recommendations of the Committee for dealing with cruelty to a married woman by the husband or the relatives of the husband on the ground of non-receipt of dowry or insufficient dowry has already been given effect to by the Criminal Law (Second Amendment) Act, 1983. This Act amended, inter alia, the Indian Penal Code to include

1. The Act has been extended to (I) Dadra and Nagar Haveli by Regulation 6 of 1963 and (2) Pondicherry by Act 26 of 1968.

therein a provision for punishment for cruelty to married women and was aimed at dealing directly with the problem of dowry suicides and dowry deaths.

3. The Joint Committee has recommended that the definition of “dowry” contained in section 2 of the 1961 Act should be modified by omitting the expression “as consideration for the marriage” used therein on the ground that it is well nigh impossible to prove that anything given were a consideration for the marriage for the obvious and simple reason that the giver i.e., the parents who are usually the victims would be reluctant and unwilling to set the law in motion. The omission of the words “as consideration for the marriage” would make the definition not only wide but also unworkable, for, if these words are omitted, anything given, whether before or after or at the time of marriage by any one, may amount to dowry. The Supreme Court has also placed a liberal construction on the word “dowry” as used in section 4 of the Dowry Prohibition Act, 1961, relating to demanding dowry. In the circumstances, it is proposed to substitute the words “in connection with the marriage” for the words “as consideration for the marriage” instead of omitting those words.

4. Section 3 of the Dowry Prohibition Act relating to the offences of giving or taking of dowry is being amended in accordance with the recommendations of the joint Committee to make the punishment for the offence more stringent. All presents given at the time of marriage to the bride and certain types of presents given at the time of marriage to the bridegroom are proposed to be excluded from the purview of the offences under the section. However, the recommendations of the Committee for exempting the giver of dowry from punishment is not being given effect to as such exemption may only prove to be counter­productive.

5. Section 4 of the Dowry Prohibition Act relating to penalty for demanding dowry is proposed to be amended to make the punishment thereunder more stringent on the lines recommended by the Joint Committee.

6. Section 6 of the Act is being amended in accordance with the recommendation of the Joint Committee, to reduce the time limit within which dowry received in connection with the marriage of a woman by any other person should be restored to the woman from one year to three months. Likewise, the punishment for failure to restore such dowry within the said time limit is being made more stringent on the lines recommended by the Committee. Under a special provision which is being included in section 6 where a person is convicted for failure to restore the dowry to the woman concerned within the period specified in the section, the Court may, in addition to awarding punishment, issue a direction requiring him to restore the property to the woman within the period specified in the direction. In case of non-compliance with the” direction, the value of the property would be recoverable from such person as if it were a fine and the amount so recovered may be paid to the woman concerned or, as the case may be her heirs.

7. Sections 7 and 8 of the Dowry Prohibition Act are proposed to be amended to give effect to the recommendations of the Committee as to cognizance of offences under the Act and making offences under the Act cognizable.

Amendment Act 43 of 1986—Statement of Objects and Reasons.—The Dowry Prohibition Act, 1961 was recently amended by the Dowry Prohibition (Amendment) Act, 1984 to give effect to certain recommendations of the Joint Committee of the Houses of Parliament to examine the question of the working of the Dowry Prohibition Act, 1961 and to make the provisions of the Act more stringent and effective. Although the Dowry Prohibition (Amendment) Act, 1984 was an improvement on the existing legislation, opinions have been expressed by representatives from women’s voluntary organisations and others to the effect that the amendments made are still inadequate and the Act needs to be further amend ed.

2. It is, therefore, proposed to further amend the Dowry Prohibition Act, 1961 to make provisions therein further stringent and effective. The salient features of the Bill are:—

(«) The minimum punishment for taking or abetting the taking of dowry under section 3 of the Act has been raised to five years and a fine of rupees fifteen thousand.

(b) The burden of proving that there was no demand for dowry will be on the person who takes or abets the taking of dowry.                           

, i he statement made by the person aggrieved by the offence shall not subject him to prosecution under the Act.

(d) Any advertisement in any newspaper, periodical journal or any other media by any person offering any share in his property or any money in consideration of the marriage of his son or daughter is proposed to be banned and the person giving such advertisement and the printer or publisher of such advertisement will be liable for punishment with imprisonment of six months to five years or with fine up to fifteen thousand rupees.

(e) Offences under the Act are proposed to be made non-bailable.

(/) Provision has also been made for the appointment of Dowry Prohibition Officers by the State Governments for the effective implementation of the Act. The Dowry Prohibition Officers will be assisted by the Advisory Boards consisting of not more than five social welfare workers (out of whom at least two shall be women).

(g) A new offence of “dowry death” is proposed to be included in the Indian Penal Code and the necessary consequential amendments in the Code of Criminal Procedure, 1973 and in the Indian Evidence Act, 1872 have also been proposed.

1. Short title, extent and commencement.—(1) This Act may be called the dowry prohibition act, 1961.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date² as the Central Government may, by notification in the Official Gazette, appoint.

2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before ³[or any time after the marriage] ⁴[in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. sr***i

Explanation II.—The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

State Amendment—[Haryana].—In   its application to the State of Haryana, for S. 2, substitute the following section, namely:—

“2. Definitions.—In this Act, unless the context requires,—

(;’) “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case, of persons to whom the Muslim Personal Law (Shnriat) applies.

Explanation 1.—For the removal of doubts it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes

2. Brought into force on 1-7-1961.

3. Substituted by Act 43 of 1986, S. 2, for “or after the marriage” (w.e.f. 19-11-1986).

4. Substituted by Act 63 of 1984, S. 2, for “as consideration for the marriage of the said parties, but does not include” (w.e.f. 2-10-1985).

5. Explanation I omitted by Act 63 of 1984, S. 2 (w.e.f. 2-10-1985).

Second marriage to be proved.—Validity of second marriage, is required to be proved by the prosecution by satisfactory evidence: S. Nagalingam v. Sivagami (2001) 7 S.C.C. 487, In a charge of bigamy the accused-husband admitted second marriage. But the Magistrate having found no satisfactory proof of the valid second marriage by performing all religious formalities has acquitted the accused of the charge of bigamy on the ground that the validity of second marriage is not established. The High Court set aside the acquittal and CortvicfeiJ the accused on the basis of his admission that he contracted second marriage. The Supreme Court in appeal by special leave has set aside the order of the High Court. It is held-that admission of the accused would not necessarily prove that he had taken the second wife after performing due ceremonies and unless the same is proved by prosecution the charge under S. 494,1.P.Code is not established: P. Satyanarayana v. P. Mallaiah (19%) 6 S.C.C. 122: 1996 S.C.C. (Cr.) 1120. However, when the testimony of the eye-witnesses regarding performance of second marriage is natural, cogent and convincing and the factum of second marriage is established also from entries of contents of Hindu Marriage Registrar, the factum of second marriage have been established and the accused is guilty of bigamy. But proof of second marriage in accordance with religious ceremonies and rites of the parties is not necessary in view of S. 7-A of the Hindu Marriage Act when marriage is registered: Manjula v. Mani 1998 Cr.L.J. 1476 (Mad.).

Offence under section 17 of Hindu Marriage Act.—S. 17 of the Hindu Marriage Act lays down that any marriage between two Hindus solemnized after the commencement of the Act if at the date such marriage either party has a spouse living would attract S. 494 and S. 495,1.P.Code. But the word “solemnized” means that the marriage is solemnized with proper ceremonies and induce form. So in order to attract S. 17 of the Hindu Marriage Act the alleged second marriage shall be a valid marriage under the Hindu “law. Mere going through certain ceremonies is not enough when the essential ceremonies were not performed: Bhaurao v. State A.I.R. 1965 S.C. 1564. It must be marriage valid in form: Subir v. State (1991) 2 Cal.L.J. 71. Second marriage by a Hindu male prior to the enforcement of Hindu Marriage Act is no offence: Jagdish Chandra Dixit v. Rabindra Dixit 1991 Cr.L.J. 1697 (All.). Second marriage of Hindu husband after his conversion to Islam is void marriage in term of S. 494, I.P.Code. It is violative of justice, equity and good conscience and also violative of rules of natural justice: Sarla Mudgal, President, Kalyani v. Union of India A.I.R. 1995S.C. 1531: (1995) 3 S.C.C 635.

Paternity test in a bigamy case.—When the first wife filed a complaint against the husband and others under Ss. 494 and 109, I.P.Code, the alleged second marriage and the paternity of the child had been disputed by the accused person. The complainant prayed for blood te’st of the accused husband, the alleged second wife and the child. The trial judge rejected the prayer. In revision the learned Judge of Madras High Court upheld the order on taking the view that it is for complainant to prove only that during the subsistence of the first marriage, second marriage took place and essential ceremonies were performed. So the paternity test is not necessary to bring home the charge: Gomathi v. Vijayaraghavan 1995 Cr.L.J. 81 (Mad.).

Complaint by person aggrieved.—In view of S. 198, Cr.P.Code no cognizance for the offence under S. 494 or S. 495, I.P.Code can be taken by the Magistrate except upon a complaint by the person aggrieved. This is mandatory: G. Narasitnan v. T.V. Chokappa A.I.R. 1972 S.C. 2669.

²[CHAPTER XX-A                                                                                                                           

OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND 498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

2. Chap. XX-A inserted by Act 46 of 1983,8.2.                                         

Explanation.—For the purpose of this section, "cruelty "means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. ]

COMMENTS                                       

Cruelty against married woman by husband or his relatives.—To attract the offence under S. 498-A, I.P.Code it must be established that the cruelty or harassment to wife was to force her to cause bodily injury to herself or to commit suicide or the harassment was to compel her to fulfil illegal demand for dowry. However, it is not every type of harassment or cruelty that attracts this section: Sarla v. State 1990 Cr.L.J. 407 (Bom.). Harassment for dowry is also cruelty. When repeated demands for dowry articles and money on newly married wife and on her parents had been made and the wife stated in his dying declaration about much demands after her marriage till her death the husband and mother-in-law are guilty under S. 498-A: WazirChandv. State AIR. 1989 S.C. 376:1989 Cr.L.J. 809. The mother-in-law of the deceased told the married wife that she was a woman of evil luck and had swallowed her baby and she should commit suicide. The husband also physically assaulted her. The deceased was subjected to abuses, humiliation and mental torture from the beginning of the married wife which forced her to commit suicide. The offence under S. 498-A, I.P.Code by husband and mother-in-law is established: State of W.B. v. Orilal Jaiswal (1994) 1 S.C.C. 73: A.I.R. 1994 S.C. 1418:1994 Cr.L.J. 2104.

In any event the willful act or conduct ought to be the proximate cause in order to bring home the charge under S. 498-A and not de hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under S. 498-A. The legislative intent is clear enough to indicate in particular reference to Explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of Explanation (b). The letters by itself though may depict a reprehensible conduct, would not, however, bring home the charge of S. 498-A against the accused. Acquittal of a charge under S. 306, though not by itself a ground for acquittal under S. 498-A, but some cogent evidence is required to bring home the charge of S. 498-A as well, without which the charge cannot be said to be maintained: Girdhar Shankar Tawade v State of Maharashtra A.I.R. 2002 S.C. 2078: (2002) 5 S.C.C. 177: J.T. (2002) 4 S.C. 357:2002 Cr.L.J. 2814.

For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt: Kans Raj v. State of Punjab 2000 Cr.L.J. 2993 (S.C.).

Section 498-A vis-a-vis section 304-B, I.P.Code.—S. 498-A and S. 304-B, I.P.Code are not mutually exclusive. These provisions deal with two distinct offences. Even if cruelty defined in the Explanation to S. 498-A, I.P.Code will be the same for the purpose of S. 304-B, I.P.Code, yet under S. 498-A cruelty itself if punishable. But under S. 304-B it is the dowry death which is punishable and such death should have occurred within seven years of the marriage. But no such period is mentioned is S. 498-A. Moreover, a person charged under S. 304-B can be convicted under S. 498-A without the charge being there, if such a case is made out. However, from the point of view of practice and procedure and to avoid technical defects charges under both the sections should be framed. But on convicting a person under S. 405-B, LP.Code which is a major offence, no separate sentence need not be passed under S. 498-A, LP.Code: Shanti v. State A.I.R. 1991 S.C. 1226:1991 Cr.L.J. 1713; Keshab v. State 1995 Cr. L.J.I 74 (Ori.).

Explanation to S. 304-B refers to dowry “as having the same meaning as in S. 2 of the Act”, the question is: what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring therein, and in the absence of any such evidence, it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage: State of Andhra Pradeshv. Raj Gopal Asawa A.I.R. 2004S.C 1933: (2004) 4S.C.C. 470:2004Cr.L.J. 1791.

Though the death of the deceased was caused by the burns within seven years of marriage yet soon before her death she was not subjected to cruelly or harassed by the appellants for or in connection with the demand of dowry, no presumption could be drawn under S. 113-B of the Evidence Act against the appellants: Chtmdra Devi v. State ofRajasthan 2002 Cr.L.J. 1075 (Raj.).

When there is no satisfactory proof that soon before the death the wife was subjected to cruelty and harassment for or in connection with demand for dowry, the charge under S. 304-B, l.P.Code cannot be established. But when there is overwhelming evidence as to ill-treatment, the accused must be held guilty under S. 498-A, l.P.Code: Sham Lal v. State A.l.R. 1997 S.C. 1873: 1997 Cr.L.J. 1927. When the suicide of the wife was not due to any ill-treatment or harassment for or in connection with demand for dowry but for other factors including cruelty of the husband, even though offence of dowry death is not proved, the accused is guilty of S. 498-A, l.P.Code: Pyare Lal v. State (1997) 11 S.C.C. 552.

When in the instant case the charge of murder of wife by the accused husband and father-in-law could not be established and for the unnatural death of wife the accused persons cannot be prosecuted under S. 304-B for the unnatural death in the well behind the house of the in-laws, yet the evidence adduced has clearly established that the wife was subjected to cruel treatment by the accused in connection with dowry and for other causes. So, the Supreme Court has held that even though no charge was framed against the accused-person, they can be convicted under S. 498-A, l.P.Code: Balaram Prasad Agrawal v. State 1997 Cr.L.J. 1640 (S.C.). However, when the death of the accused mother and her nine month old child by falling into well was not proved to be suicidal and post-mortem report gave the opinion that the death was accidental and there was no evidence that the deceased-mother was subjected to cruelty and harassment in connection with dowry, neither the charge under S. 304-B nor under S. 498-A, l.P.Code can be established against the accused-husband and in-laws of the deceased: Niranjan v. State 1998 Cr.L.J. 630 (Ori.).

Sections 498-A and 306 are independent and constitute different offences.—Ss. 498-A and 306, l.P.Code are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under S. 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under S. 498-A, l.P.Code, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the wo man concerned: Ramesh Kumar v. State ofChhatisgarh (2001) 9S.C.C. 618.

Offence under section 498-A, whether or not committed—Illustrative cases.—(1) When the witnesses testified that the deceased was harassed by accused-husband for not complying with unlawful demands and the statement in the diary made by the wife corroborated it, the offence under S. 498-A, l.P.Code against the husband is proved: Alamuri v. State 1995 Cr.L.J. 2127 (Andh. Pra.).

(2) The husband beat his wife but there was reconciliation between them and thereafter both were living together. During her stay with her parents immediately before her death she did not complain of any ill-treatment. So neither the offence under S. 304-B nor under S. 498-A, l.P.Code is proved: Keshabv. State 1995 Cr.L.J. 174 (Ori.).

(3) When the parents of the deceased-wife voluntarily gave dining table but the accused-husband had staled that he would have preferred cash. This would not amount to demand for dowry. The evidence regarding cruelty by the accused is also not reliable. The wife also did not implicate her husband in her dying declaration. No offence under S. 498-A is proved: S. Abboy Naidu v. R. Sundararajan 1994 Cr.L.J. 641 (Mad.).

(4) But the harassment, ill-treatment and torture by the husband and the mother-in-law due to non-fulfilment of demand of dowry having been established, the offence under S. 498-A, l.P.Code has been proved against them: P. Krishna Murthy v. State 1994 Cr.L.J. 506 (Andh. Pra.).

(5) The husband disowned the paternity of the child born and expected to be born soon. He also drove the wife from the matrimonial house during pregnancy alleging false and baseless charges. The acts amount to cruelty:  Bai KhadijMbi Umaraliya Bibi v. HusenYusufl994 Cr.L.J. (N.O.C.) 198 (Guj.).

(6) The wife was subjected to harassment and cruelty continuously with demand of dowry and on the ground of being barren, the offence under S. 498-A is established: P.P. Raov. StateofA.P. 1994Cr.L.J. 2632 (Andh. Pra.).

(7) Evidence on record showed that the complainant was harassed by the accused-husband right from the date of marriage with a view to coerce her to meet unlawful demand for dowry. The complainant’s evidence is corroborated by the evidence of her father. So the charge against the husband under S. 498-A, I.P.Code is clearly established: Boopathyv. State 1998 Cr.L.J. 2405 (Mad.).

(8) There was quarrel between the wife and husband only a day before her death. The wife was repeatedly taunted, mal-treated and mentally tortured right from the very date of marriage. The torture led the deceased to commit suicide. The accused can be convicted both under S. 304-B and S. 498-A, IP.Code: Pawan Kumar v. State (1998) 3 S.C.C. 309: 1998 Cr.L.J. 1144.

(9).The wife died by burns within 7 years of marriage. Evidence on record showed that the death was not accidental. But prosecution could not prove that soon before her death deceased was subjected to cruelty or harassment in connection with demand for dowry. But the fact that ill-treatment was made out was established. So even if the accused cannot be convicted under S. 304-B, I.P.Code but he can be convicted under S. 498-A, l.P.Code.Rameahv. State 1998 Cr.L.J. 165(P.&H).

(10) The charge of murder of the wife by the husband and his relations is not proved. But evidence on record was there that there was cruelty by the parents-in-law leading to the inference that the wife committed self-immolation as she was unable to bear the cruelty. There being no evidence of harassment on account of demand of dowry, the conviction of the accused person under S. 302/34 was converted by Supreme Court to one under S. 498-A,l.P.Code:KanchyKomurammav. State 1996 S.C.C. (Cr.) 31: (1995)4(Supp.)S.C.C 118.

(11) The wife was murdered in her bedroom and the dead body was burnt in that very room and there is evidence that the wife was subjected to cruelty and harassment for or in connection with dowry. The charge under S. 302, S. 201 and S. 498-A, I.P.Code have been established. The acquittal by High Court has been set aside by Supreme Court: State ofU.P. v. Ramesh A.I.R. 1996 S.C. 2766:1996 Cr.L.J. 4002.

(12) A charge that the accused was friendly with one girl is only in the form of a suggestion and said girl, who was even cited as a witness was not examined, held, that cannot be an aspect of cruelty: State v. K. Sridhar2000 Cr.L.J. 328 (Karn.) (D.B.).

(13) The evidence on record is consistent with the allegations made by the deceased in her dying declaration in respect of the conduct of the accused that he was in the habit of coming home in a drunken state and abuse and beat her. On this evidence, there is no reason to discard the dying declaration of the deceased on the aspect that the accused used to get drunk and beat her and abuse her consistently. These acts attributed to the accused constitute cruelty within the meaning of S. 498-A, I.P.Code: Bommidi Rajamallu v. State of Andhra Pradesh 2001 Cr.L.J. 1319 (Andh. Pra.).

Constitutional validity of section 498-A.—The husband and the relatives of the husband subjecting a married woman to cruelty punishable under S. 498-A form a class apart by themselves. So there is reasonable classification. S. 498-A, I.P.Code is, therefore, not arbitrary and it is not violative of Art. 14 of the Constitution: Krishan Lal v. Union of India 1994 Cr.L.J. 3472 (P.&H.) (F.B.).

Section 498-A, if retrospective.—It is not retrospective in operation: Renu v. State 1991 Cr.L.J. 2049 (P.&H.); Prasanna v. Dhahalakshmi 1989 Cr.L.J. 1829 (Mad.). But according to Bombay High Court S. 498-A is attracted if the complaint is lodged for cruelty prior to 25-12-1989, that is, the date when S. 498-A has been introduced in the Indian Penal Code: Vasant v. Stale 1987 Cr.L.J. 901 (Bom.).

Section 498-A, if cognizable.—Section is cognizable if the conditions mentioned in column 4 of the Schedule to the Code of Criminal Procedure are fulfilled, otherwise it is non-cognizable. But if a complaint is made before the Magistrate, he may send it to police under S. 156(3), Cr.P.Code for investigation and the police may file chargesheet on the basis of which the Magistrate can take cognizance: Khursheed v. State (1989) 2 Crimes 447 (Raj.).

THE INDIAN PENAL CODE

(45 OF I860)

[tin-October, I860]

(RELEVANT PROVISIONS)

 [304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.—For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment
for a term which shall not be less than seven years but which may extend to
imprisonment for life.]             

Form of charge under section 304-B

J,……………………….(name and designation of the Court of Session), hereby charge you…………..(name of the accused) as follows:

That you, on or about the…………..day of……………. at…………… (place of commission of the offence) committed dowry death by causing the death of……,…….(name), and thereby committed an offence punishable under section 304-B, I.P.Code, and within the cognizance of the Court of Session.

And hereby direct that you be tried on the said charge by the said Court,

COMMENTS

Applicability.—S. 306, I.P.Code when read with S. 113-A of the Evidence Act has only enabled the Court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in S. 498-A, I.P.Code) if such woman committed suicide within 7 years of her marriage. It is immaterial for S. 306, I.P.Code whether the cruelty or harassment was caused “soon before her death” or earlier. If it was caused “soon before her death” the special provision in S. 304-B, I.P.Code would be invokable, otherwise resort can be made to S. 306, I.P.Code: Satvir Singh v. State of Punjab A.I.R. 2001 S.C. 2828: (2001) 8 S.C.C. 633.

Explanation to S. 304-B refers to dowry “as having the same meaning as in S. 2 of the Dowry Prohibition Act”, the question is: what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring therein, and in the absence of any such evidence, it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage: State of Andhra Pradesh v. Raj Gopal Asawa A.I.R. 2004 S.C. 1933: (2004) 3 S.C.C. 470:2004 Cr.L.J. 1791.

S. 304-B, I.P.Code makes “demand of dowry.” itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When S. 304-B refers to “demand of dowry”, it refers to the demand of property or valuable security as referred to in the definition of “dowry” under the Act. “Dowry” definition is to be interpreted with the other provisions of the Dowry Prohibition Act, 1961 including S. 3, which refers to giving or taking dowry and S. 4 which deals with a penalty for demanding dowry, under the Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry: State ofAndhra Pradesh v. Raj Gopal Asawa A.I.R. 2004 S.C. 1933: (2004) 4 S.C.C. 470: 2004 Cr.L.J. 1791.

1. Inserted by Act 43 of 1986, S. 10 (w.e.f. 19-11-1986).

A conjoint reading of S. 113-B of the Evidence Act and S. 304-B, I.P.Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where S. 113-B of the Evidence Act and S. 304-B, I.P.Code are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. No definite period has been indicated and the expression “soon before” is not defined. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence: State ofAndhra Pradesh v. Raj Gopal Asawa A.I.R. 2004 S.C. 1933: (2004) 4S.C.C. 470:2004 Cr.L.J. 1791.

When a person is charged with an offence under Ss. 302 and 498-A, I.P.Code on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under S. 304-B, I.P.Code would stand established. In such a case the accused can be convicted for offence under S. 304-B without the said offence forming part of the charge, but the conviction would be valid only if it did not occasion a failure of justice in view of S. 464(1) of the Cr.P.Code: Shamnsaheb M. Multtani v. State of Karnataka 2001 Cr.L.J. 1075 (S.C.).

Demand for dowry and harassment for that reason are the essential ingredients of the offence under S. 304-B: Sakhi Mandalani v. State ofBihar (1999) 5 S.C.C. 705:1999 S.C.C. (Cr.) 1039.

Ss. 3 and 4 of the Dowry Prohibition Act make out independent offences, but in the instant case it was the demand for dowry coupled with harassment which constitutes the basis of the prosecution case. Once the main part of the charge under S. 304-B was not found established, it was not possible to record conviction under Ss. 3 and 4 of the Dowry Prohibition Act: Sakhi Mandalani v. State of’Bihar (1999) 5 S.C.C. 705:1999 S.C.C. (Cr.) 1039.

Burden on prosecution.—Prosecution, in a case of offence under S. 304-B, LP.Code cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused “soon before her death”. The word “dowry” in S. 304-B has to be understood as it is defined in S. 2 of the Dowry Prohibition Act, 1961: SatvirSingh v. Stateof’Punjab A.I.R. 2001 S.C. 2828:(2001) 8S.C.C. 633.

The essential components of S. 304-B are: (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage, (if) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under S. 304-B: Satvir Singhv. State of Punjab A.I.R. 2001 S.C. 2828: (2001) 8 S.CC. 633.

Dowry death.—S. 304-B has been inserted in the Indian Penal Code by Dowry Prohibition (Amendment) Act, 1986 with a view to combat the increasing menace of dowry deaths. S. 304-B lays down that where the death of a woman is caused by burns or bodily injury or occurs otherwise than normal circumstances within 7 years of marriage and it is shown that soon before the death of the woman she was subjected to cruelty or harassment by her husband or his relation for or in connection with the demand for dowry, such death shall be called dowry death and the husband or the relative shall be deemed to have caused her death: Shanti v. Stateof Haryana A.I.R. 1991 S.C. 1226:1991 Cr.L.J. 1713.

Not retrospective.—S. 304-B is not retrospective. So offence committed prior to coming into force of S. 304-B does not attract the section: Lakhjit Singh v. State (1994) 1 (Supp.) S.C.C. 173; WazirChandv. State of Haryana MR. 1989S.C.378.

Doxvry death, when proved.—When there is a unnatural death of a married woman within 7 years of her marriage presumption of dowry death can be raised if before her death she had been subjected to cruelty or harassment by the accused in connection with any demand of dowry. In such a case the proof of direct connection of the accused with her death is not essential. He is guilty under S. 304-B: Hem Chand v. State of Haryana (1994) 6 S.C.C. 727. When death of the deceased wife was caused by a fall into the well within 7 years of her marriage and there is proof that the deceased was subjected to cruelty and harassment in connection with the demand of dowry amount, the offence under S. 304-B has been made out: State of Kerala v. Rajayyan 1995 Cr.LJ. 989 (Ker.).

When the wife’s suicidal death was due to harassment on account of demand for dowry within 7 years of marriage, the offence under S. 304-B, I.P.Code is proved. But the Supreme Court upheld the conviction of husband alone as there was clear evidence that there were frequent quarrels between the husband and wife. But as against the father-in-law and mother-in-law of the deceased the evidence was general in nature. So the Supreme Court acquitted them of the charge under S. 304-B/34, I.P.Code: Sakmat AH v. State ofBihar 1997 S.C.C. (Cr.) 842.

Dowry death, not proved.—When it was not proved that the accused-husband and his mother used to maltreat and harass the deceased for dowry soon before her death the offence of S. 304-B, I.P.Code with the presumption of S. 113-B of the Evidence Act cannot be established: Bhakhar Ram v. State of Rajasthan 1995 Cr.LJ. 1345 (Raj.). When there was no evidence that the deceased committed suicidejaecause of dowry harassment, the husband cannot be convicted under S. 304-B: Attuluri Krishna Murthy v. State ofA.P. 1995 Cr.LJ. 1653 (Andh. Pra.).

The presumption of dowry death attracting S. 113-B of the Evidence Act is not available when the alleged demand of dowry has not been proved and the allegation of cruelty or harassment to the deceased soon before her death was vague and not trustworthy. So the husband cannot be found guilty under S. 304-B: Joy Ram v. State 1995 Cr.LJ. 1020 (Raj.). But when the deceased was continuously harassed and subjected to cruelty with demand of-dowry and also on the ground of being barren, the presumption under S. 113-AandS. 113-B of the Evidence Act is applicable. The accused is guilty under S. 304-B: P.P. Rao v. State of A.P. 1994 Cr.LJ. 2632 (Andh. Pra.).

Even where woman was set on fire by the in-laws and the motive was greed and avarice for dowry yet the ingredients of the offence of dowry death not having been proved, but the offence of murder having been proved the conviction of the accused for murder S. 302, I.P.Code cannot be disturbed; Sant Gopal v. State of U.P. 1995 Cr.LJ. 312 (AIL). When the allegation that the accused-husband caused death of the deceased wife by strangulation has not been proved by medical evidence and there was no evidence to show that the deceased was subjected to cruelty or harassment by the accused in connection with the demand of dowry, the death of the deceased cannot be held a dowry death only because she died within 7 years of marriage. The acquittal of the husband of the charge under S. 304-B is proper: Public Prosecutor v. Narsu Bai 1995 Cr.LJ. 704 (Andh. Pra.). But when mal-treatment and cruelty to deceased-wife on the part of her husband and mother-in-law in order to compel her to. bring dowry soon before her death is established and the death of the deceased was due to asphyxia by drowning within 7 years of marriage, the charge against the accused under S. 304-B is proved: Nirmal Singh v. State of Haryana 1994 Cr.LJ. (N.O.C.) 351 (P.&K).

Even where the wife committed suicide within four months of the- marriage, the Supreme Court upheld the acquittal of her husband and in-laws when there is no evidence that dowry was ever demanded before or at the time of marriage. It is also proved that the marriage of the deceased-wife was at the instance of her in-laws: Meka Ramaswamy v. Dasari Mo/wn 1998 Cr.LJ. 1105 (S.C.).

Prosecution case is that the deceased-wife committed suicide by consuming poison within four months of marriage on account of cruelty and harassment meted out by the

husband and her relations. But letter written to the wife by her relatives clearly showed that there was cordial relation between the deceased and her husband and her relatives. So when the evidence did not prove that the wife was subjected to cruelty and harassment in connection with the demand for dowry, then there is no scope for presumption of dowry death under S. 113-B of the Evidence Act to arise. So the conviction of the accused-husband under S. 304-B, I.P.Code cannot be sustained: Rajnesh Tandon v. State of Punjab 1995 S.C.C. (Cr.) 817. When the suicide of the wife within seven years of marriage was not due to any demand for dowry and harassment and ill-treatment for such demand but some other depressing factors which prompted her to take her own life, the accused-husband cannot be convicted under S. 304-B, I.P.Code: Pyarelnlv. State of Haryana (1997) 11 S.C.C. 552.

Though the death of the deceased was caused by the burns within seven years of marriage yet soon before her death she was not subjected to cruelty or harassed by the appellants for or in connection with the demand of dowry, no presumption could be drawn under S. 113-B of the Evidence Act against the appellants: Chandra Devi v. State ofRajasthan 2002 Cr.L.J. 1075 (Raj.),

494. Marrying agffti during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception,—This section does not extend to any person, whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction,

nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Form of charge under section 494

I………………………………..(name and office of the Magistrate, etc.), hereby charge

you…………..(name of the accused) as follows:

That you, on or about the…………..day of……………. at…………… had a wife (or

husband) AB living, having been validly married, and that you married CD again during the lifetime of AB, the said second marriage also being duly performed, and thereby committed an offence punishable under section 494, I.P.Code, and within my cognizance.

And I hereby direct that you be tried by the said Court on the said charge.

COMMENTS

Bigamy.—In order to prove the charge of bigamy the complainant being the first wife has not only to prove that she is lawfully married with the accused and that the accused has married for the second tirru.-. When the factum of second marriage is not proved, the charge of bigamy fails: L. Obulamma v. L. Venkata Reddy A.I.R. 1979 S.C. 848. However, the Supreme Court having found that the accused has been living with the alleged second wife, even though the complainant could not prove the second marriage directed the accused-husband to pay Rs. 25,000 as compensation to the complainant first wife: Laxmi Devi v. Satyanarayan (1994) 5 S.C.C. 545.

When the second marriage is alleged to be performed according to Arya Samaj custom but no saptapadi has been performed, the second marriage has not been validly performed: Urmilav. State ofUt tar Pradesh 1994 Cr.L.J. 2910 (All.).

                                                 INDIAN SUCCESSION ACT, 1925                                     

                                                                                                      COMMENTS    

Even though the Christian law does not recognise adoption but as it does not at the same time prohibit adoption, adopted son gets all the rights of a natural born child and he is entitled to inherit the assets of Christian couple: Philips v. Y.f. Gonsalvis A.I.R. 1999 Ker. 187.

5. Law regulating succession to deceased person’s immovable and movable property, respectively.—(1) Succession to the immovable property in ⁶[India] of a person deceased shall be regulated by the law of ‘[India], wherever such person may have had his domicile at the time of his death.

(2) Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.

Illustrations

(i) A, having his domicile in ‘[India], dies in France, leaving movable property in France, moveable property in England, and property, both movable and immovable, in ‘[India]. The succession to the whole is regulated by the law of ‘[India],

(n) A, an Englishman, having his domicile in France, dies ‘[India], and leaves property, both movable and immovable, in ‘[India]. The succession to the movable property is regulated by the rules which govern, in France, the succession to the movable property of an Englishman dying domiciled in France, and the succession to the immovable property is regulated by the law of ‘[India],

6. One domicile only affects succession to movables.—A person can have only one domicile for the purpose of the succession to his movable property.

7. Domicile of origin of person of legitimate birth.—The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father’s death.

Illustration

At the time of the birth of A, his father was domiciled in England. A’s domicile of origin is in England, whatever may be the country in which he was born.

8. Domicile of origin of illegitimate child.—The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.

9. Continuance of domicile of origin.—The domicile of origin prevails until a new domicile has been acquired.

10. Acquisition of new domicile.—A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.

Explanation.—A man is not to be deemed to have taken up his fixed habitation in ⁶[India] merely by reason of his residing there in ⁷[the civil, military, naval or air force service of Government], or in the exercise of any profession or calling.

Illustrations

(i) A, whose domicile of origin is in England, proceeds to ‘[India], where he settles as a barrister or a merchant, intending to reside there during the remainder of his life. His domicile is now in ‘[India].

6. Substituted byActSof 1951,S. Sand Sch.,for “theStates”(w.e.f. 1-4-1951).

7. Substituted by A.0.1950, for “His Majesty’s civil, military, naval or air force service”.                                    

(z’i) A, whose domicile is in England, goes to Austria, and enters the Austrian service, intending to remain in that service. A has acquired a domicile in Austria.

(Hi) A, whose domicile of origin is in France, comes to reside in ⁸[India] under an engagement with the Central Government for a certain number of years. It is his intention to return to France, at the end of that period. He does not acquire a domicile in “[India],

(to) A, whose domicile is in England, goes to reside in ⁸[India] for the purpose of winding up the affairs of a partnership which has been dissolved, and with the intention of returning to England as soon as that purpose is accomplished. He does not by such residence acquire a domicile in ⁸[India] however long the residence may last.

(v) A, having gone to reside in ⁸[India] in the circumstances mentioned in the last preceding illustration, afterwards alters his intention, and takes up his fixed habitation in “[India]. A has acquired a domicile in ^s[India].

(vi) A, whose domicile is in the French Settlement of Chandernagore, is compelled by political events to take refuge in Calcutta, and resides in Calcutta for many years in the hope of such political changes as may enable him to return with safety to Chandernagore. He does not by such residence acquire a domicile in ⁸[India].

(vii) A, having come to Calcutta in the circumstances stated in the last preceding illustration continues to reside thereafter such political changes have occurred as would enable him to return with safety to Chandernagore, and he intends that his residence in Calcutta shall be permanent. A has acquired a domicile in ⁸[India].

11. Special mode of acquiring domicile in India.—Any person may acquire a domicile in ⁸ [India] by making and depositing in some office in ‘[India], appointed in this behalf by the State Government, a declaration in writing under his hand of his desire to acquire such domicile; provided that he has been resident in ⁸[India] for one year immediately preceding the time of his making such declaration.

12. Domicile not acquired by residence as representative of foreign Government, or as part of his family.—A person who is appointed by the Government of one country to be its ambassador, consul or other representative in another country does not acquire a domicile in the latter country by reason only of residing there in pursuance of his appointment; nor does any other person acquire such domicile by reason only of residing with such first-mentioned person as part of his family, or as a servant.

13. Continuance of new domicile.—A new domicile continues until the former domicile has been resumed or another has been acquired.

14. Minor’s domicile.—The domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin.

Exception.—The domicile of a minor does not change with that of his parent, if the minor is married or holds any office or employment in the service of the Government, or has set up, with the consent of the parent, in any distinct business.

15. Domicile acquired by woman on marriage.—By marriage a woman acquires the domicile of her husband, if she had not the same domicile before.

16. Wife’s domicile during marriage.—A wife’s domicile during her marriage follows the domicile of her husband.

Exception.—The wife’s domicile no longer follows that of her husband if they are separated by the sentence of a competent Court, or if the husband is undergoing a sentence of transportation.

8. Substituted by ActSof 1951,S. 3 and Sch., for “the States” (w.e.f. 1-4-1951)..                                                 

17. Minor’s acquisition of new domicile.—Save as hereinbefore otherwise provided in this Part, a person cannot, during minority, acquire a new domicile.

18. Lunatic’s acquisition of new domicile.—An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.

19. Succession to movable property in India in absence of proof of domicile elsewhere.—If a person dies leaving movable property in ‘[India], in the absence of proof of any domicile elsewhere, succession to the property is regulated by the law of ‘[India].

PART III

MARRIAGE

20. Interests and powers not acquired nor lost by marriage.—(1) No

person shall, by marriage, acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.

(2) This section—                                                                                                            

(a) shall not apply to any marriage contracted before the first day of January, 1866;

(b) shall not apply, and shall be deemed never to have applied, to any marriage, one or both of the parties to which professed at the time of the marriage the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.

21. Effect of marriage between person domiciled and one not domiciled in India.—If a person whose domicile is not in ‘[India] marries in “[India] a person whose domicile is in ‘[India], neither party acquires by the marriage any rights in respect of any property of the other party not comprised in a settlement made previous to the marriage, which he or she would not acquire thereby if both were domiciled in ‘[India] at the time of the marriage.

22. Settlement of minor’s property in contemplation of marriage.—(1) The property of a minor may be settled in contemplation of marriage, provided the settlement is made by the minor with the approbation of the minor’s father, or, if the father is dead or absent from ‘[India], with the approbation of the High Court.

(2) Nothing in this section or in section 21 shall apply to any will made or intestacy occurring before the first day of January, 1866, or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina.

send in like manner a separate certificate of the original erroneous entry and of the marginal corrections therein made.

50. Power to make rules.—(l)The Central Government, in the case of ⁵⁵[* * *] officers of the Central Government, and the State Government, in all other cases, may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

¹ (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

(a) the duties and powers of Marriage Officers and the areas in which they may exercise jurisdiction;

(b) the manner in which a Marriage Officer may hold inquiries under this Act and the procedure thereof;

(c) the form and manner in which any books required by or under this Act shall be maintained;

(d) the fees that may be levied for the performance of any duty imposed upon a Marriage Officer under this Act;

 (e) the manner in which public notice shall be given under section 16;

(f) the form in which, and the intervals within which, copies of entries in the Marriage Certificate Book shall be sent in pursuance of section 48;

(g) any other matter which may be or requires to be prescribed.

⁵⁶[(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

(4) Every rule made by the State Government under this Act shall be laid, a£ soon as it is made, before the State Legislature.]

51. Repeals and savings.—(1) The Special Marriage Act, 1872, and any law corresponding to the Special Marriage Act, 1872, in force in any Part B State immediately before the commencement of this Act are hereby repealed.

(2) Notwithstanding such repeal,—

(«) all marriages duly solemnized under the Special Marriage Act, 1872, or any such corresponding law shall be deemed to have been solemnized under this Act;

(V) all suits and proceedings in causes and matters matrimonial which, when this Act comes into operation, are pending in any 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.

55. The words “diplomatic and consular officers and other” omitted by Act 33 of 1969, S. 29 (w.e.f. 31-8-1969).

56. Inserted by Act 20 of 1983, S. 2and Sch. (w.e.f. 15-3-1984).                                                                                   

(3) The provisions of sub-section (2) shall be without prejudice to the provisions contained in section 6 of the General Clauses Act, 1897, which shall also apply to the repeal of the corresponding law as if such corresponding law had been an enactment.                                                                           

                                THE FIRST SCHEDULE                                            
[Seesection2(b)]               
“DEGREES OF PROHIBITED RELATIONSHIP”      

                                           PARTI                                                             

1.Mother.               

2. Father’s widow (step-mother).

3. Mother’s mother.                                                                                                         

4. Mother’s father’s widow (step-grandmother).                                                

5. Mother’s mother’s mother.                                                                            

6. Mother’s mother’s father’s widow (step-great grandmother).

7. Mother’s father’s mother.    

8. Mother’s father’s father’s widow (step-great grandmother).                      

9. Father’s mother.                                                                                                 

10. Father’s father’s widow (step-grandmother).                                     

11. Father’s mother’s mother.                                                                     

12. Father’s mother’s father’s widow (step-great grandmother)

13. Father’s father’s mother.                                                                                             

14. Father’s father’s father’s widow (step-great grandmother).

15. Daughter.                                                                                                                                                      

16. Son’s widow.

17. Daughter’s daughter.                                                                      

18. Daughter’s son’s widow.

19. Son’s daughter.                                                                         

20. Son’s son’s widow.                                                                                                                                         

21. Daughter’s daughter’s daughter.                                                                                   

22. Daughter’s daughter’s son’s widow.                                                        

23. Daughter’s son’s daughter.                                        

24. Daughter’s son’s son’s widow.                                       

25. Son’s daughter’son’s daughter.                                                    

26. Son’s daughter’son’s widow.                             

27. Son’s son’s daughter.                        

28. Son’s son’s son’s widow.                                

29. Sister.                                                              

30. Sister’s daughter.

31. Brother’s daughter.                                                            

32. Mother’s sister.                                                                        

33. Father’s sister.                                           

34. Father’s brother’s daughter.                                                           

35. Father’s sister’s daughter.                                                                

36. Mother’s sister’s daughter.

37. Mother’s brother’s daughter.

Explanation.—For the purpose of this Pat, the expression “widow” includes divorced wife.                                                                                                                                       

PART II

1. Father.

2. Mother’s husband (step-father).                                                               

3. Father’s father.                                                                                                                                                                    

4. Father’s mother’s husband (step-grandfather).                                        

5. Father father’s father.                                                                                                                      

6. Father’s father’s mother’s husband (step-great grandfather).

7. Farher’s mother’s father.                                                                                                       

8. Father’s mother’s mother’s husband (step-greatgrandfather).

9. Mother’s father.                                                                                                                           

10. Mother’s mother’s husband (step-grandfather).     

11. Mother’s father’s father.         

12. Mother’s father’s mother’s husband (step-great grandfather).

13Mother’s mother’s father.                                                                                                                                                                    

14. Mother’s mother’s mother’s husband (step-greatgrandfather).

15. Son.

16. Daughter’s husband.                                 

17. Son’s son.

18. Son’s daughter’s husband.

19. Daughter’s son.                                                                         

20. Daughter’s daughter’s husband.

21. Son’s son’s son.                                                                                           

22. Son’s son’s daughter’s husband.                         

23. Son’s daughter’s son.                                            

24. Son’s daughter’s daughter’s husband.                       

25. Daughter’s son’s son.                                                                                           

26. Daughter’s son’s daughter’s husband.                                                                    

27. Daughter’s daughter’s son.                                          

28. Daughter’s daughter’s daughter’s husband.

29. Brother.

30. Brother’s son.

31. Sister’s son.

32. Mother’s brother.

33. Father’s brother.

34. Father’s brother’s son.                                                                             

35. Father’s sister’s son.

36. Mother’s sister’s son.

37. Mother’s brother’s son.

Explanation.—For the purposes of this Part, the expression “husband” includes divorrced husband.

                                               THE SECOND SCHEDULE                                                      
                                    (See section 5)                                        

NOTICE OF INTENDED MARRIAGE

To                                                                                                                                                                  
Marriage Officer for the…………………..District

We hereby give you notice that a marriage under the Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof.

Name            Condition      Occupation  Age    Dwelling   Permanent dwelling    Length of

place           place if present             residence          dwelling place not permanent                         

Unmarried

Widower

Divorcee

CD.               Unmarried
Widower
Divorcee

Witness our hands this………………dayof………,…..20……………..

(Sd.) A.B.

                                      (Sd.)C.D.
                                         THE THIRD SCHEDULE
                                            (See section 11)

DECLARATION  TO  BE  MADE  BY  THE  BRIDEGROOM l,A.B., hereby declare as follows:—

1.1 am at the present time unmarried (or a widower or a divorcee, as the case may be).

2. I have completed…….years of age.

3.1 am not related to CD. (the bride) within the degrees of prohibited relationship. 4.1 am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to true, I am liable to imprisonment and also to fine.

(Sd.)AB. (theBridegroom). DECLARATION TO BE MADE BY THE BRIDE I, C.D., hereby declare as follows:—

1.1 am at the present time unmarried (or a widow or a divorcee, as the case may be). 2.1 have completed……. .years of age.

3.1 am not related to A.E. (the bridegroom) within the degrees of prohibited relationship.

4.1 am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to be true, I am liable to imprisonment and also to fine.

(Sd.) CD. (the Bride)

Signed in our presence by the above-named A.E. and CD. So far as we are aware there is no lawful impediment to the marriage.

(Sd.) G.H.

Three witnesses.

                       (Sd.)KL

CountersignedE.F.

_;                                                                   Marriage Officer.
‘Dated the………………..dayof…………………20……………..

                                                                                  THE FOURTH SCHEDULE

(See section 13)

CERTIFICATE OF MARRIAGE I, E.F., hereby certify that on the…………..day of………………..20……………….AS. and CD.*

appeared before me and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, made the declarations required by section 11 and that a marriage under this Act was solemnized between them in my presence.

                                                                                                                                      (Sd.)E.F.,
                                                                             Marriage Officer for
                                                                                       (Sd.)AB.,
Bridegroom.

                     (Sd.)C.D.,

          Bride.         .

                                                                                       (Sd.)G.H.

                                                                    (Sd.)/./.

                                                                                                                                                                                                                                           (Sd.)K.L
Dated the………………..day of………………..20……………..

Three witnesses.

*Herein give particulars of the parties.

                                                   SPECIAL MARRIAGE ACT, 1954                                

THE FIFTH SCHEDULE

(See section 16)

CERTIFICATE OF MARRIAGE CELEBRATED IN OTHER FORMS I, E.F., hereby certify that A.B, and CD.* appeared before me this……….day of……!..

20………… and that each of them in my presence and in the presence of three witnesses who

have signed hereunder, have declared that a ceremony of marriage has been performed between them and that they have been living together as husband and wife since the time of marriage, and that in accordance with their desire to have their marriage registered under this Act the said marriage has, this……….day of………20…………been registered under this Act,

having effect as from………….

                                  (Sd.)E.F.,

             Marriage Officer for
                                            (Sd.)AB.,                         

Husband.

                  (Sd.)C.D.,

Wife. (Sd.)G.H.I

Three witnesses. (Sd.) K.L. I

Dated the………………………………dayof…………..20..

*Here give particulars of the parties.

THE MARRIAGE LAWS (AMENDMENT) ACT, 2003*

(50 OF 2003)

                                                                                                              [23rd December, 2003]
An Act further to amend the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.
be it enacted by Parliament in the Fifty-fourth Year of the Republic of India as follows:—

                                                              CHAPTERI                                                               
PRELIMINARY

1. Short title.—This Act maybe called the marriage laws (amendment) act, 2003.

CHAPTER II AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954

2. Amendment of section 31.—In the Special Marriage Act, 1954 (43 of 1954) (hereinafter referred to as the Special Marriage Act), in section 31, in sub-section (1), after clause (in), the following clause shall be inserted, namely:—

“(ilia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or”.

3. Amendment of section 39.—In section 39 of the Special Marriage Act, in sub-section (4), for the words “period ol thirty days”, the words “period of ninety days” shall be substituted.

                                                 CHAPTER III                                                                             
AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955                           

4. Amendment of section 19.—In the Hindu Marriage Act, 1955 (25 of 1955) (hereinafter referred to as the Hindu Marriage Act), in section 19, in sub-section (1), after clause (in), the following clause shall be inserted, namely:—

“(iii-a) in case die wife is .the petitioner, where she is residing on the date of presentation of the petition, or”.

5. Amendment of section 28.—In section 28 of the Hindu Marriage Act, in sub-section (4), fqr the words “period of thirty days”, the words “period of ninety days” shall be substituted.

CHAPTER IV MISCELLANEOUS

6. Transitory provisions.—All decrees and orders made by the Court in any proceedings under the Special Marriage Act or the Hindu Marriage Act shall be governed under the provisions contained in section 3 or section 5, as the case may be, as if this Act came into operation at the time of the institution of the suit:

Provided that nothing in this section shall apply to a decree or order in which the time for appealing has expired imder the Special Marriage Act or the Hindu Marriage Act at the commencement of this Act.

34. Duty of Court in passing decrees.—(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the Court is satisfied that,—

(a) any of the grounds for granting relief exists; and

(b) ⁴⁵[where the petition is founded on the ground specified in clause (a) of sub-section (1) of section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein,] or, where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and

(c) when divorce is sought on the ground of mutual consent, such consent has not been obtained’by force, fraud or undue influence; and

(d) the petition is not presented or prosecuted in collusion with the respondent; and

(e) there has not been any unnecessary or improper delay in instituting the proceeding; and

(f) there is no other legal ground why the relief should not be granted;

then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:

“”[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (c), clause (e), clause (/), clause (g) and clause (h) of sub-section (1) of section 27.]

⁴⁷[(3) For the purpose of aiding the Court in bringing about such reconciliation, the Court may, if the parties so desire or if the Court thinks it just and proper so to do, adjourn the proceeding for a reasonable period not .exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties fail to name any person,,, with directions to report to the Court as to whether reconciliation can be and has been, effected and the Court shall in disposing of the proceeding have due regard to the report.

(4) In every case Yⁿere,a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to 'each of the parties.] ,                                                                              

⁴⁸[35. Relief for respondent in divorce, and jpther proceedings.—In any

proceeding for divorce or judicial separation or restitution of conjugal rights,, the respondent may not only oppose the relief sought-on the ground of etitioner's adultery, cruelty or desertion, but also make a counter-claim ^:or any relief under this Act on that ground, and if the petitioner's adultery, 'cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

” 45. Substituted by Act 68 of 1976, S. 34, for certain words <w.l.f. 27-5-1976).

46. Added by Act 68 of 1976,5.34 (w.e.f. 27-5-1976).                                                    ,                   

47. Inserted by Act 68 of 1976, S. 34 (w.e.f. 27-5-1976).                                                                                                           
“48. Substituted by Act 68 of 1976, S.35, for S.35 (w.e.f. 27-5-1976).                                                                        

36. Alimony pendente lite.—Where in any proceeding under Chapter V or Chapter VI it appears to the district Court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such as having regard to the husband’s income, it may seem to the Court to be reasonable:

“‘[Provided that the application for the payment of the expenses of the proceeding and such weekly or monthly sum during the proceeding under Chapter V or Chapter VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the husband.]

37. Permanent alimony and maintenance.—(1) Any Court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, or application made to it for the
purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband’s property, such gross sum or such monthly or periodical payment of money for a term not exceeding
her life, as, having regard to her own property, if any, her husband’s property and ability ⁵⁰[the conduct of the parties and other circumstances of the case] it may seem to the Court to be just.                                                                                       _;

(2) If the district Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub­section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the Court to be just.

(3) If the district Court is satisfied that the wife in whose favour an order has been made under this section has remarried or is not leading a chaste life, ⁵⁰[it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the Court may deem just].

38. Custody of children.—In any proceeding under Chapter V or Chapter VI the district Court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending:

⁵¹[Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall, ass far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]

49. Inserted by Act 49 of 2001, S. 6 (w.e.f. 24-9-2001).

50. Substituted by Act 68 of 1976, S. 36, for certain words (w.e.f. 27-5-1976).                       .    _:

51. Inserted by Act 49 of 2001, S. 7 (w.e.f. 24-9-2001).

⁵²[39. Appeals from decrees and orders.—(1) All decrees made by the Court in any proceeding under Chapter V or Chapter VI shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and such appeal shall lie to the Court to which appeals ordinarily lie from th£ decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act under section 37 or section 38 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a "[period of ninety days] from the date of the decree or order.

39-A. Enforcement of decrees and orders.—All decrees and orders made by the Court in any proceeding under Chapter V or Chapter VI shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced.]

40. Application of Act V of 1908.—Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (V of 1908).

⁵⁴[40-A. Power to transfer petitions in certain cases.—(1) Where—

(a) a petition under this Act has been presented to the district Court having jurisdiction by a party to the marriage praying for a decree for judicial separation under section 23 or for a decree of divorce under section 27, and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for decree for judicial separation under section 23, or for decree of divorce under section 27 on any ground whether in the same district Court or in a different district Court, in the same State or in a different State,

the petition shall be dealt with as specified in sub-section (2). (2) In a case where sub-section (1) applies,—

(a) if the petitions are presented to the same district Court, both the petitions shall be tried and heard together by that district Court;

(b) if the petitions are presented to different district Courts, the petition presented later shall be transferred to the district Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district Court in which the earlier petition was presented.

52. Substituted by Act 68 of 1976, S. 37, for S, 39 (w.e.f. 27-5-1976).

53. Substituted by Act 50 of 2003, S. 3, for "period of thirty days" (w.e.f. 23-12-2003). S. 6 of the Marriage Laws (Amendment) Act, 2003 provides as under:—"6. Transitory provisions.—All decrees and orders made by the Court in any proceedings under the Special Marriage Act or the Hindu Marriage Act shall be governed under the provisions contained in section 3 or section 5, as the case may be, as if this Act came into operation at the time of the institution of the suit:

Provided that nothing in this section shall apply to a decree or order in which the time for appealing has expired under the Special Marriage Act or the Hindu Marriage Act at the commencement of this Act."

54. Ss. 40-A, 40-B and 40-C inserted by Act 68 of 1976, S. 38 (w.e.f. 27-5-1976).

(3) In a case where clause- (b) of sub-section (2) applies, the Court or the Government, as th'e case may be, competent under the Code of Civil Procedure, 1908 (V of 1908), to transfer any suit or proceeding from the district Court in which the later petition has been presented to the district Court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it has been empowered so to do under the said Codl.

40-B. Special provision relating to trial and disposal of petitions under the Act.—(1) The trial of a petition under this Act shall, so far as it practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible, and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

40-C. Documentary evidence.—Notwithstanding anything contained in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.]

41. Power of High Court to make rules regulating procedure.—(1) The

High Court shall, by notification in the Official Gazette, make such rules consistent with the provisions contained in this Act and the Code of Civil Procedure, 1908 (V of 1908), as it may consider expedient for the purpose of carrying into effect the provisions of Chapters V, VI and VII.

(2) In particular, and without prejudice to the generality of the foregoing provision, such rules shall provide for—

(a) the imp leading by the petitioner of the adulterer as a co-respondent on a petition for divorce on the ground of adultery, and the circumstances in which the petitioner may be excused from doing so;

(b) the awarding of damages against any such co-respondent;

(c) the intervention in any proceeding under Chapter V or Chapter VI by any person not already a party thereto;

(d) the form and contends of petitions for nullity of marriage or for divorce and the payment of costs incurred by parties to such petitions; and

(<?) any other matter for which no provision or no sufficient provision is made in “this Act, and for which provision is made in the Indian Divorce Act, 1869 (4 of 1869).

CHAPTER VIII .      

MISCELLANEOUS

42. Saving.—Nothing contained in this. Act shall affect the validity of any marriage not solemnized under its provisions; nor shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage.

43. Penalty on married person marrying again under this Act.—Save as otherwise provided in Chapter HI, every person who, being at the time married, procures a marriage of himself or herself to be solemnized under this          

Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code (45 of 1860), as the case may be, and the marriage so solemnized shall be void.

44. Punishment of bigamy.—Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in section 494 and section 495 of the Indian Penal Code (45 of 1860), for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.

45. Penalty for signing false declaration or certificate.—Every person making, signing or attesting any declaration or certificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in section 199 of the Indian Penal Code (45 of 1860).

46. Penalty’ for wrongful action of Marriage Officer.—Any Marriage Officer knowingly and wilfully solemnized a marriage under this Act—

(1) without publishing a notice regarding such marriage as required by section 5; or

(2) within thirty days of the publication of the notice of such marriage; or

(3) in contravention of any provision contained in this Act,

shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.

47. Marriage Certificate Book to be open to inspection.—(1) The Marriage Certificate Book kept under this Act shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements therein contained.

. (2) Certified extracts from the Marriage Certificate Book shall, on application, be given by the Marriage Officer to the applicant on payment by him of the prescribed fee.

48. Transmission of copies of entries in marriage records.—Every Marriage Officer in a State shall send to the Registrar-General of Births, Deaths and Marriages of that State at such intervals and in such form as may be prescribed, a true copy of all entries made by him in the Marriage Certificate Book since the last of such intervals, and in the case of Marriage Officers outside the territories to which this Act extends, the true copy shall be sent to such authority as the Central Government may specify in this behalf.

49. Correction of errors.—(1) Any Marriage Officer who discovers any error in the form or substance of any entry in the Marriage Certificate Book may, within one month next after the discovery of such error, in the presence of the persons married, or, in case of their death or absence, in the presence of two other credible witnesses, correct the error by entry in the margin without any alteration of the original entry and shall sign the marginal entry and add thereto the date of such correction and the Marriage Officer shall make the like marginal entry in the certificate thereof.

(2) Every correction made under this section shall be attested by the witnesses in whose presence it was made.

(3) Where a copy of any entry has already been sent under section 48 to the Registrar-General or other authority, the Marriage Officer shall make and

(V) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition? or]

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as denned in the Indian Penal Code (45 0^860);

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

^K[(e) has been incurably of unsound mind/ or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation. — In this clause, —                                                                      

'(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(fc) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or

(/) has been suffering from venereal disease in a communicable form, or;]

(g) .has ²⁶[* * *] been suffering from leprosy, the disease not haying been contracted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; ²⁷[*]

‘^[Explanation. — In this sub-section, the expression "desertion" means desertion of the petitioner "by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;]

³¹[(1-A) A wife may also present a petition for divorce to the district Court on the ground, —

24. Proviso to Cl. (c) omitted by Act 68 of 1976, S. 27 (w.e.f. 27-5-1976).

25. Substituted by Act 68 of 1976, S. 27, for Cls. (e) and {/) (w.e.f. 27-5-1976).

26. The words "for a -period of not less than three years immediately preceding the
presentation of the petition" omitted by Act 68 of 1976, S. 27 (w.e.f. 27-5-1976).     

27. The word "or" omitted by Act 29 of 1970,5.3.

28. Inserted by Act 68 of 1976,8.27 (w.e.f. 27-5-1976).                              

29. Cls. (i) and (/) omitted by Act 29 of 1970, S. 3 (w.e.f. 12-8-1970).

30. The words "and by the wife on the ground that her husband has, since the solemnization of, the marriage, been guilty of rape" omitted by Act 68 of "1976, S. 27 (w.e.f. 27-5-1976).

31. Inserted by Act 68 of 1976, S. 27 (W.e.f. 27-5-1976).                                                                            

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality,

(if) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.]

³²[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the district Court on the ground — . ,

(z) that there has been no resumption or cohabitation as between the parties to the marriage for a period of one year or upwards after passing of a decree for judicial separation in a proceeding to which they were parties; or

(it) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were
parties.]                                                                                  

COMMENTS

Calling somebody who is born a “sikh”, a “sikhra” repeatedly over and over again over a period of time, would amount to cruelty: Iris Paintal v. Avtar Singh Paintal A.I.R. 1988 Del.

³³[27-A. Alternate relief in divorce proceedings. — In any proceeding under this Act, or a petition for dissolution of marriage by decree of divorce, except in so far as the petition is founded on the ground mentioned in clause (h) of sub-section (1) of section 27, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.]

28. Divorce by mutual consent. — (1) Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the district Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) ³⁴[On the motion of both the parlies made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the averments in the 

petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

32. Inserted by Act 29 of 1970, S. 3(w.e.f. 12-8-1970).

33. Inserted by Act68 of 1976, 9. 28 (w.e.f. 27-5-1976).                                                     

34. Substituted by Act 68 of’1976, S. 29, for “On the motion of both the parties made not earlier than one year after the date of the presentation of the petition referred to in sub­ section (1) and not later than two years” (w.e.f. 27-5-1976).                                                                                                                                                                      

COMMENTS

Divorce by mutual consent cannot be obtained by having resort to S. 28 of the Special Marriage Act when marriage has neither been solemnised nor registered under the provisions of that Act but has been solemnised under the provisions of the Christian Marriage Act: Stephen Joshus v. J.S. Kapoor (1995) 58 Del.L.T. 57.

29. Restriction on petitions for divorce during first one year after marriage.—(1) No petition for divorce shall be presented to the district Court ³⁵[unless at the date of the presentation of the petition one year has passed] since the date of entering the certificate of marriage in the Marriage Certificate Book:

Provided that the district Court may, upon application being made to it, allow a petition to be presented ³⁶[before one year has passed] on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the district Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the district Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have until after the ³⁷[expiry of one year] from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the ³⁸[expiration of the said one year] upon the same, or substantially the same facts as those proved in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the ³⁹[expiration of one year] from the date of the marriage, the district Court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of ⁴⁰[said one year].

Objects and Reasons.—In section 29, “a provision has been included restricting petitions for divorce during the first three years after marriage as, in the opinion of the Joint Committee, the parties should be given a full opportunity to make the marriage a success.”—J.C.R.

30. Remarriage of divorced persons.—Where a marriage has been dissolved by a decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, ⁴¹[* * * *] either party to the marriage may marry again.

35. Substituted by Act 68 of 1976, S. 30, for “unless at the date of presentation of the petition three years have passed” (w.e.f. 27-5-1976)..

36. Substituted by Act 68 of 1976, S. 30, for “three years have passed” (w.e.f. 27-5-1976).

37. Substituted by Act 68 of 1976, S. 30, for “expiry of three years” (w.e.f. 27-5-1976).

38. Substituted by Act 68 of 1976, S. 30, for “expiration of the said three years” (w.e.f. 27-5-1976).

39. Substituted by Act 68 of 1976, S. 30, for “expiration of three years” (w.e.f. 27-5-1976).

40. Substituted by Act 68 of 1976, S. 30, for “said three years” (w.e.f. 27-5-1976).

41. The words “and one year has elapsed thereafter but not sooner,” omitted by Act 68 of 1976, S. 31 (w.e.f. 27-5-1976).                          

CHAPTER VII JURISDICTION AND PROCEDURE

31. Court to which petition should be made.—^[(l) Every petition under Chapter V or Chapter VI shall be presented to the district Court within the local limits of whose original civil jurisdiction—

(z) the marriage was solemnized; or

(if) the respondent, at the time of the presentation of the petition, resides; or

(Hi) the parties to the marriage last resided together; or

⁴³[(m-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]

(iv) the petitioner is residing at the time of the presentation of the petition, in^a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.]

•A

(2) Without prejudice to any jurisdiction exercisable by the Court under sub-section (1), the district Court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.

32. Contents and verification of petitions.—(T») Every petition under Chapter V or Chapter VI shall state, as distinctly as the nature of the case permits, the fact on which the claim to relief is founded, and shall also state
that there is no collusion between the petitioner and the other party to the marriage.                                                         

(2) The statements contained in every such petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing be referred to as
evidence.                                                                                         

⁴⁴[33. Proceedings to be in camera and may not be printed or published.—

(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any-such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.]

“« 42. Substituted by Act 68 of 1976, S. 32, for sub-S. (1) (w.e.f. 27-5-1976).

43. Inserted by Act 50 of 2003, S. 1- (w.e.f. 23-12-2003).                                                                                

44. Substituted by Act 68 of 1976, S. 33,forS. 33 (w.e.f. 27-5-1976).

the marriage in the Marriage Certificate Book in the Form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.

17. Appeals from orders under section 16.—Any person aggrieved by any order of a Marriage Officer refusing to register a marriage under this Chapter may, within thirty days from the date of the order, appeal against that order to the district Court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district Court, on such appeal, shall be final, and the Marriage Officer to whom the application was made shall act in conformity with such decision.

18. Effect of registration of marriage under this Chapter.—Subject to the provisions contained in sub-section (2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names snail also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents:

Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.

CHAPTER IV

             CONSEQUENCES OF MARRIAGE UNDER THIS ACT

19. Effect of marriage on member of undivided family.—The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.

Objects and Reasons.—The Joint Committee gave very anxious consideration to this clause as this had been made the subject of attack in many of the opinions received on the ground that it penalises marriages under this law. After careful consideration the Joint Committee have decided to retain this clause in its original form, particularly because it has the desirable effect of simplifying the law of succession. Were the clause to be omitted the share in the joint family property of a person marrying under this law will necessarily have to devolve on the survivors, which would mean that the daughters will be left out of account. Moreover, one of the chief reasons why persons marry under this law is that in case of intestate succession, the Succession Act will apply and it would be extremely inconvenient to have different laws of succession applicable to different types of property. Severance from the joint family does not, of course, prevent the parties from reuniting if they so desire.—J.C.R.

20. Rights and disabilities not affected by Act.—Subject to the provisions of section 19, any person whose marriage is solemnized under this Act, shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 (21 of 1850), applies.

Objects and Reasons.—With respect to clause 19 [now section 20], the Caste Disabilities Removal Act, 1850, provides that so much of any law or usage as may be held in any way to impair or affect any right of inheritance of any person by reason of his or her renouncing or having been excommunicated from the communion of any religion or being deprived of caste shall cease to be enforced as law.—S.O.R.                    

21. Succession to property of parties married under Act.—Notwith­standing any restrictions contained in the Indian Succession Act, 1925 (39 of 1925), with respect to its application to members of certain communities, succession to the property or any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted there from.

¹⁶[21-A. Special provision in certain cases.—Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply.]

COMMENTS

Where marriage of Hindu is solemnised under Special Marriage Act, held, succession is governed by Hindu Succession Act and not by Indian Succession Act: Maneka Gandhi v. Indira Gandhi A.I.R. 1985 Del. 114(D.B.).

CHAPTER V

RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION

22. Restitution of conjugal rights.—When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district Court 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.

^[Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

23. Judicial separation.—(1) A petition for judicial separation may be presented to the district Court either by the husband or the wife,—

(a) on any of the grounds specified ¹⁸[in sub-section (1) ¹⁹[and sub­section (1-A)] of section 27] on which a petition for divorce might have been presented; or

(b) on the ground of failure to comply with a decree 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 judicial separation accordingly.

(2) Where the Court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

16. Inserted by Act 68 of 1976, S. 22 (w.e.f. 27-5-1976).

17 Added by Act 68 of 1976, S. 23 (w.e.f. 27-5-1976).                                     

18. Substituted by Act 29 of 1970,8.2 (w.e.f. 12-8-1970).                                                                

19. Inserted by Act68ofl976,S.24(w.e.f.27-5-1976).                  

                                                   CHAPTER VI

NULLITY OF MARRIAGE AND DIVORCE

24. Void marriages.—(1) Any marriage solemnized under this Act shall be null and void ²⁰[and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if—

(z) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or

(if) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of section 15:

Provided that no such declaration shall be made in any case where an appeal has been preferred under section 17 and the decision of the District Court has become final.

Modifications.—In its application to marriages referred to in section 18(1) of the Foreign Marriage Act, 1969, section 24 shall be subject to the following modifications, namely:—

(/) the references in sub-section (1) to clauses (a), (b), (c) and (d) of section 4, shall be construed as references to clauses (a) to (d) of section 4 of the Foreign Marriage Act, 1969; and

(if) nothing contained in this section shall apply to any marriage—                              

(a) which is not solemnized under that Act, i.e.,33 of 1969;or

(b) which is deemed to be solemnized under the said Act by reason of the provisions of section 17 of that Act:

Provided that the registration of any such marriage referred to in clause (b) above
may be declared to be of no effect if the registration was in contravention of sub-section
(2) of section 17 of that Act, i.e., 33 of 1969—See section 18(2) of the Foreign Marriage
Act, 1969 (33 of 1969).
                            

 COMMENTS      

The provisions contained in S. 24 which indicate certain grounds on which the marriage solemnized under the Act shall be treated to be null and void, cannot be held to be exhaustive of the grounds specified under that section which ought to be treated and taken as only enumerative. However, once the facts attracting the grounds indicated in S. 24(1) of the Act subject to the exception provided for under sub-S. (2) thereof are proved to exist, no marriage in fact can be recognised as a marriage in fact can be recognised as a marriage in law and no marital status as referred to hereinabove can flow from such a marriage but as indicated hereinabove, the grounds mentioned in S. 24(b) of the Act cannot be deemed to be the only grounds on which any marriage claimed to be solemnized under the Act is to be treated to be null and void. There may be other grounds leading to the same effect and one of such other grounds has been specifically provided for under the Act itself under S. 12(2): Nirmal Dass Base v. Mamta Gulati A. I. R. 1997 AH. 401.

25. Voidable marriages.—Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if—

(z) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or

20. Substituted by Act 68 of 1976, S. 25, for “and may be so declared” (w.e.f,27-5-1976).                                                

f (it) the respondent was at the tune of the marriage pregnant by some person other thai* the petitioner; or

(in) the consent of either party in the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872):

Provided that, in the case specified in clause (zz), the Court shall not grant a decree unless it is satisfied—

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(V) that proceedings were instituted within a year from the date of the marriage; and

(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:

Provided further that in the case specified in clause (Hi), the Court shall not grant a decree if—

(a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.

²¹[26. Legitimacy   of   children   of   void   and   voidable   marriages.—

(1) Notwithstanding that a marriage is null and void under section 24, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.]

27. Divorce.—²²[(1)] Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the district Court either by the husband or the wife on the ground that the respondent—

²³[(a) has, after the solemnization of marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

21. Substituted by Act 68 of 1976, S. 26(w.e.f. 27-5-1976).

22. S. 27 renumbered as sub-S. (1) thereof by Act 29 of 1970, S. 3 (w.e.f. 12-8-1970).

23. Substituted by Act 68 of 1976, S. 27, for Cls. (a) and (b) (w.e.f. 27-5-1976).

(if) that such rule is certain and not unreasonable or opposed to public policy; and

(Hi) that such rule, if applicable only to a family, has not been discontinued by the family.]

Objects and Reasons—Apart from the fact that the provisions of this Act, if passed, will apply to all persons marrying thereunder irrespective of the religion they may profess, the other changes of importance which have been made in this clause, as compared with section 3 of Act in of 1872, are the following, namely:—

(a) the addition of a new condition relating to idiocy and lunacy;                      

(b) the raising of the age limit for marriage…..;

(c) the provision for marriages abroad between citizens of India.—S.O.R.

COMMENTS

There is nothing in the Special Marriage Act which indicates that any marriage between two Hindus is void, if either of them has a spouse living at the time of the marriage: . Pammeshwari Bai v. Muthojirao Scindia A.I.R. 1981 Karn. 40.

5. Notice of intended marriage.—When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the Form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

COMMENTS

The non-compliance of the requirement contemplated under Ss. 5 and 6 of the Special Marriage Act is not by itself fatal but is only an irregularity which does not go to the root of the matter and cannot be taken to nullify a marriage in fact evidenced by the certificate of marriage contemplated under the Act: Nirmal Dass Bosev. Mamta Gulati A.I.R. 1997 All. 401.

6. Marriage Notice Book and publication.—(1) The Marriage Officer shall keep all notices given under section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same.

(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

Objects and Reasons—Sub-section (3).—In cases where a marriage is sought to be solemnized before a Marriage Officer other than the Marriage Officer within whose jurisdiction the parties are permanently residing, it is essential that the notice should be given in the place of permanent residence also, and sub-clause (2) [now sub-section (3)] makes provision in this behalf.—J.C.R.

7. Objection to marriage.—(1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub-section (2) of section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4.

(2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of section 6, the marriage may be solemnized, unless it has been previously objected to under sub-section (1).

(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be read over and explained, if necessary, to the person making the objection and shall be signed by him or on his behalf.

8. Procedure on receipt of objection.—(1) If an objection is made under section 7 to an intended marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection and is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdrawn by the person making it; but the Marriage Officer shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decision.

(2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the district Court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district Court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the Court.

Objects and Reasons—Sections 8, 9 and 10.—The Joint Committee feel that it would not be in the interests of the parties to an intended marriage or in the public interest that Courts should be invested with jurisdiction in the matter of objections to any such marriage. Such objections should ordinarily be disposed of by the Marriage Officers themselves within a specified period, the parties being given a right of appeal if aggrieved by the decision of the Marriage Officer. The Marriage Officer should also have the usual powers for holding inquiries with respect to such matters.—J.C.R.

9. Powers of Marriage Officers in respect of inquiries.—(1) For the purpose of any inquiry under section 8, the Marriage Officer shall have all the powers vested in Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely:—

(a) summoning  and  enforcing  the  attendance  of witnesses  and examining them on oath;

(V) discovery and inspection;                                           

(c) compelling the production of documents;

(d) reception of evidence on affidavits; and

(e) issuing commissions for the examination of witnesses;

and any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code.

Explanation.—For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his district.

(2) If it appears to the Marriage Officer that the objection made to an intended marriage is not reasonable and has not been made in good faith he may impose on the person objecting costs by way of compensation not exceeding one thousand rupees and award the whole or any part thereof to the

parties to the intended marriage, and any order for costs so made may be executed in the same manner as a decree passed by the district Court within the local limits of whose jurisdiction the Marriage Officer has his office.

10. Procedure on receipt of objection by Marriage Officer abroad.—Where an objection is made under section 7 to a Marriage Officer ¹⁴[ii* the State of Jammu and Kashmir in respect of an intended marriage in the State] and the Marriage Officer, after making such inquiry into the matter as he thinks fit, entertains a doubt in respect thereof, he shall not solemnize the marriage but shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government, and the Central Government, after making such inquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer who shall act in conformity with the decision of the Central Government.

11. Declaration by parties and witnesses.—Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the Form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.

12. Place and form of solemnization.—(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance there from as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed.

(2) The marriage may be solemnized in any form which the parties may choose to adopt:

Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,—”I. (A), take thee (B), to be my lawful wife (or husband).”

COMMENTS

The statutory provisions contained under S. 12 are of a mandatory nature and once it is established that the declaration contemplated therein had not been made in the manner prescribed, the marriage solemnized at the office of Marriage Officer has to be held to be incomplete conferring no marital status on the parties. Obviously, in such a situation, the alleged marriage has to be held to be void: Nirmal Dass Bosev. Mamta Gulati A.I.R. 1997 All. 401.

13. Certificate of marriage.—(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the Form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

14. New notice when marriage not solemnized within three months.— Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required

14. Substituted by Act 33 of 1969, S. 29, for “outside the territories to which this Act
extends in respect of an intended marriage outside the said territories” (w.e.f.
31-8-1969).

by section 5, or where an appeal has been filed under sub-section (2) of section 8, within three months from the date of the decision of the district Court on such appeal or, where the record of a case has been transmitted to the Central Government under section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising there from shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.

CHAPTER III REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS

15. Registration of marriages celebrated in other forms.—Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872)¹⁵, or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:—

(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;

(b) neither party has at the time of registration more than one spouse living;

(c) neither party is an idiot or a lunatic at the time of registration;

(d) the parties have completed the age of twenty-one years at the time of registration;

(e) the parties are not within the degrees of prohibited relationship:

Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and

(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.

Objects and Reasons—Section 15(e), Proviso.—In the opinion of the Joint Committee, the scope of this clause should be widened so as to include within it marriages which, although hit by the rule of prohibited degrees as defined in the Bill, are valid under the personal law applicable to the parties.—J.C.R.

COMMENTS                            

The notification issued under S. 15 of the Special Marriage Act and the certificate issued under S. 16 of the same Act cannot be said to be a conclusive proof of a marriage solemnized under the Hindu Marriage Act. Under the Hindu Marriage Act a marriage can only be solemnized if the ceremony of the marriage as per S. 7 of the Act are strictly performed: State v. Santosk Saha A.I.R. 2000 Cal. 104 (D.B.).

16. Procedure for registration.—Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within the period, shall, if satisfied that all the conditions mentioned in section 15 are fulfilled, enter a certificate of

15. Repealed by Act 54 of 1954, S. 51.

                                                                                    .

THE SPECIAL MARRIAGE ACT, 1954 (43 OF 1954)

[9th October, 1954]

An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.

be it enacted by Parliament in the Fifth Year of the Republic of India as

follows:—

Statement of Objects and Reasons—This Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnization of their marriage, but certain formalities are prescribed before the marriage can be registered by the Marriage Officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnizing and registering marriages between citizens of India in a foreign country.

2. Provision is also sought to be made for permitting persons who are already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of these provisions.

3. The bill is drafted generally on the lines of the existing Special Marriage Act of 1872 and the notes on clauses attached thereto explain some of the changes made in the Bill in greater detail.

Amendment Act 32 of 1963—Statement of Objects and Reasons.—Under the Special Marriage Act, 1954 marriage can take place between two persons who are not withiii the degrees of prohibited relationship. Ordinarily, such marriage takes place between persons professing different faiths or belonging to different communities or groups and the question of prohibited degrees between the parties does not normally arise. There may, however, be some cases where marriage is solemnized under the Special Marriage Act between persons professing same faith and belonging to the same group or family. In such a case, marriage, cannot take place between the parties who are within the degrees of prohibited relationship.

2. Under the Hindu Law also, marriage is normally prohibited between persons who are within the degrees of prohibited relationship or who are sapindas of each other. But in some parts of India and in some tribes and communities, there is a well-recognised custom which permits marriage between persons within the degree of prohibited relationship. In the Hindu Marriage Act, 1955, a specific provision was, therefore, inserted to save such custom. In the Special Marriage Act, however, marriage between persons within the degrees of prohibited relationship is totally prohibited and no exception has been made on grounds of custom or usage as in the Hindu Marriage Act. It is, therefore, considered necessary that a specific provision should be inserted in the Special Marriage Act to permit marriage between persons within the degrees of prohibited relationship, if there is a well-recognised custom applicable to one of the parties under which such marriage is permissible, hence, the Bill.

Amendment Act 68 of 1976—Statement of Objects and Reasons.—The Hindu Marriage Act, 1955 (25 of 1955), became law on the 18th May, 1955. It applies to all Hindus, Buddhists, Jainas or Sikhs. It applies also to all other persons who are not Muslims, Christians, Parsis or Jews unless they establish that they were not governed by Hindu Law, custom or usage prior to the Act.

Since the passing of the Hindu Marriage Act, various suggestions for amending the same as well as the Special Marriage Act, 1954, were received from some Members of Parliament and the general public. The Special Marriage Act, 1954, being a civil law applicable to all, has necessarily to keep pace with any reform of matrimonial laws. The Law Commission was requested to examine the matter and they have presented the Fifth-ninth Report which contains their recommendations. The Bill seeks to amend both the Acts aforesaid so as to implement, with necessary modifications, the recommendations contained in that Report. The Committee on Status of Women in India have generally supported the amendments proposed by the Law Commission and suggested, inter alia, the incorporation of a suitable provision for mutual consent in the Hindu Marriage Act more or less on the lines of a provision in that behalf in section 28 of the Special Marriage Act. It is, however, felt that when once the parties have chosen to move the Court for divorce by mutual consent, it is not necessary to make them wait for a further period of one year to obtain relief. This period of waiting is, therefore, proposed to be reduced from one year to six months. The committee has further suggested that having regard to the frequent violations of the provisions of the Child Marriage Restraint Act, it is necessary to provide in the Hindu Marriage Act a suitable provision conferring the right of repudiation of girls who are subject to such marriages, whether the marriage was consummated or not. The right of repudiation is proposed to be conferred on such girls subject to their exercising the same before attaining the age of 18 years. To avoid multiplicity of litigation and consequent delay, it is also proposed to apply the amended law in relation to all pending proceedings under the relevant Acts. Notes on clauses appended to the Bill indicate the changes proposed to the statutes. The objects of the legislation are mainly, (2) to liberalise the provision relating to divorce; (2) to enable expeditious disposal of proceedings under the Act; and (3) to remove certain anomalies and handicaps that have come to light after the passing of the Acts.

Amendment Act 50 of 2003—Statement of Objects and Reasons.—The Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 provide that a petition for relief under the provisions of these Acts shall be presented to the District Court within the limits of whose original civil jurisdiction the marriage was solemnized or the respondent, at the time of the presentation of the petition, resided or the parties to the marriage last resided together or the petitioner was residing at the time of the presentation of the petition, in a case where the respondent was at the time residing outside the territories to which these Acts extended or had not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive. However, these provisions are not considered adequate or fair as far the women are concerned. Under the existing provisions, a petition cannot be filed by the aggrieved wife to the District Court within the local limits of whose ordinary jurisdiction she may be residing. In view thereof, the Government has decided to amend the provisions of these Acts so that the wife can also file petition in the District Court within local limits of whose jurisdiction she may be residing. The proposed amendments to sections 31 and 19 of the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 respectively are based on the recommendations of the Law Commission of India and the National Commission for Women.

2. The Government has also decided to amend section 39 of the Special Marriage Act, 1954 and section 28 of the Hindu Marriage Act, 1955 to provide respectively that the parties to a matrimonial suit could prefer appeal within a period of ninety days instead of thirty days. This amendment is based on the observations made by the Supreme Court in a judgment delivered recently. The amendment to these provisions is proposed so that unscrupulous litigant spouses are not facilitated to frustrate the marriages, taking advantage of the inadequate period provided in law.

CHAPTERI PRELIMINARY

1. Short title, extent and commencement.—(1) This Act may be called the

special marriage act, 1954¹.

1. The applicability of the Act has been extended to (1) Dadra and Nagar Haveli by Regulation 6 of 1963, and (2) Pondicherry by Regulation 7 of 1963.

(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to citizens of India domiciled in the territories to which this Act extends who are ²[in the State of Jammu and Kashmir] .

(3) It shall come into force on such date³, as the Central Government may, by notification in the Official Gazette, appoint.

Objects and Reasons. — The Act is to have extra-territorial operation so as to permit of marriages between citizens of India being solemnized outside India. — S.O.R.

This law should also apply to persons permanently residing in any part of India outside the State of Jammu and Kashmir who may, for the time being, be in that State in the same manner as it applies to such persons outside India. — J.C.R.

2. Definitions. — In this Act, unless the context otherwise requires, —

(b) “degrees of prohibited relationship” — a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship;

Explanationl. — Relationship includes, —

(a) relationship by half or uterine blood as well as by full blood;

(b) illegitimate blood relationship as well as legitimate;

(c) relationship by adoption as well as by blood; and all terms of relationship in this Act shall be construed accordingly.

Explanation II. — “Full blood” and “half blood” — two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Explanation III. — “Uterine blood” — two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;

Explanation IV. — In Explanations II and III, “ancestor” includes the father and “ancestress” the mother;

5[>**1                                                                                                                   

(d) "district", in relation to a Marriage Officer, means the area for which he is appointed as such under sub-section (1) or sub-section (2) of section 3;

⁶[(e) "district Court" means, in any area for which there is a City Civil Court, that Court, and in any other area, the principal Civil Court of original jurisdiction and includes any other Civil Court which may be specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in this Act;]

(/) “prescribed” means prescribed by rules made under this Act;

⁷[(g) "State Government", in relation to a Union territory, means the administrator thereof.]

2. Substituted by Act 33 of 1969, S. 29, for “outside the said territories” (w.e.f. 31-8-1969).

3. Brought into force on 1st January, 1955.

4. Cl. (a) omitted by Act 33 of 1969, S. 29 (w.e.f. 31-8-1969).

5. Cl. (c) omitted by Act 33 of 1969, S. 29 (w.e.f. 31-8-1969).

6. Substituted by Act 68 of 1976, S. 20 (w.e.f. 27-5-1976).                                                                        

7. Substituted by the Adaptation of Laws (No. 3) Order, 1956.

3. Marriage Officers.—(1) For the purposes of this Act, the State Government may, by notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State.

⁸[(2) For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends, who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers of the State or any part thereof.]

CHAPTER II SOLEMNIZATION OF SPECIAL MARRIAGES

4. Conditions relating to solemnization of special marriages.— Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:—

(a) neither party has a spouse living;                                                                   

⁹[(b) neitherparty—                                                                             

(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(it) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the protection of children; or

(Hi) has been subject to recurrent attacks of insanity ^1C[* * *];] (c) the male has completed the age of twenty-one years and the female the age of eighteen years;

ⁿ[(cf) the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits of   a   marriage   between   them,   such   marriage   may   be   solemnized, notwithstanding that they are within the degrees of prohibited relationship; and

^u[(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.]

^[Explanation.—In this section, “custom”, in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family:

Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied—

(/) that such rule has been continuously and uniformly observed for a long time among those members;

8. Substituted by Act 33of 1969, S. 29 (w.e.f. 31-8-1969).

9. Substituted by Act 68 of!976,S. 21 (w.e.f. 27-5-1976).

10.Thewords”orepilepsy”omittedbyAct39ofl999,S.3(w.e.f.29-12-1999).        

11. SubstitutedbyAct32ofl963,S. 2(w.e.f.22-9-1963).  

12. Substituted by Act 33 of 1969,5. 29 (w.e.f. 31-8-1969).                                                                                                

13. Inserted by Act 32 of 1963, S. 2 (w.e.f. 22-9-1963).

abusing her in the coarsest and most insulting language, and beating her with his fists, with a cane, or with some other weapon.

4. That on an evening in or about the month of………………………… the said C.B., in the

highway and opposite to the house in which your petitioner and the said C.B., were then residing at………………………..aforesaid, endeavored to knock your petitioner down, and was

only prevented from so doing by the interference of F.D., your petitioner’s brother.

5.  That  subsequently on  the  same  evening,  the  said  C.B.,   in  his  said  house at……………………………..aforesaid, struck your petitioner with his clenched fists a violent blow

on her face.

6. That on one Friday night in the month of………………………. the said C.B., in……………………

without provocation, threw a knife at your petitioner thereby inflicting a severe wound on

her right hand

7. That on the afternoon of the………………………..day of………………………… your petitioner,

by reason of the great and continued cruelty practiced towards her by her said husband, with assistance withdrew from the house of her said husband to the house of her father at………………………… that from and after the said………………………..day of…………………………

your petitioner hath lived separate and apart from her said husband and hath never returned to his house or to cohabitation with him.

8. That there is no collusion or connivance between your petitioner and her said husband with respect to the subject of the present suit.

Your petitioner, therefore, prays that this (Hon’ble) Court will decree a judicial separation between your petitioner and the said C.B., and also order that the said C.B., do pay the costs of and incident to these proceedings.

(Signed)AB.

Form of verification.—See No. 1

State Amendment—[Uttar Pradesh].—In Form No. 8, the words and the brackets “(High)”, “(Hon’ble)” and “(or To the Judge of)” and the words “To the Hon’ble Mr. Justice”, shall be omitted.—U.P. Act XXX of 1957.

No. 9—STATEMENT IN ANSWERS TO NO. 8

In the (High) Court of………………………………………………………………………………..

The………………………………… day of………………………………….       

Between A.B., petitioner, and C.B., respondent.

C.B., the respondent, in answer to the petition filed in this cause, by W./., his attorney, [or vakil], saith that he denies that he has been guilty of cruelty towards the said A.B., as alleged in the said petition.

       (Signed) C.B.

State Amendment—[Uttar Pradesh].—In Form No. 9, the word and the brackets “(High)” shall be omitted.—U.P. Act XXX of 1957.

No. 10—PETITION FOR REVERSAL OF DECREE OF SEPARATION

(See section 24) In the (High) Court oL……………………………………………J.:……..^………………………….I.

To the Hon’ble Mr. Justice……………………………………….. [or To the Judge of..........

The.............................day of.............................                                                               

The petition of A.B. of.............................

                                                             DIVORCE ACT, 1869                                                 

sheweth,                                                                                                     .

1. That your petitioner was on the.............................day of.............................. lawfully

married to.............................

2. That on the............................... day of................................ this (Hon'ble) Court, at the

petition of.................................pronounced a decree affecting the petitioner to the effect

following, to wit,—

[Here set out the decree]

3. That such decree was obtained in the absence of your petitioner, who was then residing at…………………………………………………………………………….

[State facts tending to show that the petitioner did not know of the proceedings; and further, that had he known he might have offered a sufficient defence. ]

or

That there was reasonable ground for your petitioner leaving his said wife, for that his said wife………………………..

[Here stateany legal ground justifying the petitioner's separation from his wife.] Your petitioner, therefore, prays that this (Hon’ble) Court will reverse the said decree,

(Signed) AB.
>                                                      Form of verification.—See No. 1

State Amendment—[Uttar Pradesh].—In Form No. 10, the words and the brackets “(High)” “(or To the Judge of)” and “(Hon’ble)” and the words “To the Hon’ble Mr. Justice”, shall be omitted.—U.P. Act XXX of 1957.

No. 11—PETITION FORPROTECTION ORDER

                                 (See section 27)
In the (High) Court of..………………^…………………………………………………………………………………..

To the Hon’ble Mr. Justice……………………………………. ….[or To the Judge of...........................]

The………………………..day of………………………..                                                                                                   

The petition of C.B. of  the wife of AB.     

sheweth,

That on the……………………………..day of…………………………..she was lawfully married to AB.

at…………………………….                                                                                                                                                              

That   she   lived   and   cohabited   with   the   said   AB.,   for………………………..years

at………………………..and also at………………………… and .hath had………………………..children, issue

of her said marriage, of whom………………………..are now living with the applicant, and *

wholly dependent upon her earnings.

That on or about………………………… the said AB., without any reasonable cause, deserted

the applicant and hath ever since remained separate and apart from her.

That since the desertion of her said husband, the applicant hath maintained herself by her own industry [or on her own property, as the case may be], and hath thereby and* otherwise acquired certain property consisting of [here state generally the nature of the property.]

Wherefore she prays an order for the protection of her earnings and property acquired since the said………………………..day of………………………..from the said AB., and from all

creditors and persons claiming under him.

State Amendment—[Uttar Pradeshl.—In Form No. 11, the words and the brackets "(High)" and "(or To the Judge of)" and the words "To the Hon'ble Mr. Justice", shall be omitted.—U.P. ActXXXof 1957.

(Signed) C.B.

No. 12—PETITION FOR ALIMONY PENDING THE SUIT

(See section 36) In the (High) Court of............................................................................................    

B against B                                                                                     

To the Hon'ble Mr. Justice............................................... [or To the Judge of ............,,..„.........]

The………………………..day of………………………..

The petition of C.B., the lawful wife of A.B.                  
sheweth,                                                                                                                          

1. That the said A.D., has for some years carried on the business of………………………..

at………………………… and from such business derives the net annual income of from Rs. 4,000

to 5,000.

2. That the said A.B., is possessed of plate, furniture, linen and other effects at his said house………………………..aforesaid, all of which he acquired in right of your petitioner as his

wife, or purchased with money he acquired through her, of the value of Rs. 10,000.

3. That the said A.B., is entitled, under the will of his father, subject to the life interest of his mother therein, to property to the value of Rs. 5,000 or some other considerable amount.*

Your petitioner, therefore, prays that this (Hon’ble) Court will decree such sum or sums of money by way of alimony, pending the suit, as to this (Hon’ble) Court may seem meet.

(Signed) C.E.

form of verification.—See No. 1

State Amendment—[Uttar Pradesh].—In Form No. 12, the words and the brackets “(High)” “(or To the Judge of)” and “(Hon’ble)” and the words “To the Hon’ble Mr. Justice”, shall be omitted.—U.P. Act XXX of 1957.

* The petitioner should state her husband’s income as accurately as possible.     

                                 No. 13—STATEMENT IN ANSWER TO NO. 12                                                  

In the (High) Court of………………………………………………………………………………..                                           

B against B^J

A.B., of………………………..the above-named respondent, in answer………………………..to the

petition for alimony, pending the suit of C.B. says:—

1. In answer to the first paragraph of the said petition, I say that I have for the last three years carried on the business of………………………..at………………………… and that, from such

business, I have derived a net annual income of Rs. 900, but less than Rs. 1,000.

2. In answer to the second paragraph of the said petition, I say that I am possessed of plate, furniture, linen and other chattels and effects at my said house………………………….

aforesaid, of the value of Rs. 7,000, but as I verily believe of no larger value. And I say that a portion of the said plate, furniture and other chattels and effects of the value of Rs. 1,500, belonged to my said wife before our marriage, but the remaining portions, thereof, I have since purchased with my own moneys. And I say that, save as hereinbefore set forth, I am not possessed of the plate and other effects as alleged in the said paragraph, in the said petition, and that I did not acquire the same as in the said petition also mentioned.

3.1 admit that I am entitled under the will of any father, subject to the life-interest of my mother therein, to property of the value of Rs. 5,000, that is to say, I shall be entitled under my said father’s will, upon the death of my mother, to a legacy of Rs. 7,000 out of which I shall have to pay to my father’s executors the sum of Rs. 2,000, the amount of a debt owing by me to his estate, and upon which debt I am now paying interest at the rate of five per cent, per annum.

4. And, in further answer to the said petition, I say that I have no income whatever except that derived from my aforesaid business, that such income, since my said wife left me which she   did   on   the………………………..day   of………………………..last,   has   been   considerably

diminished, and that such diminution is likely to continue. And I say that out of my said income, I have to pay the annual sum of Rs. 100 for such interest as aforesaid to my late father’s executors, and also to support myself and my two eldest children.

5. And, in further answer to the said petition, I say that, when my wife left my dwelling-house on the………………………..day of………………………..last, she took with her, and has ever

since withheld and still withholds, from me, plate, watches and other effects in the second paragraph of this my answer mentioned, of the value of, as I verily believe, Rs. 800 at the least; and I also say that, within five days of her departure from my house as aforesaid, my said wife received bills due to me from certain lodgers of mine, amounting in the aggregate toRs…………………………and that she has ever since withheld and still withholds from me the

same sum.                             

(Signed)AB.

State Amendment—[Uttar Pradesh].—In Form No. 13 and 14, the word and brackets “(High)”, shall be omitted.—U.P”. Act XXX of 1957.

No. 14—UNDERTAKING BY MINOR’S NEXT FRIEND TO BE ANSWERABLE .
^:                                                                                 FOR RESPONDENT’S COSTS

(See section 49)                          . .                             
In the (High) Court of………………………………………………………………………………..

I, the undersigned A.B., of………………………..being the next friend of C.D., who is a minor,

and who is desirous of filing a petition in this Court, under the Indian Divorce Act, against D.D. of………………………..hereby undertake to be responsible for the costs of the said D.D., in

such suit, and all that, if the said C.D. fail to pay to the said D.D. when and in such manner as the Court shall order such costs of such suit as the Court shall direct him (or her) to pay to the said D.D., I will forthwith pay the same to the proper officer of this Court.

Dated this…………………………….day of……………………………..

(Signed) A.B.

State Amendment—[Uttar Pradesh].—SeeFormNo.13.

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 rules⁶¹ 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 ⁶²[Code of Civil Procedure, 1908 (5 of 1908).]

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

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.......:.....................

The petition of A.B., of                                                                                                          
sheweth,                                                                                                        

1. That your petitioner was on the.............................day of.............................was lawfully

married to C.B., then CD., spinster, at.............................*          

2. That from his said marriage, your petitioner lived and cohabited with his said wife at............................and at............................in...........................and lastly at.............................

in.............................and that your petitioner and his said wife have had issue of their said

marriage,................................... children, of whom................................sons only survive, aged

respectively.............................and.............:...............years.

3. That during the.............................years immediately preceding the.............................day

of.....................................X.Y., was constantly, with few exceptions, residing in the house of

your petitioner at.............................aforesaid, and that on diverse occasions during the said

period, the dates of which are unknown to your petitioner, the said C.B., in your petitioner's
said house committed adultery with the said X.Y.                                                                       ]

I 4. That no collusion or connivance exists between me and my said wife for the purpose of • obtaining a dissolution of our said marriage or for any other purpose.

Your petitioner, therefore, prays that this (Hon’ble) Court will decree a dissolution of the said marriage and that the said X.Y., do pay the sum of rupees 5,000 as damages by reason of his having committed adultery with your petitioner’s said wife, such damages to be paid to your petitioner, or otherwise paid or applied as to this (Hon’ble) Court seems fit.

(Signed) A.B.** Form of verification

I., A.E., the petitioner named in the above petition, do declare that what is stated therein is true to the best of my information and belief.

61. For rule in force in Bombay as to confirmation of decrees for dissolution of marriage, see Bom. R. &O.

62. Substituted by Act 51 of 2001, S. 31, for “Code of Civil Procedure” (w.e.f. 3-10-2001).

State Amendment—[Uttar Pradesh],—(1) In Form No. 1—(z) the words and the brackets (”High”) and “(or To the Judge of)” and the words “To the Hon’ble Mr. Justice” shall be omitted; (if) the words and brackets “(Hon’ble)” wherever occurring, shall be omitted.— U.P. Act XXX of 1957.

* If the marriage was solemnized out of India, the adultery must be shown to have been committed in India

** The petition must be signed by the petitioner.

No. 2—RESPONDENT’S STATEMENT IN ANSWER TO NO. 1. In the Court of…………………………..the…………………………..day of…………………………..

Between A.B., petitioner                                                                      V

C.B., respondent, and                          

X.Y., co-respondent.                                            

C.B., the respondent, by D.E., her attorney [or vakil], in answer to the petition of A.B., says that she denies that she has on diverse or any occasions committed adultery with X.Y., as alleged in the third paragraph of the said petition.

Wherefore the respondent prays that this (Hon’ble) Court will reject the said petition.

(Signed) C.B.

State Amendment—[Uttar Pradesh].—In Form No. 2, the words and the brackets “(Hon’ble)” shall be omitted.—U.P. Act XXX of 1957.

No. 3—CO-RESPONDENT’S STATEMENT IN ANSWER TO NO. 1.

In the (High) Court of…………………………..the…………………………..day of…………………………..

Between A.B., petitioner

C.B., respondent, and

X.Y., co-respondent.

X.Y., the co-respondent, in answer to the petition filed in this cause, saith that he denies that he committed adultery with the said C.B., as alleged in the said petition.

Wherefore the said X.Y., prays that this (Hon’ble) Court will reject the prayer of the said petitioner and order him to pay the costs of and incident to the said petition.

(Signed) X.Y.

State Amendment—[Uttar Pradesh].—In Form No. 3, the words and the brackets “(High)” and “(Hon’ble)” shall be omitted.—U.P. Act XXX of 1957.

No. 4—PETITION FOR DECREE OF NULLITY OF MARRIAGE

(See section 18) In the (High) Court of……………………………………………………………………………………………………..

To the Hon’ble Mr. Justice………………………………………..or To the Judge of I………………………]

The………………………..day of…:…………………….                      

The petition of A.B., falsely called AD. sheweth,

1. That on the………………………..day of………………………..your petitioner then a spinster,

eighteen years of age, was married in fact, though not in law, to C.D., then a bachelor of about thirty years of age, at [someplace in India].

2. That from the said…………………………………..day of………………………………….until the month

of…………………………………… your petitioner lived and cohabited with the said C.D., at diverse

places, and particularly a t………………………..aforesaid.

3. That the said CD., has never consummated the said pretended marriage by carnal copulation.

4. That at the time of the celebration of your petitioner’s said pretended marriage the said C.D. was, by reason of his impotency or malformation, legally incompetent to enter into the contract of marriage.

5. That there is no collusion or connivance between her and the said CD., with respect to the subject of this suit.

Your petitioner therefore prays thafr this (Hon’ble) Court will declare that the said marriage is null and void.

                                                        (Signed) AB

Form of verification.—SeeNo.l.

State Amendment—[Uttar Pradesh].—In Form No. 4, the words and the brackets
“(High)”, “(or To the Judge of)”, and “(Hon’ble)” and the words “To the Hon’ble Mr.
Justice”, shall be omitted .—UP. Act XXX of 1957.

No. 5—PETITION BY WIFE FOR JUDICIAL SEPARATION ON THE GROUND OF HER HUSBAND’S ADULTERY

(See section 22) In the (High) Court of……………………………………………………………………………………………………..

      To the Hon’ble Mr. Justice……………………………………….. [or To the Judge of..,........................]

The………………………..day of………………………..

The petition of AS., of……………………….. thewifeqf A.B.                                                                                                             

sheweth,                                                                                                                        

1. That on the…………………………..day of…………………………..your petitioner, then CD., was

lawfully married to AB., at the Church of……………………….in tne……………………….

2.  That after her said  marriage, your petitioner cohabited with  the said A.B., at……………………….and at……………………….and that your petitioner and her said husband have

issue living of their said marriage……………………….children to wit, etc., etc.*

3. That on diverse occasions in or about the months of……………………….. the said A.B.,

at……………………….aforesaid, committed adultery with E.F., who was then living in the

service of the said A.B., and your petitioner at their said residence………………………. aforesaid.

4. That on diverse occasions, in the months of………………………. and ……………………….the

said AiB., at……………………….aforesaid, committed adultery, with G.H., who was then living

in the service of the said A.B., and your petitioner at their said residence……………………….

aforesaid.

5. That no collusion or connivance exists between your petitioner and the said AB., with respect to the subject of the present suit.

Your petitioner therefore prays that this (Hon’ble) Court will decree a judicial separation to your petitioner from her said husband by reason of his aforesaid adultery.

(Signed) C.B.**
Form of verification.—SeeNo.l
State Amendment—f Uttar Pradesh].—See Form No. 4.                                                                                               

* State the respective ages of the children.              

** The petition must be signed by the petitioner.                                                   

No. 6—STATEMENT IN ANSWER TO NO. 5

In the (High) Court of..………………………………………………………………….J…”………

B against B \     The……………………………….. day of.. ……………………………….

     The respondent AB., by W.Y., his attorney [or vakil], saith,—

1. That he denies that he committed adultery with E.F., as in the third paragraph of the petition alleged, |   

2. That the petitioner condoned the said adultery with E.F., if any.

3. That he denies that he committed adultery with G.H., as in the fourth paragraph of the petition alleged.

I      4. That the petitioner condoned the said adultery with G.H., if any.

Wherefore this- respondent prays that this (Hon’ble) Court will reject the prayer of the said petition.

                                                                                                                                     (Signed) AB.

State Amendment—[Uttar Pradesh].—In Form No. 6, the words and the brackets
“(High)” and “(Hon’ble)”, shall be omitted.—U.P. Act XXX of 1957.                                                                                  

No. 7—STATEMENT IN REPLY TO NO. 6                                                                                      
In the (High) Court of………………………………………………………………………………..

B against B The…………………………………day of………………………………….

The petitioner, C.B., by her attorney [or vakil], says,—

1. That she denies that she condoned the said adultery of the respondent with E.F., as in the said paragraph of the statement in answer alleged.

2. That even if she had condoned the said adultery, the same has been revived by the subsequent adultery of the respondent with G.H., as set forth in the fourth paragraph of the petition.

         (Signed)CB.

State Amendment—[Uttar Pradesh].—In Form No. 7, the word and the brackets “(High)”, shall be omitted.—U.P. Act XXX of 1957.

No. 8—PETITION FOR A JUDICIAL SEPARATION BY REASON OF CRUELTY

(See section 22) In the (High) Court of…………………………………………….’……………………………………………….’………

To the Hon’ble Mr. Justice……………………………………….. [or To the Judgeof...........................]

The………………………..day of………………………..

The petition of«AB. (wife of C.B.) of…………………………

 sheweth,

1. That on the………………………..day of………………………..your petitioner, thenAD., spinster,

was lawfully married to C.B., at………………………..

2. That from her said marriage, your petitioner lived and cohabited with her said husband at……………………….until the………………………..day of………………………… when your

petitioner separated from her said husband as hereinafter more particularly mentioned, and that your petitioner and her said husband have had no issue of their said marriage.

3. That from and shortly after your petitioner’s said marriage, the said C.B., habitually conducted himself towards your petitioner with great harshness and cruelty, frequently

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.—⁴⁸[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 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 placing 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.

State Amendment—[Uttar Pradesh].—(1) In the first paragraph for the words “High Court”, the word “Court” shall be substituted. (2) The second paragraph, i.e., the words “and the District Court, after a decree for dissolution of marriage or of nullity of marriage has been confirmed ” shall be omitted—U.P. Act XXX of 1957.

XII—PROCEDURE                                           

45. Code of Civil Procedure to apply.—Subject to the provisions herein contained, all proceedings under this Act between the party and party shall be regulated by the ⁴⁹[Code of Civil Procedure, 1908 (5 of 190S)].

Objects and Reasons—Clause 27.—This clause seeks to amend section 45 of the Act relating to application of the Code of Civil Procedure by specifying the particulars of the present Code.

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 ⁵⁰[* * *] shall ⁵⁰[* * *] 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)

48. Substituted by Act 51 of 2001, S. 26, for “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” (w.e.f. 3-10-2001).

49. Substituted by Act 51 of 2001,5.27, for “Codeof Civil Procedure” (w.e.f. 3-10-2001).

50. 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 the words “in the first, second, and third cases mentioned in this section”, respectively, repealed by the Court-fees Act (VII of 1870). For Court-fee, see Art. 7 of Sch. II to that Act.

————————————————————————————————————————-

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 ⁵¹[* * *] 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 ⁵²[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.

State Amendment—[Uttar Pradesh],—For the words “High Court by general or special order from time to time directs”, the words “Court may direct” shall be substituted.—U.P. Act XXX of 1957.

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 ⁵³[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.

Objects and Reasons—Clause 28.—This clause seeks to amend section 52 of the Act as consequential to the changes made in section 10.

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.

———————————————————————————————

51. The words “shall bear a stamp of eight annas, and” repealed by Court-fees Act (VTI of

      1870), Sch. II, Art. 7.

      52. Substituted by A.0.1950.

53. Substituted by Act 51 of 2001, S. 28, for “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” (w.e.f. 3-10-2001).

—————————————————————————————————————

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.—All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed⁵⁴ 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:

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

Objects and Reasons—Clause 29.—This clause seeks to amend section 55 of the Act so as to allow an appeal from a decree of a District Judge for dissolution of marriage or nullity of marriage.

56. Appeal to ⁵⁷[the Supreme Court].—Any person may appeal to ⁵⁸fthe 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 deckres that the case is a fit one for appeal to ^M[the Supreme Court].

XIII—RE-MARRIAGE                        _{:                         :}.

^5e[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

54. For Court-fee on memorandum of appeal, see Art. 7 of Sch. n, to the Court-fees Act (VII of 1870).

55. Proviso omitted by Act 51 of 2001, S. 29 (w.e.f. 3-10-2001), Prior to its omission, the Proviso read as under:—

"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".

56. Substituted by Act 51 of 2001,8.29, for "Provided also" (w.e.f. 3-10-2001).  

57. Substituted by A.0.1950.

58. Substituted by Act 51 of 2001, S. 30, for S. 57 (w.e.f. 3-10-2001). Prior to its substitution, S. 57 read as under:—

"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,                                             
.;₆or when in the result of any such appeal any 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:

Provided that no appeal to [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 many again as if the prior.marriage had been dissolved by death.”

———————————————————————————————————————

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 ⁵⁹[*] Church of England ⁶⁰[* *] 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 ⁵⁹[*] Church
refuses to perform such marriage-service between any person 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 reversal, discharge or variation thereof.

Indemnity of persons making payment to wife without notice of reversal or 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.

59. The word “United” repealed by the Repealing Act 12 of 1873.

60. The words “and Ireland” repealed by the Repealing Act 12 of

wife incurred, entered into or done between the times of the sentence of separation and of the reversal thereof.

VI—PROTECTION ORDERS

27. Deserted wife may apply to Court for protection.—Any wife to whom section 4 of the Indian Succession Act, 1865 (10 of 1865)³⁵, does not apply, may, when deserted by her husband, present a petition to the District Court ³⁶[* * *], at any time after such desertion, for an order to protect any property which she may have acquired, or may acquire, and any property of which she may have become possessed or may become possessed after such desertion, against her husband or his creditors, or any person claiming under him.

28. Court may grant protection order.—The Court, if satisfied of the fact of such desertion, and that the same was without reasonable excuse, and that the wife is maintaining herself by her own industry or property, may make and

ive to the wife an order protecting her earnings and other property from her usband and all creditors and persons claiming under him. Every such order shall state the time at which the desertion commenced, and shall, as regards all persons dealing with the wife in reliance thereon, be conclusive as to such time.

29. Discharge or variation of orders.—The husband or any creditor of, or person claiming under him, may apply to the Court by which such order was made for the discharge or variation thereof, and the Court, if the desertion has ceased, or if for any other reason it thinks fit so to do, may discharge or vary the order accordingly.

30. Liability of husband seizing wife’s property after notice of order.—If

the husband, or any creditor of, or person claiming under, the husband seizes or continues to hold any property of the wife after notice of any such order, he shall be liable, at the suit of the wife (which she is hereby empowered to bring), to return or deliver to her the specific property, and also to pay her a sum equal to double its value.

31. Wife’s legal position during continuance of order.—So long as any such order of protection remains in force, the wife shall be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation.

VII—RESTITUTION OF CONJUGAL RIGHTS

32. Petition for restitution of conjugal rights.—When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court ³⁶[* * *], for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

33. Answer to petition.—Nothing shall be pleaded in answer to a petition for restitution of conjugal rights, which would not be ground for a suit for judicial separation or for a decree of nullity of marriage.

35. Now see the Indian Succession Act, 1925 (39 of 1925).

36. The words “or the High Court” omitted by Act 51 of 2001, S. 18 (w.e.f. 3-10-2001).                   

VIII—DAMAGES AND COSTS

³⁷34. Husband may claim damages from adulterer.—[Omitted by the Indian Divorce (Amendment) Act,2001 (510/2001), section 19 (w.e.f. 3-10-2001).]

³⁸35. Power to order adulterer to pay costs.—[Omitted by the Indian Divorce (Amendment) Act, 2001 (510/2001), section 20 (w.e.f. 3-10-2001).]

IX—ALIMONY

36. Alimony pendente lite.—In any suit under this Act, whether it be. instituted by a husband or a wife, and whether or not she has obtained an order of protection, ³⁹[the wife may present a petition for expenses of the proceedings and alimony pending the suit].

Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband ⁴⁰[for payment to the wife of the expenses of the proceedings and alimony pending the suit] as it may deem just:

37. Prior to its omission, S. 34 read as under:—

“34. Husband may claim damages from adulterer.—Any husband may, either in a petition for dissolution of marriage or for judicial separation, or in a petition to the District Court or the High Court limited to such object only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner.

Such petition shall be served on the alleged adulterer and the wife, unless the Court dispenses with such service, or directs some other service to be substituted.

The damages to be recovered on any such petition shall be ascertained by the said Court, although the respondents or either of them may not appear.

After the decision has been given, the Court may direct in what manner such damages shall be paid or applied.”

38. Prior to its omission, S. 35 read as under:—                                                                                                              

“35. Power to order adulterer to pay costs.—Whenever in any petition presented by a husband, the alleged adulterer has been made a co-respondent, and the adultery has been established, the Court may order the co-respondent to pay the whole or any part of the costs of the proceedings:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs—

(1) if the respondent was, at the time of the adultery, living apart from her husband and leading the life of a prostitute, or

(2) if the co-respondent had not, at the time of the adultery, reason to believe the respondent to be a married woman.

Power to order litigious intervenor to pay costs.—Whenever any application is made under section 17, the Court, if it thinks that the applicant had no grounds or no sufficient grounds for intervening, may order him to pay the whole or any part of the costs occasioned by the application.”

39. Substituted by Act 49 of 2001, S. 2, for “the wife may present a petition for alimony pending the suit” (w.e.f. 24-9-2001).

40. Substituted by Act 49 of 2001, S. 2, for “for payment to the wife of alimony pending the suit” (w.e.f. 24-9-2001).

41. Proviso omitted by Act 51 of 2001, S. 21 (w.e.f. 3-10-2001). Prior to its omission, the Proviso read as under:—

“Provided that alimony pending the suit shall in no case exceed one-fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be:”

⁴²[Provided that the petition for the expenses of the proceedings and alimony pending the suit, shall, as far as possible, be disposed of within sixty days of service of such petition on the husband.]

37. Power to order permanent alimony.—^[Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband shall] to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties.

Power to order monthly or weekly payments.—In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit.

38. Court may direct payment of alimony to wife or to her trustee.—In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court expedient, so to do.

X—SETTLEMENTS                                                    

⁴⁴39. Power to order settlement of wife’s property for benefit of husband and children.—[Omitted by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), section 23 (w.e.f. 3-10-2001).]________________________

42. Inserted by Act 49 of 2001, S. 2 (w.e.f. 24-9-2001).

43. Substituted by Act 51 of 2001, S. 22, for “The High Court may, if it thinks fit, on any
decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation
obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any
decree of his declaring a marriage to be dissolved, or on any decree of judicial separation
obtained by the wife; order that the husband shall” (w.e.f. 3-10-2001).                            

44. Prior to its omission, S. 39 read as under:—

“39. Power to order settlement of wife’s property for benefit of husband and children.— Whenever the Court pronounces a decree of dissolution of marriage or judicial separation for adultery of the wife, if it is made to appear to the Court that the wife is entitled to any property, the Court may, if it thinks fit, order such settlement as it thinks reasonable to be made or such property or any part thereof, for the benefit of the husband, or of the children of the marriage, or of both.

Any instrument executed pursuant to any order of the Court at the time of or after the pronouncing of a decree of dissolution of marriage or judicial separation shall be deemed valid notwithstanding the existence of the disability of coverture at the time of the execution thereof.

Settlement of damages.—The Court may direct that the whole or any part of the damages recovered under section 34 shall be settled for the benefit of the children of the marriage, or as a provision for the maintenance of the wife.”                                                         

40. Inquiry into existence of ante-nuptial or post-nuptial settlements.— ⁴⁵[The District Court may, before passing a decree for dissolution of the marriage or a decree of nullity of marriage, inquire into] the existence of ante­nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders, with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or of the children (if any) of the marriage, or of both children and parents, as to the Court seems fit:

Provided that the Court shall not make any order for the benefit of the parents or either of them at the expense of the children.

XI—CUSTODY OF CHILDREN      

41. Power to make orders as to custody of children in suit for separation.—In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court:

⁴⁶[Provided that the application with respect to the maintenance and education of the minor children pending the suit, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]

42. Power to make such orders after decree.—The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

43. Power to make orders as to custody of children in suits for dissolution or nullity.—⁴⁷[In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time to time before making its decree, make such interim orders as it may deem

45. Substituted by Act 51 of 2001, S. 23, for “The High Court, after a decree absolute for dissolution of marriage, or a decree of nullity of marriage, and the District Court, after its decree for dissolution of marriage or of nullity of marriage has been confirmed, may inquire into” (w.e.f. 3-10-2001).

46. Inserted by Act 49 of 2001, S. 3 (w.e.f. 24-9-2001).

47. Substituted by Act 51 of 2001, S. 25, for “In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in, or removed to, a High Court, the Court may from time to time, before making its decree absolute or its decree (as the case may be), make such interim orders, and may make such provision in the decree absolute or decree, and in any such suit instituted in a District Court, the Court may from time to time, before its decree is confirmed, make such interim orders, and may make such provision on such confirmation, as the High Court or District Court (as the case may be) deems proper” (w.e.f. 3-10-2001).

Objects and Reasons—Clause 11.—This clause seeks to amend section 16 of the Act. The amendment is consequential to the amendments made in section 17 of the Act to do away with the requirement of confirmation of decree of District Court by the High Court.

State Amendment—[Uttar PradeshJ.—(2) In the first paragraph the words "made by a High Court, not being a confirmation of a decree of a District Court" and "or special" shall be omitted. (2) In the second paragraph the words "or special" occurring between the words "general" and "order" shall be omitted. (3) In the fourth and fifth paragraphs for the words "High Court", the word "Court" shall be substituted.—U.P. Act XXX of 1957.

²⁸[17. Power of High Court to remove certain suits.—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 Court shall thereupon, if it thinks 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.]

Objects and Reasons—Clause 12.—This clause seeks to substitute section 17 relating to confirmation of decree for dissolution of marriages made by a District Judge by the High Court. At present every decree for a dissolution of marriage made by a District Judge is subject to confirmation by the High Court. In order to obviate the procedural delay and consequential hardship to the estranged couples, this clause seeks to do away with the requirement of confirmation by the High Court of such decrees. The amendment is on the lines suggested by the Law Commission of India in its 164th Report.

28. Substituted by Act 51 of 2001, S. 12, for S. 17 (w.e.f. 3-10-2001). Prior to its omission, S. 17 read as under:—

“17. Confirmation of decree for dissolution by District Judge.—Every decree for a dissolution of marriage made by a Dis trie! 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 thinks 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 thinks 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.”                                                                                                     

²⁹17-A. Appointment of officer to exercise duties of King’s Proctor.—

[Omitted by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), section 13 (w.e.f. 3-10-2001).]

Objects and Reasons—Clause 13.—This clause seeks to omit section 17-A of the Act relating to appointment of officers to exercise duties of King’s Proctor as it has become obsolete.

IV—NULLITY OF MARRIAGE

18. Petition for decree of nullity.—Any husband or wife may present a petition to the District ³⁰[* * *], praying that his or her marriage may be declared null and void.

Objects and Reasons—Clause 14.—This clause seeks to amend section 18 of the Act relating to petition for decree of nullity. The omission of the words “or to the High Court” as proposed in this clause is consequential to the amendment proposed in section 10.

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 idiot 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 the³¹ [jurisdiction of the District Court] to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

Objects and Reasons—Clause 15.—This clause seeks to amend section 19 of the Act as consequential to the amendment made in section 10 as regards the Court in which petition may be presented.

                           COMMENTS       

The Legislature did not use the directory or mandatory word “shall” in S. 19; the Court’s discretion to grant the decree for divorce and/or nullity of marriage remains unfettered: Rose Simpson v. Binimoy Biswas A.I.R. 1980 Cal. 214.

The impotency mus,t exist not only at the time of marriage but also at the time the proceedings are instituted: Jecronimo Francisco Sacrafamilla Eric D’Souza v. Florence Martha D’souza neeFernandesA.lR. 1980 Del. 275 (F.B.).

29. Prior to its omission, S. 17-A read as under:—                                                                                                      <

“17-A. Appointment of officer to exercise duties of King’s Proctor.—The Government of the State within which any High Court exercises jurisdiction, may appoint an officer who shall within the jurisdiction of the High Court in that State 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 Government 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,”

30. The words “or to the High Court” omitted by Act 41 of 2001, S. 14 (w.e.f. 3-10-2001.

31. Substituted by ActSl of 2001,S. 15, for “jurisdiction of the High Court” (w.e.f.3-10-2001).                                        

³²20. Confirmation of District Judge’s decree.—[Omitted by the Indian Divorce (Amendment] Act, 2001 (51 0/2001), section 16 (w.e.f. 3-10-2001).]

Objects and Reasons—Clause 16.—This clause seeks to omit section 20 of the Act relating to confirmation of decree of nullity of marriage by a District pudge. At present, every decree of nullity of marriage made by a District ludge shall be subject to confirmation by the High Court. In order to simplify the procedure and obviate delay and consequential hardship to estranged couples, it is proposed to do away with the requirement of confirmation.

                                COMMENTS                                                             

Where during the pendency of the reference, S. 20 of the Divorce Act was omitted by the Indian Divorce (Amendment) Act, 2001, and it was contended that there was no requirement of confirmation of the decree passed by the Court below, and in the circumstances, the reference had become redundant and infructuous, it was held that any amendment in the confirmation provision must also be held to be prospective unless otherwise provided in the amendment. There is no such clause in the amendment by which S 20 has simply been omitted, that is, deleted from the Divorce Act. It would, thus, follow that the deletion of S. 20 by the Indian Divorce (Amendment) Act, 2001 has no bearing on the pending proceedings: Larleyv. John A.I.R. 2004 Pat. 53 (F.B.).

21. Children of annulled marriage.—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 ³³[* * *] 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.

Objects and Reasons—Clause 17.—This clause seeks to amend section 22 of the Act. The amendment is consequential to the changes made in section 10.

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 ^M[* * *]; 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.

32. Prior to its omission, S. 20 read as under:—

“20. Confirmation of District Judge’s decree.—Every decree of nullity of marriage made by a District ludge shall be subject to confirmation by the High Court, and the provisions of section 17, clauses 1,2,3 and 4, shall mutatis mutandis apply to $uch decree.”

33. The words “without reasonable excuse” omitted by Act 51 of 2001, S. 17 (w.e.f. 3-10-2001).

34. The words “or the High Court” omitted by Act 51 of 2001, S. 18 (w.e.f. 3-10-2001).                                                                                                 

Objects and Reasons—Clause 18.—This clause seeks to omit the words “or the High Court” occurring in sections 23, 27 and 32 of the Act as consequential to changes made in section 10 relating to the Court in which petitions could be made.

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.

COMMENTS

A decree passed for judicial separation does not have the effect of a divorce in view of S. 22 of the Divorce Act though the decree has the effect of a divorce a mensa ettoro for the specific purposes mentioned under Ss. 24 and 25 of the Divorce Act: Thomas Kuriakose v. Abraham Mary A.I.R. 2004 Ker. 73.

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, 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

(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.

(2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.]

Objects and Reasons—Clause 5.—This clause seeks to provide the grounds of dissolution of marriage. Existing provisions of section 10 of the Act make a distinction between the husband and the wife in the matter of grounds on which they could obtain dissolution of marriage. While adultery, without any other ground, is a ground for seeking dissolution of marriage by the husband, in the case of the petition by the wife, there is in addition another requirement that it should be incestuous adultery or bigamy with adultery or adultery coupled with cruelty or desertion for two years. Certain High Courts including the High Court of Kerala have struck down the words “incestuous” and “adultery coupled with” in section 10 on the ground of gender inequality. (Ammini £./. v. Union of India A.I.R. 1995 Ker. 252 (S.B.); N. Sarada Mani v. G. Alexander A.I.R. 1988 Andh. Pra. 157 (S.B.)). This clause seeks to substitute the said section 10 with a new section providing same grounds for husband and wife for seeking dissolution of marriage. However, a wife may also get divorce on the ground that the husband has since the solemnization of marriage been guilty of rape, sodomy or bestiality.

At present a petition for dissolution of marriage could be presented either to the District
Court or to the High Court. It is proposed that the petition may henceforth be presented to
the District Court only. . .                                                 

COMMENTS

Simply because the matrimonial advertisement was given with a different address, it cannot be said to be a fraud when in response to the advertisement the wife’s father sent a letter, the husband’s father gave a detailed reply, wherein his address had been correctly noted: Av. B A.I.R. 2001 Ker. 71.

“Mutual consent” is not a ground for divorce under the S. l(2)(d) of the British
Matrimonial Causes Act, 1973, and thus, cannot be read into the Indian Divorce Act merely
because of S. 7. No legislation whenever made by a foreign Parliament can automatically
become incorporated in another sovereign State’s legislation: Reynold Rajamani v. Union of
IndwA.I.R.1982S.C1261:(1982)2S.CC.744.                                                                                          .

Adultery is a matrimonial offence when there is consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage: Dawn Henderson v. D. Henderson A.I.R. 1970 Mad. 104 (S.B.); Ka. ErsilianLyngdohv. U. Kordring Roy Sad A.I.R. 1986Gau.42.

It is not possible to import the definition of “adultery” found in S. 497 of the Indian Penal Code, while considering the provisions of the Indian Divorce Act. Thus, even where the husband was only having intercourse with a woman whom he had married and she not being the wife of another man, he could be said to have committed adultery: M.T. Carunya v. S.Joseph Chellapa (1996-1) 117 Mad.L.W. 130 (F.B.). n

What constitutes cruelty depends on circumstances of each particular case like the parties’ physical and mental condition, character and social status: Ka. Amal Lyngdoh v. U. Jabin Pakem A.I.R. 1987 Gau. 69.

It is established that adultery is not likely to be proved by direct evidence; it is proved mainly by circumstantial evidence and on the Court being satisfied about want of collusion and availability of opportunity to have guilty intercourse; it is, however, necessary to remember that the petitioner’s evidence must be such as would lead the guarded discretion of a reasonable and just man to reach the conclusion of adultery: Noreen Judith Sandhurst v. Reymond Bernard Sandhurst A.I.R. 1982Karn. 102(S.B.).                                           

²⁰[10-A. Dissolution of marriage by mutual consent.—(1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.]

²¹[11. Adulterer or adulteress to be co-respondent.—On a petition for dissolution of marriage presented by a husband or wife on the ground of adultery, the petitioner shall make the alleged adulterer or adulteress a co­respondent, unless the petitioner is excused by the Court from so doing on any of the following grounds, namely:—

(a) that the wife, being the respondent is leading the life of a prostitute or the husband, being respondent is leading an immoral life and that the petitioner knows of no person with whom the adultery has been committed;

(b) that the name of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has made due efforts to discover it;

(c) that the alleged adulterer or adulteress is dead.]                        

Objects and Reasons—Clause 7.—This clause seeks to substitute existing section 11 with the addition of the words “or adulteress” to cover cases where the wife sues the husband for divorce on the ground of adultery. The amendment is consequential to the amendments made in the grounds of divorce under section 10.

COMMENTS

S. 11 is mandatory. There are three exceptions to the requirements. Even in a case where these exceptions apply, there is an obligation on the petitioner to seek the leave of the Court for not impleading the alleged adulterer as co-respondent: K. Kumar Raju v. K. Umamaheshwari A.I.R. 1995 Andh. Pra. 222 (S.B.).

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

20. Inserted by Act 51 of 2001, S. 6 (w.e.f. 3-10-2001).

21. Substituted by Act 51 of 2001, S. 7, for S. 11 (w.e.f. 3-10-2001). Prior to its substitution, S. 11 read as under:—

“II. 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 discover it;                                                                

(3) that the alleged adulterer is dead.”          

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 enquire into any counter-charge 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 committed,

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.       

Objects and Reasons—Clause 8.—This clause seeks to amend section 13 of the Act so as to do away with the enabling provision for presenting a petition for dissolution of marriage to the High Court after such a j. etition has been dismissed by the District 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

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 lo wards 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 wilful 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 cohabitation has been resumed or continued.

22. Last paragraph of S. 13 omitted by Act 51 of 2001, S. 8 (w.e.f. 3-10-2001). Prior to its omission, the paragraph read as under:—

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

23. The words “in the manner and subject to all the provisions and limitations in sections 16 and 17 made and declared” omitted by Act 51 of 2001, S. 9 (w.e.f. 3-10-2001).

Objects and Reasons—Clause 9.—This clause seeks to amend section 14 of the principal Act. The amendment is consequential to the amendments made in sections 16 and 17 of the Act.

COMMENTS

The standard of proof required for divorce under the Act is that “the Judge should be satisfied beyond any reasonable doubt as to the commission of the matrimonial offence”, a clear requirement of S. 14. Thus, where neither the quantity nor quality of evidence on record justified grant of divorce, held, the mere fact that the respondent had not chosen to contest the proceedings would in no way permit lowering down of the standard of proof required for the grant of such a decree: Deepak Bakshi v. Anita Mariene Faria Bakshi A.I.R. 1985 P.&H. Ill (S.B.).

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, ²⁴[* * *], or, in case of such a suit instituted by a wife, on the ground
of ²⁵[her adultery, cruelty or desertion], 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
²⁶[ such adultery, cruelty] or desertion.                                        

Objects and Reasons—Clause 10.—This clause seeks to amend section 15 of the Act. The amendment are consequential to the changes made in the grounds of divorce under section 10.

16. Decrees for dissolution to be nisi.—Every decree for a dissolution of marriage made by a High Court, ²⁷[* * *] shall, in the first instance, be a decree nisi, not to be 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, including 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.

24. The words “without reasonable excuse” omitted by Act 51 of 2001, S. 10 (w.e.f. 3-10-2001).

25. Substituted by Act 51 of 2001, S. 10, for “her adultery and cruelty” (w.e.f. 3-10-2001).

26. Substituted by Act 51 of 2001, S. 10, for “such cruelty” (w.e.f. 3-10-2001).

27. The words “not being a confirmation of a decree of a District Court” omitted by Act 51 of 2001, S. 11 (w.e.f. 3-11-2001).

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.]

COMMENTS

The Act applies to Nagaland also: Nikoto Senw v. Kani Li Kini Limi (1986) 1 Hindu L.R. 614 (Gau.).

The Indian Divorce Act, 1869 can be invoked to dissolve the marriage between the parties professing Christian religion and who are domiciled in India, even if the marriage was solemnized out of India: Vincent Joseph Konath v. Jadntha Angela Vincent Konath A.I.R. 1994 Bom. 120.

The two requirements for filing a petition for a decree of nullity of marriage are: (i) the marriage having been solemnized in India; and (ii) the petitioner being resident in India when the petition is presented: Mary Kurian v. T.T. Joseph A.I.R. 1980 Ker. 131 (D.B.).

The Act does not require that the parties’ marriage should have been solemnized in any particular form; it is sufficient that one of the parties was a Christian when the petition was filed: Pramilla Khosla v. Rajnish Kumar Khosla A.I.R. 1979 Del. 78. But see G. Packia Raj v. P. Subbammal A.I.R. 1991 Mad. 319 (S.B.), where marriage between a Hindu and a Christian was performed according to “seethirutha” form of marriage, held, the marriage being not valid, no relief could be claimed under S. 10 of the Divorce Act.

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;

(c) in Manipur and Tripura, the High Court of Assam;¹¹

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

(e) in the ¹²[Lakshadweep], the High Court of Kerala;

^I3[(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;]

(2) “District Judge”. — “["District Judge" means a Judge of a principal civil Court of original jurisdiction however designated;]

8. Substituted by the Adaptation of Laws (No. 2) Order, 1956

9. Substituted by Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1968, with effect from 1st November, 1966.

10. Cl.^bb) omitted by Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1973, with retrospective effect from 25th January, 1971 .

11. Now Gauhati High Court.

12. Substituted by Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974, with retrospective effect from 1st November, 1973.

13. Inserted by the Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968, with effect from 1st November, 1966.

14. Substituted by A.0. 1950.

(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, ¹⁵[or of whose jurisdiction under this Act 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;                                                                                               

(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 ¹⁷[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.

Objects and Reasons — Clause 3. — It is proposed to remove gender inequality in the matter of grounds of divorce as available to husband and wife under section 10 of the Act by substituting that section vide clause 4 of the Bill. As the expressions “incestuous adultery” and “bigamy with adultery” as occurring in section 10 of the Act will no longer be in the said section, these expressions have become redundant. This clause, therefore, seeks to omit the definitions of those expressions.

      COMMENTS     

A petition for a decree of nullity of marriage for the consent of either party having been
obtained by force or fraud has necessarily to be heard by the High Court which alone has the
exclusive jurisdiction in that behalf; it is difficult to comprehend that the statute makes
available such a ground only to a limited class of persons residing in the limits of the High
Court’s original civil jurisdiction; thus, where neither of the parties to the marriage had
resided within such limits of the Bombay High Court but had last resided at a place outside
such limits, held, the Bombay High Court had jurisdiction to entertain the petition under
S 19:^v.BA.IR.1993Bom.61.                                                                              

15. Substituted by Act 51 of 2001, S. 3, for “or of whose jurisdiction under this Act” (w.e.f., 3-10-2001).

16. Cls. (6) and (7) omitted by Act 51 of 2001, S. 3 (w.e.f. 3-10-2001). Prior to their omission, Cls. (6) and (7) read as under: —

“(6)” Incestuous adultery”. — “incestuous adultery” means adultery commilled 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 consanguinity (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;”

17. Substituted by A.0. 1950.                              

                                                                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 matrimonial jurisdiction, respectively, in any cause or matter matrimonial, may be enforced and dealt with by the said High Courts, respectively, 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 matrimonial, which when this Act comes into operation are pending in any I ligh 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.

¹⁸7. Court to act on principles of English Divorce Court.—[Omitted by the Indian Divorce (Amendment) Act, 2001 (51 of'2001), section 4 (w.e.f. 3-10-2001)]

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 proceeding, and transfer it for trial or disposal to the Court of any other such District Judge.

9. Reference to High Courts.—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.

18. Prior to its omission, S. 7 read as under:—

“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 hereunder, 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:

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.                                                  

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

¹⁹[10. Grounds for dissolution of marriage.—(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent—

(z) has committed adultery; or                                              

(ii) has ceased to be Christian by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

(v) has, for a period of not less than two years immediately
preceding the presentation of the petition, been suffering from venereal
disease in a communicable form; or                                                         

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

(vii) has willfully refused to consummate the marriage and the marriage has not therefore been consummated; or

(viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or

(ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or

19. Substituted by Act 51 of 2001, S. 5, for S. 10 (w.e.f. 3-10-2001). Prior to its substitution, S. 10 read as under:—

” 1 0. 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 solemnization 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 mensa 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.”

NRI DIVORCES INCREASING

Three out of five NRI marriages in the US are being dissolved in less than a year.  There are around 18 million NRIs in the US – these include green card holders, H1-B workers and illegal immigrants. And the cookie is fast crumbling for the Great Indian Wedding, held with traditional pomp back home in India. “It is very easy for someone to file for a divorce in the US,” says Mr.Venkitaraman and an Indian Supreme Court attorney. “For under $500, you can do the needful in a week’s time with the help of US Divorce & Document Assistance.”

This is the route being taken by NRI men – many of whom already have live-in girlfriends but get married to keep their families happy – and there are around 15,600 NRI divorces every year in the US. “I handle at least 40 cases a month where the wives come for help – they cannot imagine contesting a divorce as one has to cough up $2,500-$3,000 as legal retainership, and thereafter hourly fees,” he says. “There are even cases where the men are gay but marry simply to gain social acceptance.” The wives come on the H-4 visa, the ’spouse visa’, and cannot find employment once their husbands leave them. One case that Peshawaria handled recently involved an NRI working for a software company, who married an Indian girl with the usual fanfare.

In a year’s time, he wanted out; by then, the couple already had a daughter. He got himself a divorce, and in order to avoid paying maintenance, he applied for a student visa and secured that too.

Legal Loopholes : Advocate V.P.Sarathi of VPS LAW FIRM says, “A divorce procured in the US does not usually have a legal standing in India, but this is a grey area: it is decided on a case to case basis, and depends on the judge.” This, he adds, will only apply if the husband returns to India. If he does not and chooses to remain in the US, nothing can stop him from getting remarried there.

Sandhya Shukla, director, social services unit, Ministry of Overseas Affairs (MOE), says, “The US is a federal state where every state has its own laws, so it is easy for the man to go to a state that has easier divorce laws and procure a divorce. The wife will not even get to know of it – till she is slapped with a notice.” Malay Mishra, joint secretary, diaspora services division, MOE, says that the ministry is trying to “build awareness about the credentials of NRI grooms in question.”

Shukla adds that “starting February last year, we have organised three conferences to educate people about the pitfalls of NRI marriages – the NGOs will have a big role to play in this campaign.” Many ‘victim’ families are keen to be volunteers in this effort. However, nothing has been done to enforce any guidelines abroad.

A sidelight of the Great NRI Wedding is that more and more NRI men are opting for Filipinos as they are considered, like their Indian counterparts, good homemakers.

THE DIVORCE ACT, 1869

List of Amending Acts/Adaptation Orders

1.    Court-fees Act, 1870 (7 of 1870)

2.    Repealing Act, 1873 (12 of 1873)                                                                            

3.    Indian Divorce (Amendment) Act, 1912 (10 of 1912)   

4.    Indian Divorce (Amendment) Act, 1926 (25 of 1926)

5.    Indian Divorce (Second Amendment) Act, 1927 (30 of 1927)       

6.    Government of India (Adaptation of Indian Laws) Order, 1937

7.    Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948

8.    Adaptation of Laws Order, 1950                             ,

9.    Part B States (Laws) Act, 1951 (3 of 1951)

10. Adaptation of Laws (No. 2) Order, 1956

11. Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1968

12. Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968.

13. Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1973

14. Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974

15. Marriage Laws (Amendment) Act, 2001 (49 of 2001)

16. Indian Divorce (Amendment) Act, 2001 (51 of 2001)

THE INDIAN CHRISTIAN MARRIAGE ACT, 1872

List of Amending Acts/Adaptation Orders

• 1.   Repealing Act, 1874 (16 of 1874)

2.    Births, Deaths and Marriages Registration Act, 1886 (6 of 1886)

3.    Indian Christian Marriage Act (1872) Amendment Act, 1891 (2 of 1891)

4.    Amending Act, 1891 (12 of 1891)

5.    Repealing and Amending Act, 1903(1 of 1903)

6.    Indian Christian Marriage (Amendment) Act, 1911 (13 of 1911)

7.    Repealing and Amending Act, 1928 (18 of 1928)

8.   Government of India (Adaptation of Indian Laws) Order, 1937

9.    Repealing Act, 1938 (1 of 1938)

10. Indian Independence (Adaptation of Central Acts and Ordinances) Order,
    1948

11.  Adaptation of Laws Order, 1950

12. Part B States (Laws) Act, 1951 (3 of 1951)                                                     

13.  Repealing and Amending Act, 1952 (48 of 1952) 

14. Adaptation of Laws Order, 1956                                                                      

15. Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)                         

16. Delegated Legislation Provisions (Amendment) Act, 1983 (20 of 1983)    

THE ‘[***] DIVORCE ACT, 1869² (4OF1869)

[26th February, 1869] An Act to amend the law relating to Divorce and Matrimonial Causes ³[* * *]

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 Vie. 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 placing the Christian subjects of the Crown within the Presidency 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 expedient 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 Divorce and Matrimonial Causes in England, established in virtue of the Act 20 and 21 Vie. C. 85, and in regard to which further provisions were made by 22 and 23 Vie. C. 61, and

1. The word “Indian” omitted by Act 51 of 2001, S. 2 (w.e.f. 3-10-2001).

2. The Act has been declared in force in the Sonthal Parganas by S. 3 of the Sonthal Parganas Settlement Regulation (2 of 1872) as amended by the Sonthal Parganas Justice and Laws Regulation (3 of 1899), ibid.

It has been declared by notification under S. 3 (a) of the Scheduled Districts Act (14 of 1874), to be in force in the following Scheduled Districts, namely:-—

The District of Hazaribagh Lohardaga and Manbhum and Pargana Dhalbhum and the Kolhan in the District of Singbhum, see Gazette of India, 1881, Pt. I, p. 504.

The District of Lohardaga included that time the present district of Palamau which was separated in 1894. The District of Lohardaga is now called the Ranchi District, see Calcutta Gazette, 1899, Pt. I, p. 44.

The Scheduled District in Ganjam and Vizagapatnam, see Fort St. George Gazette, 1898, Pt. I,p. 666.

The Act has been extended to the new Provinces and merged States by the Merged States (Laws) Act, 59 of 1949 and to the States of Manipur, Tripura and Vindhya Pradesh by Act 30 of 1950. Manipur and Tripura are full-fledged States now, see Act 81 of 1971. Vindhya Pradesh is a part of the State of Madhya Pradesh now, see Act 37 of 1956.

3. The words “In India” omitted by Act 3 of 1951.

                                                             DIVORCE ACT, 1869                                             

23 and 24 Vie. C. 144. The Act of Parliament for establishing the High Court, however, does not purport to give to the Crown clearly could not so import, such for instance as those which prescribe the period of remarriage, and those which exempt from punishment 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 Vie. Ch. 81 has been passed in the year just expired (1862). The object of this Statute is to render perpetual 23 and 24 Vie. Ch. 144 the duration of which had been originally limited to twoyears.

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 Vie. 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 Vie. 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.

Amendment Act 49 of 2001—Statement of Objects and Reasons.—The Law Commission of India in its 27th , 54th and 129th Reports and the Committee on Subordinate Legislation (llth Lok Sabha) had recommended that the tendency to obtain the adjournments on frivolous grounds in the cases pending in Courts should be curbed. The Malimath Committee also recommended that remedial measures should be taken immediately for speedy disposal of the cases pending in Courts..

2. Sections 36 and 41 of the Indian Divorce Act, 1869, sections 39 and 49 of the Parsi Marriage and Divorce Act, 1936, sections 36 and 38 of the Special Marriage Act, 1954 and sections 24 and 26 of the Hindu Marriage Act, 1955 do not contain any time-limit for

                                           DIVORCE ACT, 1869                                              

disposal of applications for alimony pendente lite or the maintenance and education of minor children. More than 670 cases are understood to be pending in various High Courts under section 24 of the Hindu Marriage Act, 1955.

3. As part of the judicial reforms process, it is proposed to make necessary amendments in enactments mentioned in paragraph 2 with a view toi making provisions that an _ r ication for alimony pendente lite or the maintenance and education of minor children ?nall be disposed of within sixty days from the date of service of notice on the respondent.

Amendment Act 51 of 2001—Statement of Objects and Reasons.—The Law Commission :r India in its 164th Report on “The Indian Divorce Act (4 of 1869)” presented to the Government in November, 1998, has, inter alia, recommended that Parliament may enact a comprehensive law governing marriage and divorce and other allied aspects of the Christians in India. The Commission, relying on the judgments and observations of certain High Courts, has also urged the Central Government to take immediate measures—

(/’) to amend section 10 of the Indian Divorce Act, 1869 relating to grounds of dissolution of marriages so that the female spouses are not discriminated vis-a-vis male spouses in obtaining a decree of dissolution of marriage;

(ii) to amend suitably sections 17 and 20 of the Act to do away with the procedural

-squirement of obtaining confirmation from the High Court in respect of a decree of : ^solution of marriage or decree of nullity of marriage as such a procedure is long-drawn jnd strenuous.

2. With a view to ascertaining the views of the Christian community on proposal for a

unified law on marriage and divorce, the Central Government convened a meeting of

leaders of prominent Churches in India and the Members of Parliament belonging to the

Christian community on the 28th April, 2000 but there was no consensus for bringing in a

comprehensive legislation on Christian marriages and matrimonial causes. However, there

is no opposition from any one to amend sections 10,17 and 20 of the Indian Divorce Act,

1869  suitably to remove the gender inequality as contained in section 10 and to do away

with the procedural delays in obtaining divorce due to the provisions contained in sections

17 and 20 of the Act. The Government, therefore, proposes to make suitable changes in the

Indian Divorce Act, 1869 for removing hardship to all concerned.

3. The Commission on Review of Administrative Laws which was set up by the Central Govemment on the 8th May, 1998 has, inter alia, recommended repeal of various enactments including three British Statutes relating to Christian Personal Law still in force. It is – proposed to repeal these enactments also as they have become obsolete.

I—PRELIMINARY       

1 Short title. Commencement of Act.—This Act may be called the ⁴[* * *] Divorce act, and shall come into operation on the first day of April, 1869.

1 Extent of Act.—This Act exten ds to ⁵[the whole of India 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,

4 Theword “Indian” omitted by Act 51 of 2001, S. 2 (w.e.f. 3-10-2001). ‘

5. Substituted by A.0.1950 and Act 3 of 1951.

6- This and the succeeding three paras were substituted for the 2nd, 3rd and 4th paras by
_Act 25  of 1926,8.2.
7.  Inserted by Act 30 of 1927,8.2.                                                                                  .

FOREIGN MARRIAGE ACT, 1969

(d) in section 4, for clause (e), the following clause shall be substituted, namely:—

“(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.”;

(e) in section 10, for the words “outside the territories to which this Act extends in respect of an intended marriage outside and said territories”, the words “in the State of Jammu and Kashmir in respect of an intended marriage in the State” shall be substituted;

(/) in section 50, in sub-section (1), the words “diplomatic and consular officers and other” shall be omitted.

30. Repeal—The Indian Foreign Marriage Act, 1903 (14 of 1903), is hereby repealed.

                                                              THE FIRST SCHEDULE                          

(Seesection5)                                            
                      FORM OF NOTICE OF INTENDED MARRIAGE

TO                                                       

The Marriage Officer                                                                                                                                        
for…………………………..  

We hereby give you notice that a marriage under the Foreign Marriage Act, 1969 is intended to be solemnized between us within three months from the date hereof.

                        THE SECOND SCHEDULE

(See section 12)

DECLARATION TO BE MADE BY THE BRIDEGROOM I, A.B., hereby declare as follows:—

1.1 am at the present time unmarried (or a widower or a divorcee, as the case may be).

       2. I have completed………….years of age.

3.1 am not related to CD. (the bride) within the degrees of prohibited relationship

 4.1 am a citizen of………………

                      .                      

FOREIGN MARRIAGE ACT, 1969

                                                                                        (to be filled up)

5.1 am aware that, if any statement in this declaration is false, I am liable to imprisonment and also to fine.

Sd.A.B. (the bridegroom)

DECLARATION TO BE MADE BY THE BRIDE

I, CD., hereby declare as follows: —

I.I am at the present time unmarried (or a widower or a divorcee, as the case may be).

2. 1 have completed. ……………… years of age.

3. 1 am not related to A.B. (the bridegroom) within the degrees of prohibited relationship.

4. 1 am a citizen of… …………………………………………..                                                  

(to be filled up)

5. 1 am aware that, if any statement in this declaration is false, I am liable to
imprisonment and also to fine.                      

Sd. CD. (the bride)

Signed in our presence by the abovenamed A.B. and C.D. So far as we are aware, there is no lawful impediment to the marriage.

Sd. G.H.I

Sd././.   | Three witnesses.

Sd.JClJ

Countersigned E.F.

                                                                                                                                   Marriage Officer

Dated the…………… …… .day of….. ……….. .20……………..                                                                                                                     

                                                    THE THIRD SCHEDULE    .               

(See section 14) FORM OF CERTIFICATE OF MARRIAGE

I. E.F., hereby certify that on the. …….. …….day of…. …………… .20..,. ……………. …A.B. and C.D.

……………… …….’appeared   before   me   and   that   the   declaration   required   by   section

….;……………………..⁺of the Foreign Marriage Act, 1969, was duly made, and that a marriage

under that Act was solemnized between them in my presence and in the presence of three
witnesses who have signed hereunder.                                                                                    .

Sd.EF.
                                                                                                                   Marriage Officer

(bridegroom)

Sd. C.D. (bride)  

Sd.G.H.j

Sd././.   t Three witnesses

Sd.KLJ

Dated the………………….day of……………..20..

* Herein give particulars of the parties, t To be entered.

                                     FOREIGN MARRIAGE ACT, 1969                                      

 a party to the marriage who is such citizen produces to a Marriage Officer in the country in which the marriage was solemnized—

(z) a copy of the entry in respect of the marriage in the marriage register of that country certified by the appropriate authority in that country to be a true copy of that entry; and

(it) if the copy of that entry is not in the English language, a translation into the prescribed language of that copy; and

(c) the Marriage Officer is satisfied that the copy of the entry in the marriage register is a true copy and that the translation, if any, is a true translation;

the Marriage Officer, upon the payment of the prescribed fee, shall certify

upon the copy that he is satisfied that the copy is a true copy of the entry in the
marriage register and upon the translation that he is satisfied that the
translation is a true translation of the copy and shall issue the copy and the
translation to the said party.                                                           .

(2) A document relating to a marriage in a foreign country issued under sub-section (1) shall be admitted in evidence in any proceedings as if it were a certificate duly issued by the appropriate authority of that country.

Objects and Reasons—Clause 24.—Based on its Australian counterpart, certification under this clause is given an evidentiary value, so that a document issued by a Marriage Officer can be admitted as evidence in India.

25. Certified copy of entries to be evidence.—Every certified copy purporting to be signed by the Marriage Officer of an entry of a marriage in the Marriage Certificate Book shall be received in evidence without production or proof of the original.

Objects and Reasons—Clause 25.—This seeks to provide that certified copies of entries in the Marriage Certificate Book shall be evidence.

26. Correction of errors.—(1) Any Marriage Officer who discovers any error in the form or substance of any entry in the Marriage Certificate Book may, within one month next after the discovery of such error, in the presence of the persons married, or, in case of their death or absence, in the presence of two other witnesses, correct the error by entry in the margin without any alteration of the original entry and add thereto the date of such correction.

(2) Every correction made under this section shall be attested by the witnesses in whose presence it was made.

27. Act not to affect validity of marriages outside it.—Nothing in this Act shall in any way affect the validity of a marriage solemnized in a foreign country otherwise than under this Act.

Objects and Reasons—Clause 27.—This clause, saving marriages solemnized under other laws, has been inserted by way of abundant caution.

28. Power to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules¹ for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

1. See Foreign Marriage Rules, 1970.

                                                  FOREIGN MARRIAGE ACT, 1969                                    

(a) the duties and powers of Marriage Officers and their districts;

(b) the manner in which a Marriage Officer may hold any inquiry under this Act;

(c) the manner in which notices of marriage shall be published;

(d) the places in which and the hours between which marriages under this Act may be solemnized;

(e) the form and the manner in which any books required by or under this Act to be kept shall be maintained;

(f) the form and manner in which certificates of marriages may be entered under sub-section (5) of section 17;

(g) the fees that may be levied for the performance of any duty imposed upon a Marriage Officer under this Act;

(h) the authorities to which, the form in which and the intervals within which copies of entries in the Marriage Certificate Book shall be sent, and, when corrections are made in the Marriage Certificate Book, the manner in which certificates of such corrections shall be sent to the authorities;

(i) the inspection of any books required to be kept under this Act and the furnishing of certified copies of entries therein;

(f) the manner in which and the conditions subject to which any marriage may be recognised under section 23;

(fc) any other matter which may be, or requires to be, prescribed.

(3) Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or ²[in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

29. Amendment of Act 43 of 1954.—In the Special Marriage Act, 1954,—

(a) in section 1, in sub-section (2), for the words “outside the said
territories”, the words “in the State of Jammu and Kashmir” shall be
substituted;                                 

   (b) in section 2, clauses (a) and (c) shall be omitted;                                                                   ^:

(c) in section 3, for sub-section (2), the following sub-section shall be substituted, namely:—

“(2) For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers for the State or any part thereof.”;

2. Substituted by Act 20 of 1983, S. 2 and Sch., for “in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following” (w.e.f. 15-3-1984).

                                                  FOREIGN MARRIAGE ACT, 1969                                        

(if) the petitioner, being the wife, was domiciled in India immediately before the marriage and has been residing in India for a period of not less than three years immediately preceding the presentation of the petition;

(b) to make any decree annulling a voidable marriage, except where—

(z) the parties to the marriage are domiciled in India at the time of the presentation of the petition; or

(h) the marriage was solemnized under this Act and the petitioner, being the wife, has been ordinarily resident in India for a period of three years immediately preceding the presentation of the petition;

(c) to make any decree of nullity of marriage in respect of a void marriage, except where—

(z) either of the parties to the marriage is domiciled in India at the time of the presentation of the petition; or

(z’z) the marriage was solemnized under this Act and the petitioner is residing in India at the time of the presentation of the petition;

(d) to grant any other relief under Chapter V or Chapter VI of the Special Marriage Act, 1954 (43 of 1954), except where the petitioner is residing in India at the time of the presentation of the petition.

(4) Nothing contained in sub-section (1) shall authorise any Court to grant any relief under this Act in relation to any marriage in a foreign country not solemnized under it, if the grant of relief in respect of such marriage (whether on any of the grounds specified in the Special Marriage Act, 1954 (43 of 1954), or otherwise) is provided for under any other law for the time being in force.

Objects and Reasons—Clause 18.—Sub-clause (1) applies the provisions of Chapters IV to VII of the Special Marriage Act so as to—

(f) define the consequences of a marriage under the proposed law; and                  ^;
(if) provide for matrimonial relief.

Read with sub-clause (4), it covers also foreign marriages under other laws for which matrimonial relief is not available in India under any other law. Sub-clause (2) is intended to define the District Court which will have jurisdiction for granting relief and sub-clause (3) embodies the recognised principles of private international law as to jurisdiction of Indian Courts to grant matrimonial relief.

While providing for matrimonial relief in respect of foreign marriages under other laws, care has been taken to ensure that—

(a) the validity of such marriages is not affected by the provisions of the proposed law; and

(b) even where such marriage is registered under this law, its validity is not affected by the said provisions, the only relief available in such a case being cancellation of registration.

              CHAPTER V                                                    
PENALTIES

19. Punishment for bigamy.—(1) Any person whose marriage is solemnized or deemed to have been solemnized under this Act and who, during the subsistence of his marriage, contracts any other marriage in India shall be subject to the penalties provided in section 494 and section 495 of the Indian Penal Code (45 of 1860) and the marriage so contracted shall be void.

                                                  FOREIGN MARRIAGE ACT, 1969                                    

(2) The provisions of sub-section (1) apply also to any such offence committed by any citizen of India without and beyond India.

Objects and Reasons—Clayse 19.—This follows section 44 of the Special Marriage Act and in its application to a second marriage taking place outside India, it is confined to citizens of India, following the principle underlying section 4 of the Indian Penal Code.

20. Punishment for contravention of certain other conditions for marriage.—Any citizen of India who procures a marriage of himself or herself to be solemnized under this Act in contravention of the condition specified in clause (c) or clause (d) of section 4 shall be punishable—

(a) in the case of a contravention of the condition specified in clause (c) of section 4, with simple imprisonment which may extend to fifteen days or with fine which may extend to one thousand rupees, or with both; and

(b) in the case of a contravention of the condition specified in clause (d) of section 4, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

21. Punishment for false declaration.—If any citizen of India for the purpose of p rocuring a marriage, intentionally—

(a) where a declaration is required by this Act, makes a false declaration; or

(£>) where a notice or certificate is required by this Act, signs a false notice or certificate,

he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

22. Punishment for wrongful action of Marriage Officer.—Any Marriage Officer who knowingly and wilfully solemnizes a marriage under this Act in contravention of any of the provisions of this Act shall be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five hundred rupees, or with both.

CHAPTER VI                         
MISCELLANEOUS

23. Recognition of marriages solemnized under law of other countries.—If

the Central Government is satisfied that the law in force in any foreign country for the solemnization of marriages contains provisions similar to those contained in this Act, it may, by notification in the Official Gazette, declare that marriages solemnized under the law in force in such foreign country shall be recognized by Courts in India as valid.

Objects and Reasons—Clause 23.—This provides for recognition in India of marriages solemnized under a law in force outside India, if that law provides for recognition of marriages solemnized under Indian law and is based upon a similar provision in Australian Marriage (Overseas) Act, 1955.

24. Certification of documents of marriages solemnized in accordance with local law in a foreign country.—(1) Where—

(a) a marriage is solemnized in any foreign country specified in this behalf by the Central Government, by notification in the Official Gazette, in accordance with the law of that country between parties of whom one at least is a citizen of India; and

Law Commission wants Christian divorce law to be amended

The Central Government has been asked to review a 150-year old Christian divorce law that is virtually “harsh upon Christian women in India”.

The Law Commission – in light of a Christian woman filing a petition to divorce her NRI husband – apprised the government to amend the colonial era law, Section 2 of the Divorce Act, 1869, formulated by the British.

The Deccan Herald quoted the report of Law Commission chairman A R Laxmanan, who wrote: “The Law Commission has come to the conclusion that Section 2 of the Divorce Act, 1869, insofar as it concerns the jurisdictional rule in regard to petitions for divorce, is not only not in tune with the present times but is also harsh upon Christian women in India.”

Christian women, according to the Act, cannot file a petition before an Indian court seeking divorce if her husband is a citizen of a foreign country.

As a suggestion to the Union law minister Veerappa Moily, Justice Laxmanan has sought the permission for courts to decide on the dissolution of marriages solemnised abroad. The report demands that Indian courts be allowed to entertain such petitions where either of the parties have their residence in India.

Laxmanan argued that the British law has made Christian woman unable to approach the court. This, even after their husbands have deserted them and are living abroad.

According to the Deccan Herald, Centre had referred the ruling of the Madras High Court in the Indira Rachel vs Union of India to the Law Commission for suitable suggestion.

In 1995, Indira Rachel had filed a petition before the Madras High Court seeking direction to allow her to file a petition for divorce from her husband Andrew Solomon Raj, who was then working as assistant supervisor with the Bank of Kuwait and Middle East in Kuwait. However, before the court could decide on the matter, Raj died, making the petition ineffective.

The high court later suggested to the government: “Therefore, according to us, such provision should be interpreted to mean that the courts in India shall be entitled to entertain petition for dissolution of marriage where either of the parties has domiciled in India at the time when the petition is presented.”

                                                 FOREIGN MARRIAGE ACT, 1969                                      

the fact that a marriage under this Act has been solemnized, and that all formalities respecting the residence of the party concerned previous to the marriage and the signatures of witnesses have been complied with.

Objects and Reasons—Clause 14.—This follows section 13 of the Special Marriage Act, except that the certificate of marriage has been made conclusive proof of compliance with formalities regarding residence of a party also. This will enhance the utility of the certificate.

15. Validity of foreign marriages in India.—Subject to the other provisions contained in this Act, a marriage solemnized in the manner provided in this Act shall be good and valid in law.

Objects and Reasons—Clause 25.—This provides for the recognition by Courts in India of the validity of marriages solemnized under the proposed Act.

16. New notice when marriage not solemnized within six months.—

Whenever a marriage is not solemnized within six months from the date on which notice thereof has been given to the Marriage Officer as required under section 5 or where the record of a case has been transmitted to the Central Government under section 10, or where an appeal has been preferred to the Central Government under section 11, within three months from the date of decision of the Central Government in such case or appeal, as the case may be, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until new notice has been given in the manner laid down in this Act.

CHAPTER III

REGISTRATION OF FOREIGN MARRIAGES SOLEMNIZED UNDER

OTHER LAWS

17. Registration of foreign marriages.—(1) Where—-

(a) a Marriage Officer is satisfied that a marriage has been duly solemnized in a foreign country in accordance with the law of that country between parties of whom one at least was a citizen of India; and

(V) a party to the marriage informs the Marriage Officer irr writing that he or she desires the marriage to be registered under this section,

the Marriage Officer may, upon payment of the prescribed fee, register the marriage.

(2) No marriage shall be registered under this section unless at the time of registration it satisfies the conditions mentioned in section 4.

(3) The Marriage Officer may, for reasons to be recorded in writing, refuse to register a marriage under this section on the ground that in his opinion the marriage is inconsistent with international law or the comity of nations.

(4) Where a Marriage Officer refuses to register a marriage under this section the party applying for registration may appeal to the Central Government in the prescribed manner within a period of thirty days from the date of such refusal; and the Marriage Officer shall act in conformity with the decision of the Central Government on such appeal.

(5) Registration of a marriage under this section shall be effected by the Marriage Officer by entering a certificate of the marriage in the prescribed form and in the prescribed manner in the Marriage Certificate Book, and such certificate shall be signed by the parties to the marriage and by three witnesses.

                                     FOREIGN MARRIAGE ACT, 1969                                  

(6) A marriage registered under this section shall, as from the date of registration, be deemed to have been solemnized under this Act.

Objects and Reasons—Clause 17.—This provides for registration of marriages
solemnized under the law of a foreign country. A marriage will not be registered unless it
satisfies the conditions of validity applicable to marriages solemnized under our proposed
law. The clause also provides for the mode of registration and consequences of registration.
A marriage once registered under the proposed Act will be deemed to have been
solemnized under it.                 

CHAPTER IV

MATRIMONIAL RELIEF IN RESPECT OF FOREIGN MARRIAGES

18. Matrimonial  reliefs  to  be  under  Special  Marriage  Act,  1954.—

(1) Subject to the other provisions contained in this section, the provisions of
Chapters IV, V, VI and VII of the Special Marriage Act, 1954 (43 of 1954), shall
apply in relation to marriages solemnized under this Act and to any other
marriage solemnized in a foreign country between parties of whom one at least
is a citizen of India as they apply in relation to marriages solemnized under
that Act.                                                                                                                                     

Explanation.—In its application to the marriages referred to in this sub­section, section 24 of the Special Marriage Act, 1954 (43 of 1954), shall be subject to the following modifications, namely:—

(z) the reference in sub-section (1) thereof to clauses (a), (b), (c) and (d) of section 4 of that Act shall be construed as a reference to clauses (a), (b), (c) and (d) respectively of section 4 of this Act, and

(if) nothing contained in section 24 aforesaid shall apply to any marriage—

(a) which is not solemnized under this Act; or              

(b) which is deemed to be solemnized under this Act by reason of the provisions coiiUined in section 17:

Provided that the registration of any such marriage as is referred to in sub-clause (b) may be declared to be of no effect if the registration was in contravention of sub-section (2) of section 17.

(2) Every petition for relief under Chapter V or Chapter VI of the Special Marriage Act, 1954 (43 of 1954), as made applicable to the marriages referred to in sub-section (1), shall be presented to the District Court within the local limits of whose ordinary civil jurisdiction—

(a) the respondent is residing at the time of the presentation of the
petition; or                                                                                                        

(b) the husband and wife last resided together; or’

(c) the petitioner is residing at the time of the presentation of the petition, provided that the respondent is at that time residing outside India.

Explanation.—In this section, “District Court” has the same meaning as in the Special Marriage Act, 1954 (43 of 1954).

(3) Nothing contained in this section shall authorise any Court— . (a) to make any decree of dissolution of marriage, except where—

(0 the parties to the marriage are domiciled in India at the time of the presentation of the petition; or

                                                                           FOREIGN MARRIAGE ACT, 1969                     

period of not less than thirty days immediately preceding the date on which such notice is given, and the notice shall state that the party has so resided.       

6. Marriage Notice Book.—The Marriage Officer shall keep all notices given
under section 5 with the records of his office and shall also forthwith enter a
true copy of every such notice in a book prescribed for that purpose, to be
called the “Marriage Notice Book”, and such book shall be open for inspection
at all reasonable times, without fee, by any person desirous of inspecting the
same.                                     _;

Objects and Reasons—Clauses 5 and 6.—These procedural clauses follow sections 5 and 6 of the Special Marriage Act.

7. Publication of notice.—Where a notice under section 5 is given to the Marriage Officer, he shall cause it to be published—

(a) in his own office, by affixing a copy thereof to a conspicuous place, and

(fc) in India and in the country or countries in which the parties are ordinarily resident, in the prescribed manner.

Objects and Reasons—Clause 7.—This follows sub-sections (1) and (3) of section 7 Of the Special Marriage Act, but as the marriage would take place outside India and une uf the parties would be an Indian citizen, it has been provided that the notice shall be published in India as well as in the country or countries of residence of the parties.

8. Objection to marriage.—(1) Any person may, before the expiration of thirty days from the date of publication of the notice under section 7, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4.

Explanation.—Where the publication of the notice by affixation under clause (a) of section 7 and in the prescribed manner under clause (b) of that section is on different dates, the period of thirty days shall, for the purposes of this sub­section, be computed from the later date.

(2) Every such objection shall be in writing signed by the person making it or by any person duly authorised to sign on his behalf, and shall state the ground of objection; and the Marriage Officer shall record the nature of the objection in his Marriage Notice Book.

Objects and Reasons—Clause 8.—This is modelled on section 8 of the Special Marriage Act and the Explanation is intended to fix the date of publication.

9. Solemnization of marriage where no objection made.—If no objection is made within the period specified in section 8 to an intended marriage, then, on the expiry of that period, the marriage may be solemnized.

10. Procedure on receipt of objection.—(1) If an objection is made under section 8 to an intended marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection in such manner as he thinks fit and is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdrawn by the person making it.

(2) Where a Marriage Officer after making any such inquiry entertains a
doubt in respect of any objection, he shall transmit the record with such
statement respecting the matter as he thinks fit to the Central Government; and
the Central Government, after making such further inquiry into the matter and
after obtaining such advice as it thinks fit, shall give its decision thereon in
writing to the Marriage Officer, who shall act in conformity with the decision
of the Central Government.

Objects and Reasons—Clauses 9 and 10.—These follow the corresponding provisions in the Special Marriage Act.

11. Marriage not to be in contravention of local laws.—(1) The Marriage Officer may, for reasons to be recorded in writing, refuse to solemnize a marriage under this Act if the intended marriage is prohibited by any law in force in the foreign country where it is to be solemnized.

(2) The Marriage Officer may, for reasons to be recorded in writing, refuse to solemnize a marriage under this Act on the ground that in his opinion, the solemnization of the marriage would be inconsistent with international law or the comity of nations.

(3) Where a Marriage Officer refuses to solemnize a marriage under this section, any party to tike intended marriage may appeal to the Central Government in the prescribed manner within a period of thirty days from the date of such refusal; and the Marriage Officer shall act in conformity with the decision of the Central Government on such appeal.

Objects and Reasons—Clause 11.—This is intended to ensure that marriages prohi-bited by any law in force in the foreign country or marriages appearing to be in contravention of international law or the comity of nations are not solemnized under the proposed Act, so that marriages solemnized thereunder have a high degree of international validity.

12. Declaration by parties and witnesses.—Before the marriage is solemnized, the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Second Schedule, and the declaration shall be countersigned by the Marriage Officer.

13. Place and form of solemnization.—(1) A marriage by or before a Marriage Officer under this Act shall be solemnized at the official house of the Marriage Officer with open doors between the prescribed hours in the presence of at least three witnesses.

(2) The marriage may be solemnized in any form which the parties may choose to adopt:

Provided that it shall not be complete and binding on the parties unless each party declares to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,—”I, (A), take the (B), to be my lawful wife (or husband)”:

Provided further that where the declaration referred to in the preceding proviso is made in any language which is not understood by the Marriage Officer or by any of the witnesses, either of the parties shall interpret or cause to be interpreted the declaration in a language which the Marriage Officer, or, as the case may be, such witness understands.

Objects and Reasons—Clause 13.—This deals with the place and form of solemnization of marriages and is modelled on corresponding provisions in the laws of other countries and the Special Marriage Act.

14. Certificate of marriage.—(1) Whenever a marriage is solemnized under this Act, the Marriage Officer shall enter a certificate thereof in the form specified in the Third Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book, and such certificate shall be signed by the parties to the marriage and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of

THE FOREIGN MARRIAGE ACT, 1969     

(33 OF 1969)

                                                                                                                                                                                       [31stAugust, 1969]
   An Act to make provision relating to marriages of citizens of India outside India.

be it enacted by Parliament in the Twentieth Year of the .Republic of India as follows:—

Statement of Objects and Reasons.—This Bill seeks to implement the Twenty-third Report of the Law Commission on the law relating to foreign marriages. There is, at present, considerable uncertainty as to the law on the subject, as the existing legislation touches only the fringes of the subject and the matter is governed by principles of private international law which are by no means well-settled, and which cannot readily be applied to a country such as ours in which different marriage laws apply to different communities. The Special Marriage Act, 1954 sought to remove the uncertainty to some extent by providing that marriages abroad between citizens of India who are domiciled in India might be solemnized under it.

In the course of the debates in relation to that Act in Parliament, it was urged that a
provision should also be made for marriages abroad where one of the parties alone is an
Indian citizen. In this context, an assurance was given that Government would, after careful
consideration, introduce comprehensive legislation on the subject of foreign marriages. The
present Bill is the outcome of that assurance.               ” ‘”"

(2) The Bill is modelled on the Special Marriage Act, 1954, and the existing English and Australian Legislation on the subject of foreign marriages, subject to certain important modifications rendered necessary by the peculiar conditions obtaining in our country.

The following are the salient features of the Bill:—

(i) It provides for an enabling form of marriage more or less on the same lines as the Special Marriage Act, 1954 which can be availed of outside India where one of the parties to the rharriage in an Indian citizen; the form of marriage thus provided being not in supersession of, but only in addition to or as an alternative to, any other form that might be permissible to the parties.

(«’) It seeks to lay down certain rules in respect of capacity of parties and conditions of validity of marriage and also provides for registration of marriage on lines similar to those in the Special Marriage Act, 1954.

(Hi) The provisions of the Special Marriage Act, 1954, in regard to matrimonial reliefs
are sought to be made applicable, with suitable modifications, not only to marriages
solemnized or registered under the proposed legislation, but also to other marriages
solemnized abroad to which a citizen of India is a party. .                                                    

                CHAPTER I                  

PRELIMINARY

1. Short title.—This Act may be called the foreign marriage act, 1969.

2. Definitions.—In this Act, unless the context otherwise requires,—

(«) “degrees of prohibited relationship” shall have the same meaning as in the Special Marriage Act, 1954 (43 of 1954);

(b) “district”, in relation to a Marriage Officer, means the area within which the duties of his office are to be discharged;

(c) “foreign country” means a country or place outside India, and includes a ship which is for the time being in the territorial waters of such a country or place;

                                                  FOREIGN MARRIAGE ACT, 1969                                       

Objects and Reasons—Clause 2.—Any ship in the territorial waters of a foreign country will be deemed to be a foreign country and that expression is defined accordingly so that solemnization of marriages on board such ships may be facilitated.

(d) “Marriage Officer” means a person appointed under section 3 to be a
Marriage Officer;                                     .                                                

(e) “official house”, in relation to a Marriage Officer, means—,              
(i) the official house of residence of the officer;                

(ii) the off ice in which the business of the of ficer is transacted;
(iii) a prescribed place; and        

(/) “prescribed” means prescribed by rules made under this Act.

3. Marriage Officers.—For the purposes of this Act, the Central Government may, by notification in the Official Gazette, appoint such of its diplomatic or consular officers as it may think fit to be Marriage Officers for any foreign country.

Explanation.—In this section, “diplomatic officer” means an ambassador, envoy, minister, high commissioner, commissioner, charge d’ affairs or other diplomatic representative or a counsellor or secretary of an embassy, legation or high commission.

Objects and Reasons—Clause 3.—This provides for the appointment of Marriage Officers and follows section 3 of the Special Marriage Act.

CHAPTER II                                                     
SOLEMNIZATION OF FOREIGN MARRIAGES

4. Conditions   relating   to   solemnization   of   foreign   marriages.—A

marriage between parties one of whom at least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely:—

(a) neither party has a spouse living,

(b) neither party is an idiot or a lunatic,

(c) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage, and

(d) the parties are not within the degrees of prohibited relationship:

Provided that where the personal law or a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.

Objects and Reasons—Clause 4.—Apart from making it clear that only marriages between parties, one of whom at least is a citizen of India, can be solemnized under the proposed Act, this clause lays down the essential conditions of a marriage, following in this respect mainly the corresponding provisions in the Special Marriage Act.

The Committee are of the view that such a marriage, i.e., within prohibited degrees of relationship between personal law or custom allows it, should also be permitted under this Act. A proviso has therefore been added to achieve this objective.

5. Notice of intended marriage.—When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the First Schedule to the Marriage Officer of the District in which at least one of the parties to the marriage has resided for a

The Madras High Court has given a ruling that would save the sufferings of several wives who find it difficult fighting matrimonial cases against their husbands living in foreign countries.

The Madras High court held Indian courts have jurisdiction to take up matrimonial proceedings involving two Hindus governed by the Hindu Marriage Act (HMA) even in cases where the opposite party is a foreign national having his domicile outside India.

A Division Bench headed by Justices Elipe Dharma Rao and K.K. Sasidharan, dismissing an appeal against a single Judge’s order, in its judgment said when a wife was given the right to initiate proceedings before the local District Court where she was actually residing, such a provision could not be defeated by taking a technical plea that no such proceedings would lie on account of foreign citizenship of the husband or his domicile in another country.

The judges were passing orders on a case involving film actor R Sukanya and her husband R Sridharan, who is an American citizen. They got married in April 17, 2002 as per Hindu rites and customs at Balaji temple in New Jersey in the US. After nearly a year she returned to India, for completing her dance programme. Later, she started to act in films with no plans of returning to the US. She also filed a divorce petition in 2004 before the Principal Family Court, Chennai, on grounds of cruelty.

Sridharan was not aware of the proceedings. He did not attend the proceedings, the family court granted her divorce ex parte in July 2004. After he took steps, the Family Court set aside its order. On his appearance, he filed the counter.

In the meanwhile, Sridharan filed a petition before the Madras High Court seeking a writ of prohibition contending that the Family Court, Chennai, had no jurisdiction to entertain the divorce proceedings as he was a US citizen. The court in India had no jurisdiction.

The actor countered that the marriage was solemnized with Hindu rites and customs. Hence, the rights and obligations of the parties ran from the HMA.
A single Judge said the court in India exercising jurisdiction under the HMA had jurisdiction to entertain the divorce petition irrespective of the present residence of the opposite party. He dismissed the writ petition. Hence, the present appeal.

The Bench said that earlier under section 19 HMA (court to which petition shall be presented) it was not possible for a woman to initiate proceedings before the court in whose jurisdiction she was residing. Because of this, serious prejudice was caused to women.

Following an amendment, the wife was now entitled to file a matrimonial petition before the District Court in whose jurisdiction she was residing.
The legislation had to be given an extended coverage even outside the territory to which it ran. When the parties were governed by the HMA, the jurisdiction and the grounds for annulling the marriage should be as provided under the Act.

The domicile or citizenship of the opposite party was immaterial in a case like this. It was the wife’s residence which determined the question of jurisdiction in case the proceedings were initiated at her instance, the Bench said.

As the divorce petition was pending before the Family Court since 2004, the Bench requested the lower court to decide the petition as expeditiously as possible, in any case within two months.

THE DISSOLUTION OF MUSLIM MARRIAGES

ACT, 1939

List of Amending Acts/Adaptation Orders

1. Repealing and Amending Act,1942 (25 of 1942) .                  

2. Adaptation of Laws (No. 3) Order, 1956

3. Miscellaneous Personal Laws (Extension) Act, 1959 (48 of 1959)

THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937

List of Amending Acts/Adaptation Orders

1. Muslim Personal Law (Shariat) Application (Amendment) Act, 1943 (16 of 1943)

2. Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948

3. Ad aptation of Laws Order, 1950

4. Adaptation of Laws (No. 3) Order, 1956

5. Miscellaneous Personal Laws (Extension) Act, 1959 (48 of 1959)

6. Pondicherry (Extension of Laws) Act, 1968 (26 of 1968)

7. Delegated Legislation Provisions (Amendment) Act, 1983 (20 of 1983)

THE DISSOLUTION OF MUSLIM MARRIAGES

ACT, 1939¹

(8 OF 1939)

[17th March, 1939]

An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

whereas it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie;

It is hereby enacted as follows:—

Statement of Objects and Reasons.—There is no proviso in the Hanafi Code of Muslim law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her unprovided for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India. The Hanafi Jurists, however, have clearly laid down that in cases in which the application of Hanafi law causes hardship, it is permissible to apply the provisions of the “Maliki, Shaft’s or Hambali law”. Acting on this principle the Ulemas have issued farwas to the effect that in cases enumerated in clause 3, Part A of this Bill [now see section 2 of the Act] a married Muslim woman may obtain a decree dissolving her marriage. A lucid exposition of this principle can be found in the book called “Heelatum Najeza” published by Maulana Ashraf AH Sahib who has made an exhaustive study of the provisions of Maliki law which under the circumstances prevailing in India may be applied to such cases. This has been approved by a large number of Ulemas who have put their seals of approval on the book.

As the Courts are sure to hesitate to apply the Maliki law to the case of a Muslim woman, legislation recognising and enforcing the abovementioned principle is called for in order to relieve the sufferings of countless Muslim women.

One more point remains in connection with the dissolution of marriages. It is this. The Courts in British India have held in a number of cases that the apostasy of a married Muslim woman ipso facto dissolves her marriage. This view has been repeatedly challenged at the bar but the Courts continue to stick to precedents created by rulings based on an erroneous view of the Muslim law. The Ulemas have issued Fatwas supporting non-dissolution of marriage by reason of wife’s apostasy. The Muslim community has, again and again, given expression to its supreme dissatisfaction with the view held by the Courts. A number of articles have been appearing in the press demanding legislation to rectify the mistake committed by the Courts; hence clause 5 [now see section 4] is proposed to be incorporated in this Bill.

Thus, by this Bill the whole law relating to dissolution of marriages is brought at one place and consolidated in the hope that it would supply a very long felt want of the Muslim community in India.

l.TheActhas been extended to the new Provinces and merged States by the Merged States _ – ws) Act 59 of 1949 and to the States of Manipur, Tripura and Vindhya Pradesh by the Union

-ritories (Laws) Act 30 of 1950. Manipur and Tripura are full-fledged States now, see Act 81

- 971. Vindhya Pradesh is a part of the State of Madhya Pradesh now, see Act 37 of 1950.

                                                DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939                      

1. Short title and extent.—(1) This Act may be called the dissolution of muslim marriages act, 1939.

(2) It extends to the whole of India ²[except the State of Jammu and Kashmir].

State Amendment—[Pondicherry].—In S.I, after sub-S. (2), insert the following provi? namely:—

“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry.”—Act 26 of 1968, S. 3 and Sch. (w.e.f. 1-8-1968).

2. Grounds for decree for dissolution of marriage.—A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:—

(z) that the whereabouts of the husband have not been known for a period of four years;

(it) that the husband has neglected or has failed to provide for her mainte­nance for a period of two years;

(iit) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(iff) that the husband has been insane for a period of two years or 15 suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,—

(a) habitually assaults her or makes her life miserable by cruelty c: conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights
over it, or                                                                                     

(e) obstructs her in the observance of her religious profession or practice, c -

(f) if he has more wives than one, does not treat her equitably u accordance with the injunctions of the Qoran;

(zx) on any other ground which is recognised as valid for the dissolution c: marriages under Muslim law;

Provided that—

(«) no decree shall be passed on ground (iit) until the sentence ha~ become final;

2. Substituted by Act 48 of 1959, S. 3 and Sch. I, for certain words (w.e.f. 1-2-1960).

THE DOWRY PROHIBITION (MAINTENANCE OF

LISTS OF PRESENTS TO THE BRIDE AND

BRIDEGROOM) RULES, 1985¹

In exercise of the powers conferred by section 9 of the Dowry Prohibition Act, 1961 (28 of 1961), the Central Government hereby makes the following rules, namely:—

1. Short title and commencement.—(1) These rules may be called the

dowry prohibition (maintenance of lists of presents to the bride and bridegroom) rules, 1985.

(2) They shall come into force on the 2nd day of October, 1985 being the date appointed for the coming into force of the Dowry Prohibition (Amendment) Act, 1984 (63 of 1984).

2. Rules in accordance with which lists of presents are to be maintained.—

(1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride.

(2) The list of presents which are given at the time of marriage to the bridegroom shall be maintained by the bridegroom.

(3) Every list of presents referred to in sub-rule (1) or sub-rule (2)—

(a) shall be prepared at the time of the marriage or as soon as possible after the marriage,

(b) shall be in writing,

(c) shall contain,—

(i) a brief description of each present;                                                        

(if) the approximate value of the present;                                
               (iit) the name of the person who has given the present; and

(iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship;

(d) shall be signed by both the bride and the bridegroom.

Explanation 1.—Where the bride is unable to sign, she may affix her thumb-impression in lieu of her signature after having the list read out to her and obtaining the signature, on the list, of the person who has so read out the particulars contained in the list.

Explanation 2.—Where the bridegroom is unable to sign, he may fix his thumb-impression in lieu of his signature after having the list read out to him and obtaining the signature, on the list of the person who has so read out the particulars contained in the list.

(4) The bride or the bridegroom may, if she or he so desires, obtain on either or both of the lists referred to in sub-rule (1) or sub-rule (2) the signature or signatures of any other person or persons present at the time of the marriage.

1, Vide G.S.R. 664(E), dated 19-84985, published in the Gazette of India, Ext., Pt. II, S. 3(i), dated 19-8-1985.

CHENNAI: In a crucial ruling which is sure to cheer up women fighting divorce cases with husbands residing in a foreign country, the Madras HC has said the family court in India had jurisdiction to try matrimonial litigation even if the husband is a citizen of a foreign country and not an ordinary resident of India.

A division bench comprising Justice Elipe Dharma Rao and Justice KK Sasidharan pointed out that the amended Section 19 of the Hindu Marriages Act extended to outside India. “The fact that the husband is residing outside the territory does not prevent the wife from applying before the local designated court to redress her grievances,” the bench said.

The judges were passing orders on a case involving film actor R Sukanya and her husband R Sridharan, who is an American citizen. The two got married in April 2002 as per Hindu rites and customs at Balaji temple in New Jersey in the US. After nearly a year she returned to India, started to act in films, and also filed a divorce petition in 2004. As her husband did not attend the proceedings, the family court granted her divorce ex parte.

On representation from her husband Sridharan, later the family court reversed its order. He also filed a petition in the HC to restrain the family court from hearing the case on the ground that the court in India had no jurisdiction to take up the matter involving American citizens.

Dismissing his claims, the judges said that when the marriage was solemnised under the Hindu law, the proceedings for divorce also has to be made under the same Act. Referring to the amended Section 19 of the Act, the judges said with effect from December 23, 2003, the wife is now entitled to file a matrimonial petition before a district court in whose territorial jurisdiction she is residing.

The judges rejected Sridharan’s claims of domicile, and said, “when the marriage was solemnised under the Hindu law, the proceedings for divorce has also to be made under the said Act. He cannot take any exception to the proceedings in India under provisions of the Hindu Marriage Act merely on account of his US citizenship or domicile.

Indian courts have jurisdiction to take up matrimonial proceedings involving two Hindus governed by the Hindu Marriage Act (HMA) even in cases where the opposite party is a foreign national having his domicile outside India, the Madras High Court has held.

Dismissing an appeal against a single Judge’s order, a Division Bench, comprising Justices Elipe Dharma Rao and K.K. Sasidharan, in its judgment said when a wife was given the right to initiate proceedings before the local District Court where she was actually residing, such a provision could not be defeated by taking a technical plea that no such proceedings would lie on account of foreign citizenship of the husband or his domicile in another country.

The substantial issue in the appeal pertained to legality of a matrimonial proceedings initiated by actor R. Sukanya before a family court in Chennai against her husband having his domicile in New Jersey (USA.)

R. Sridharan was an Indian citizen and, on migration to the US, was granted that country’s citizenship.

The actor was residing adjacent to his residence in Chennai. Their marriage was solemnised on April 17, 2002 as per Hindu rites and customs at the Balaji temple in New Jersey.

In January 2003, the actor came to India for a short visit promising to return after completing her dance programme. Later, against her promise she started acting in films with no plans of returning to the US. She filed a divorce petition before the Principal Family Court, Chennai, on grounds of cruelty.

Mr. Sridharan was not aware of the proceedings. An ex parte order of divorce was granted in July 2004. After he took steps, the Family Court set aside its order. On his appearance, he filed the counter.

In the meanwhile, Mr. Sridharan filed a petition before the Madras High Court seeking a writ of prohibition contending that the Family Court, Chennai, had no jurisdiction to entertain the divorce proceedings as he was a US citizen. The court in India had no jurisdiction.

The actor countered that the marriage was solemnised with Hindu rites and customs.

Hence, the rights and obligations of the parties ran from the HMA.

A single Judge said the court in India exercising jurisdiction under the HMA had jurisdiction to entertain the divorce petition irrespective of the present residence of the opposite party. He dismissed the writ petition. Hence, the present appeal.

The Bench said that earlier under section 19 HMA (court to which petition shall be presented) it was not possible for a woman to initiate proceedings before the court in whose jurisdiction she was residing. Because of this, serious prejudice was caused to women.

Following an amendment, the wife was now entitled to file a matrimonial petition before the District Court in whose jurisdiction she was residing.

The legislation had to be given an extended coverage even outside the territory to which it ran. When the parties were governed by the HMA, the jurisdiction and the grounds for annulling the marriage should be as provided under the Act.

The domicile or citizenship of the opposite party was immaterial in a case like this. It was the wife’s residence which determined the question of jurisdiction in case the proceedings were initiated at her instance, the Bench said.

As the divorce petition was pending before the Family Court since 2004, the Bench requested the lower court to decide the petition as expeditiously as possible, in any case within two months

subsisting ought to be a bar to a marriage under Parsi law, exactly as it would be to a Christian marriage or one under the Special Marriage Act, and there is little doubt that a Court would take the same view even at present under the general law. The alteration puts the matter beyond doubt.

5. Punishment of bigamy.—Every Parsi who during the lifetime of his or
her wife or husband, whether a Parsi or not, contracts a marriage without
having been lawfully divorced from such wife or husband, or without his or
her marriage with such wife or husband having legally been declared null and
void or dissolved, shall be subject to the penalties provided in sections 494 and
495 of the Indian Penal Code (45 of 1860) for the offence of marrying again
during the lifetime of a husband or wife.
                                                COMMENTS

Sections 494 and 495 of the Indian Penal Code (45 of 1860) are as follows:—

494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception.—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction,

nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.—Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

6. Certificate and registry of marriage.—Every marriage contracted under this Act shall, immediately on the solemnization thereof, be certified by the officiating priest in the form contained in Schedule II. The certificate shall be signed by the said priest, the contracting parties ⁹[* * *] and two witnesses present at the marriage; and the said priest shall thereupon send such certificate together with a fee of two rupees to be paid by the husband to the Registrar of the place at which such marriage is solemnized. The Registrar on receipt of the certificate and fee shall enter the certificate in a register to be kept by him for that purpose and shall be entitled to retain the fee.

7. Appointment of Registrar.—For the purposes of this Act a Registrar shall be appointed. Within the local limits of the ordinary original civil jurisdiction of a High Court, the Registrar shall be appointed by the Chief Justice of such Court, and without such limits, by the State Government. Every Registrar so appointed may be removed by the Chief Justice or State Government appointing him.

8. Marriage register to be open for public inspection.—The register of marriage mentioned in section 6 shall, at all reasonable times, be open for

9. The words “or their fathers ‘or guardians when they shall not have completed the age of twenty-one years,” omitted by Act 5 of 1988, S. 3 (w.e.f. 15-4-1988).                                                

inspection, and certified extracts therefrom shall, on application, be given by the Registrar on payment to him by the applicant of two rupees for each such extract. Every such register shall be evidence of the truth of the statements therein contained.

9. Copy of certificate to be sent to Registrar-General of Births, Deaths and Marriages.—Every Registrar, except the Registrar appointed by the Chief Justice of the High Court of judicature at Bombay, shall, at such intervals as the State Government by which he was appointed from time to time directs, send to the Registrar-General of Births, Deaths and Marriages for the territories administered by such State Government, a true copy certified by him in such form as such State Government from time to time prescribes, of all certificates entered by him in the said register of marriages since the last of such intervals.

10. Registration of divorces.—When a Court passes a decree for divorce, nullity or dissolution, the Court shall send a copy of the decree for registration to the Registrar of Marriages within its jurisdiction appointed under section 7; the Registrar shall enter the same in a register to be kept by him for the purpose, and the provisions of Part II applicable to the Registrars and registers of marriages shall be applicable) so far as may be, to the Registrars and registers of divorces and decrees of nullity and dissolution.

11. Penalty for solemnizing marriage contrary to section 4.—Any priest knowingly and wilfully solemnizing any marriage contrary to and in violation of section 4 shall, on conviction thereof, be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both.

12. Penalty for priest’s neglect of requirements of section 6.—Any priest neglecting to comply with any of the requisitions affecting him contained’.in section 6 shall, on conviction thereof, be punished for every such offence with simple imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees, or with both.

13. Penalty for omitting to subscribe and attest certificate.—Every other person required by section 6 to subscribe or attest the said certificate who shall wilfully omit or neglect so to do, shall, on conviction thereof, be punished for every such offence with a fine not exceeding one hundred rupees.

14. Penalty for making, etc., false certificate.—Every person making or signing or attesting any such certificate containing a statement which -is false, and which he either knows or believes to be false, shall be punished with simple imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees, or with both; and if the act amounts to forgery as defined in the Indian Penal Code (45 of 1860), then such person shall also be liable, on conviction thereof, to the penalties provided in section 466 of the said Code.

Objects and Reasons—Clause 14.—This corresponds to the present section 12 (of the Act 1865). The latter makes all the signatories guilty of forgery if any the slightest detail,

whether material or not be incorrect, e.g., if the age of a party be given at 35 instead of 37.

The use of the words “does not know to be true” makes even a person acting in good faith

on information apparently reliable guilty if his information happens to be incorrect. The

alteration is intended to remedy these defects.

15. Penalty for failing to register certificate.—Any Registrar failing to enter the said certificate pursuant to section 6 shall be punished with simple                                            

imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

16. Penalty for secreting, destroying or altering register.—Any person secreting, destroying, or dishonestly or fraudulently altering the said register in any part thereof, shall be punished with imprisonment of either description as defined in the Indian Penal Code (45 of 1860) for a term which may extend to two years, or if he be a Registrar, for a term which may extend to five years and shall also be liable to fine which may extend to five hundred rupees.

17. Formal irregularity not to invalidate marriage.—No marriage contracted under this Act shall be deemed to be invalid solely by reason of the fact that it was not certified under section 6, or that the certificate was not sent to the Registrar, or that the certificate was defective, irregular or incorrect.

Objects and Reasons—Clause 17.—This new clause lays down general principles on
which most District Judges would act and have acted. (See Peshottam v. Meharbai, I.L.R. 13
Vom.302andAvabaiv.Khodabad,l.L.RA5Bom. 146)

THE PARSI MARRIAGE AND DIVORCE ACT, 1936 List of Amending Acts/Adaptation Orders

1. Repealing and Amending Act, 1937 (20 of 1937)

2. Adaptation of Laws Order, 1950                                          

3. Part BStates (Laws) Act, 1951 (3 of 1951)                           

4. Adaptation of Laws (No. 3) Order, 1956                                         Pondicherry (Extension of Laws) Act, 1968 (26 of 1968)

6. Parsi Marriage and Divorce (Amendment) Act, 1988 (5 of 1988)

7. Marriage Laws (Amendment) Act, 2001(49 of 2001)

THE PARSI MARRIAGE AND DIVORCE ACT, 1936¹

(3 OF 1936)

[23rd April, 1936]

An Act to amend the law relating to marriage and divorce among Parsis.

whereas it is expedient to amend the law relating to marriage and divorce among Parsis; It is hereby enacted as follows:—

Statement of Objects and Reasons.—The Parsi Marriage and Divorce Act at present in force was passed in 1865. Since then circumstances have greatly altered and to some extent there has also been a change in the sentiments and views of the Parsi community. Hence a necessity for some change in the law has been felt for years. The Parsi Central Association took up the question in 1923 and appointed a sub-Committee to suggest amendments. The sub-Committee submitted a report which the Association got printed and circulated for opinion to most other Parsi Associations as well as prominent members of the community both in Bombay and outside. Many suggestions were made, and among them by the Trustees of the Bombay Parsi Panchayat who had the advantage of seeing the suggestions of others. The Central Association adopted the suggestions of the Panchayat Trustees and reprinted the whole and again circulated it. Fresh suggestions were thereupon made in the press, on the platform, by associations and individuals. These were fully considered by the Trustees as well as the Association and the present draft is the result. On the whole it represents the views of the great majority of the community, and has been approved by leading Parsis like Sir Dinshaw E. Wacha and the late Rt. Hon. Sir Dinshaw F. Mulla”.

Amendment Act 5 of 1988—Statement of Objects and Reasons.—The law relating to marriage and divorce among Parsis is contained in the Parsi Marriage and Divorce Act, 1936. The Act had not been amended recently in view of the policy of the Government not to effect any changes in the personal laws of any minority community unless the initiative comes from such community. The Board of Trustees of the Parsi Panchayat, Bombay has sent some recommendations to Government in the form of proposals to amend the Act. The Minorities Commission which has considered these proposals has also recommended the proposed amendments. The amendments are mainly aimed at enlarging the scope of some of the provisions of the Act so as to bring them on the lines of the provisions of the Hindu Marriage Act, 1955.

2. The main amendments proposed are as follows:—

(1) To provide that the minimum marriage age in respect of males and females shall be 21 and 18 years, respectively. This is also in accord with the recent amendments made to the Child Marriage Restraint Act, 1929.

(2) To provide that divorce can also be obtained on the ground that the defendant had
been incurably of unsound mind for a period of two years or upwards immediately
preceding the filing of the suit or has been suffering continuously or intermittently from
mental disorder of such a kind and to such an extent that the plaintiff cannot reasonably be
expected to live with the defendant. Though this ground is available under the present
provision, it is proposed to be made more comprehensive and to define “mental disorder”
in the Act itself.                                                                                                                                ‘

(3) Insertion of “cruelty” as an additional ground for divorce.

(4) Insertion of a new provision to provide for divorce by mutual consent.

1 The Act has been extended to the new Provinces and merged States by the Merged States (Laws) Act 59 of 1949 and to the States of Manipur, Tripura and Vindhya Pradesh by the Union Territories (Laws) Act 30 of 1950. Manipur and Tripura are full-fledged States now, see Act 81 of 1971, Ss. 3 and 4 (w.e.f. 3-12-1971). Vindhya Pradesh is a part of the Madhya Pradesh State now, see Act 37 of 1956, S. 9.

It has been extended to (2) Dadra and Nagar Haveli by Regulation 6 of 1963 and 2) Pondicherry by Act 26 of 1968.

(5) It is proposed to provide that in any matrimonial proceedings under the Act if the plaintiff has no independent income sufficient for her or his support, then the defendant should pay to the plaintiff, monthly or weekly, during the suit, such expenses and sum as the Court considers reasonable.

(6) Provision for payment of permanent alimony and maintenance to the plaintiff having regard to the defendant’s own income and other property of the plaintiff and the conduct of the parties and other circumstances which the Court may take into consideration.

(7) To provide that all proceedings in a Court under the Act shall be conducted wi
camera and it shall not be lawful for any reason to print or publish any part of such
proceedings without the previous permission of the Court. Contravention of these
provisions is proposed to be made punishable with fine which may extend to one thousand
rupees.

                              I—PRELIMINARY

1. Short title, extent and commencement.—(1) This Act may be called the

parsi marriage and divorce act, 1936.

(2) ²[It extends to the whole of India except the State of Jammu and
Kashmir]:                      

Provided that the Central Government may, in respect of ³[territories which, immediately before the 1st November, 1956, were comprised in Part B States], by notification in the Official Gazette, direct that the provisions of this Act relating to the constitution and powers of Parsi Matrimonial Courts and to appeals from the decisions and orders of such Courts shall apply with such modifications as may be specified in the notification.

(3) It shall come into force on such date⁴ as the Central Government may, by notification in the Official Gazette, appoint.

State Amendment—[Pondicheny].—In its application to the Union Territory of Pondicherry, after the proviso to sub-S. (2), add the following:—

“Provided further that nothing contained in this Act shall apply to the Renoncants of the
Union Territory of Pondicherry.”—Pondicherry Act 26 of 1%8,S. 3(l)andSch.                 

2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,—

(1) “Chief Justice” includes senior Judge;

(2) “Court” means a Court constituted under this Act;

(3) to “desert”, together with its grammatical variations and cognate expressions, means to desert the other party to a marriage without reasonable cause and without the consent, or against the will, of such party;

(4) “grievous hurt” means—                                                                                             

(a) emasculation;                                                                     

(b) permanent privation of the sight of either eye;

(c) permanent privation of the hearing of either ear;        

(cf) privation of any member or joint;

(e) destruction or permanent impairing of the powers of any member or joint;

2. Substituted by ActSof 1951,S. Sand Sck, for certain words (w.e.f. 1-4-1951).

3. Substituted by the Adaptation of Laws (No. 3) Order, 1956, for certain words (w.e.f 1-11-1956).

4. Brought into force on 22-6-1936.

(/) permanent disfiguration of the head or face; or (g) any hurt which endangers life;

(5) “husband” means a Parsi husband;

(6) “marriage” means a marriage between Parsis whether contracted before or after the commencement of this Act;

(7) a “Parsi” means a Parsi Zoroastrian;

(8) “priest” means a Parsi priest and includes Dastur and Mobed; and

(9) “wife” means a Parsi wife.

II—MARRIAGES BETWEEN PARSIS

3. Requisites to validity of Parsi marriages.—⁵[(1)] No marriage shall be valid if—

(a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I; or

(b) such marriage is not solemnized according to the Parsi form of ceremony called “Ashirvad” by a priest in the presence of two Parsi witnesses other than such priest; or

⁶[(c) in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.]

⁷[(2) Notwithstanding that a marriage is invalid under any of the provisions of sub-section (1), any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate.]

Objects and Reasons—Clause 3.—This corresponds to the present section 3 (of the Act of 1865), the only change made in which is in the table of prohibited degrees of relationship. The new table is based on clear principles in accordance with Parsi religion and custom, and is more concise and at the same time more comprehensive than the present one.

4. Remarriage when unlawful.—(1) No Parsi (whether such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the lifetime of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved, and, if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act, 1865 (15 of 1865)⁸, or under this Act, except after a divorce, declaration or dissolution as aforesaid under either of the said Acts.

(2) Every marriage contracted contrary to the provisions of sub-section (1) shall be void.

Objects and Reasons—Clause 4.—This corresponds to the present section 4 (of the Act of 1865). The alteration is made to suit altered circumstances. The present law provides for the dissolution of a previous Parsi marriage only before contracting a new one, as in 1865 it was not contemplated that a Parsi could contract any other than a Parsi marriage under the Parsi law. At present cases of such other marriages are fairly common. Such a marriage while

5. S. 3 renumbered as sub-S. (1) thereof by Act 5 of 1988, S. 2 (w.e.f. 15-4-1988).

6. Substituted by Act 5 of 1988, S. 2, for Cl. (c) (w.e.f. 15-4-1988).

7. Inserted by Act 5 of 1988, S. 2 (w.e.f. 15-4-1988).

8. Repealed by this Act.

                                                                                                        .

(2 OF 1892)

                                        [29thjanuary,1892]

An Act to validate certain marriages solemnized under Part VI of the Indian Christian Marriage Act, 1872.

whereas provision is made in Part VI of the Indian Christian Marriage Act, 1872 (15 of 1872), for the solemnization of marriages between persons of whom both are ²[Indian Christians], but not of marriages between persons of whom one only is ²[an Indian Christian];

and whereas persons licensed under section 9 of the said Act have in diverse parts of ³[India], through ignorance of the law, permitted marriages to be solemnized in their presence under the said Part between persons of whom one is ²[an Indian Christian] and the other is not ²[an Indian Christian];

and whereas it is expedient that such marriages, having been solemnized, in good faith should be validated;

It is hereby enacted as follows:—

1. Commencement.—[Repealed by the Repealing and Amending Act, 1914 (10 of ]9~[4), section 3 and schedule II].

2. Definition.—In this Act the expression ²[Indian Christian] has the same meaning as in the Indian Christian Marriage Act, 1872 (15 of 1872).

3. Validation of irregular marriages.—All marriages which have already been solemnized under Part VI of the Indian Christian Marriage Act, 1872 (15 of 1872), between persons of whom one only was ²[an Indian Christian], shall be as good and vaMd in law as if such marriages had been solemnized between persons of whom both were ²[Indian Christians]:

Provided that nothing in this section shall apply to any marriage which has been judicially declared to be null and void, or to any case where either of the parties has, since the solemnization of such marriage and prior to the commencement of this Act, contracted a valid marriage.

4. Validation of records of irregular marriages.—Certificates of marriages which are declared by the last foregoing section to be good and valid in law, and register-books, and certified copies of true and duly authenticated extracts therefrom, deposited in compliance with the law for the time being in force, in so far as the register-books and extracts relate to such marriages as aforesaid, shall be received as evidence of such marriages as if such marriages had been solemnized between persons of whom both were ²[Indian Christians].

5. Application of Act to marriages under Act 5 of 1865.—References in this Act to the Indian Christian Marriage Act, 1872 (15 of 1872), shall, so far as may

1. Short title was given by Short Titles Act 14 of 1897.

This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation 3 of 1872.

It has been extended to Dadra and Nagar Haveli by Regulation 6 of 1963.

2. Substituted by A.0.1950.

3. Substituted by Act 3 of 1951.

                                            MARRIAGES VALIDATION ACT, 1892                                   

be requisite, be construed as applying also to the corresponding portions of the Indian Marriage Act, 1865.

6. Penalty for solemnizing irregular marriages.—If any person licensed under section 9 of the said Act to grant certificates of marriage between ⁴[Indian Christians] shall at any time after the commencement of this Act solemnize or affect to solemnize any marriage under Part VI of the said Act or grant any such certificate as therein mentioned, knowing that one of the parties to such marriage or affected marriage was at the date of such solemnization not a Christian, he shall be liable to have his license cancelled, and in addition thereto he shall be deemed to have been guilty of an offence prohibited by section 73 of the said Act, and shall be punishable accordingly.

THE MARRIAGES VALIDATION ACT, 1892¹

(2 OF 1892)

                                      [29thjanuary,1892]

An Act to validate certain marriages solemnized under Part VI of the Indian Christian Marriage Act, 1872.

whereas provision is made in Part VI of the Indian Christian Marriage Act, 1872 (15 of 1872), for the solemnization of marriages between persons of whom both are ²[Indian Christians], but not of marriages between persons of whom one only is ²[an Indian Christian];

and whereas persons licensed under section 9 of the said Act have in diverse parts of ³[India], through ignorance of the law, permitted marriages to be solemnized in their presence under the said Part between persons of whom one is ²[an Indian Christian] and the other is not ²[an Indian Christian];

and whereas it is expedient that such marriages, having been solemnized, in good faith should be validated;

It is hereby enacted as follows:—

1. Commencement.—[Repealed by the Repealing and Amending Act, 1914 (10 of ]9~[4), section 3 and schedule II].

2. Definition.—In this Act the expression ²[Indian Christian] has the same meaning as in the Indian Christian Marriage Act, 1872 (15 of 1872).

3. Validation of irregular marriages.—All marriages which have already been solemnized under Part VI of the Indian Christian Marriage Act, 1872 (15 of 1872), between persons of whom one only was ²[an Indian Christian], shall be as good and vaMd in law as if such marriages had been solemnized between persons of whom both were ²[Indian Christians]:

Provided that nothing in this section shall apply to any marriage which has been judicially declared to be null and void, or to any case where either of the parties has, since the solemnization of such marriage and prior to the commencement of this Act, contracted a valid marriage.

4. Validation of records of irregular marriages.—Certificates of marriages which are declared by the last foregoing section to be good and valid in law, and register-books, and certified copies of true and duly authenticated extracts therefrom, deposited in compliance with the law for the time being in force, in so far as the register-books and extracts relate to such marriages as aforesaid, shall be received as evidence of such marriages as if such marriages had been solemnized between persons of whom both were ²[Indian Christians].

5. Application of Act to marriages under Act 5 of 1865.—References in this Act to the Indian Christian Marriage Act, 1872 (15 of 1872), shall, so far as may

1. Short title was given by Short Titles Act 14 of 1897.

This Act has been declared to be in force in the Sonthal Parganas by the Sonthal Parganas Settlement Regulation 3 of 1872.

It has been extended to Dadra and Nagar Haveli by Regulation 6 of 1963.

2. Substituted by A.0.1950.

3. Substituted by Act 3 of 1951.

                                                        MARRIAGES VALIDATION ACT, 1892                                   

be requisite, be construed as applying also to the corresponding portions of the Indian Marriage Act, 1865.

6. Penalty for solemnizing irregular marriages.—If any person licensed under section 9 of the said Act to grant certificates of marriage between ⁴[Indian Christians] shall at any time after the commencement of this Act solemnize or affect to solemnize any marriage under Part VI of the said Act or grant any such certificate as therein mentioned, knowing that one of the parties to such marriage or affected marriage was at the date of such solemnization not a Christian, he shall be liable to have his license cancelled, and in addition thereto he shall be deemed to have been guilty of an offence prohibited by section 73 of the said Act, and shall be punishable accordingly.

THE ARYA MARRIAGE VALIDATION ACT, 1937′

(19 OF 1937)

[Uth April, 1937]

An Act to recognize and remove doubts as to the validity of inter-marriages current among Arya Samajists.

whereas it is expedient to recognize and place beyond doubt the validity of inter-marriages of a class of Hindus known as Arya Samajists; It is hereby enacted as follows:—

1. Short title and extent.—(1) This Act may be called the arya marriage validation act, 1937.

^![(2) It extends to the whole of India except ²[the territories which immediately before the 1st November, 1956, were comprised in Part B States] and applies also to citizens of India wherever they may be.]

2. Marriage between Arya Samajists³ not to be invalid.—Notwithstanding any law, usage or custom to the contrary no marriage contracted whether before or after the commencement of this Act between two persons being at the time of the marriage Arya Samajists shall be invalid or shall be deemed ever to have been invalid by reason only of the fact that the parties at any time belonged to different castes or different sub-castes of Hindus or that either or both of the parties at any time belonged to a religion other than Hinduism.

1. Substituted by A.0.1950.

2. Substituted by the Adaptation of Laws Order, 1956, for the words “Part B States” these Part B States were Hyderabad, J&K, Mysore, Pepsu, Rajas than, Saurashtra and Travencore.

3. Hindu Marriage Act, 1955 now applies to Arya Samajists as well. See section 2(«).

THE AN AND MARRIAGE ACT, 1909

(7OF1909)

                                                                                                               [22nd October, 1909]
An Act to remove doubts as to the validity of the marriage ceremony common
among the Sikhs called Anand.

whereas it is expedient to remove any doubts as to the validity of the marriage ceremony common among the Sikhs called Anand;

It is hereby enacted as follows:—                                               

Statement of Objects and Reasons.—The object of the Bill is to set at rest doubts which may be raised of the validity of the marriage rite of the Sikhs called “Anand”.

This form of marriage has long been practised among the Sikhs but there are good reasons to believe that in the absence of validating enactment, doubts may be thrown upon it and Sikhs may have to face great difficulties in future and incur heavy expenses on suits instituted in the Civil Courts. It is also apprehended that in the absence of such law some Judicial Officers may be uncertain as to the validity of this orthodox Sikh custom.

It is desirable therefore, that all doubts should be set at rest for the future bypassing this enactment which merely validates and accepting the rite by following any new principles.

1. Short title and extent.—(1) This Act may be called the anand marriage Acr,1909.

(2) It extends to the whole of India ^J[except the State of Jarnmu and Kashmir].

2. Validity of Anand marriage.—All marriages which may be or may have been duly solemnised according to the Sikh Marriage ceremony called Anand shall be and shall be deemed to have been with effect from the date of the solemnization of each respectively, good and valid in law.

3. Exemption of certain marriages from Act.—Nothing in this Act shall apply to—

(a) any marriage between persons not professing the Sikh religion, or

(b) any marriage which has been judicially declared to be null and void.

4. Saving of marriages solemnized according to other ceremonies.—

Nothing in this Act shall affect the validity of any marriage duly solemnized according to any other marriage ceremony customary among the Sikhs.

5. Non-validation of marriages within prohibited degrees.—Nothing in this Act shall be deemed to validate any marriage between persons who are related to each other in any degree of consanguinity or affinity which would, according to the customary law of the Sikhs, render a marriage between them illegal.

1. Substituted by Act 48 of 1959, S. 3 and Sch.l, for certain words (w.e.f. 1-2-1960).

A student asks a teacher, “What is love?“The teacher said, “in order to answer your question, go to the wheat field and choose the biggest wheat and come back.

But the rule is: you can go through them only once and cannot turn back to pick.”

The student went to the field, go thru first row, he saw one big wheat, but he wonders….may be there is a bigger one later.

Then he saw another bigger one… but may be there is an even bigger one waiting for him.

Later, when he finished more than half of the wheat field, he started to realize that the wheat was not as big as the previous one he saw, he know he has missed the biggest one, and he regretted.

So, he ended up went back to the teacher with empty hand.

The teacher told him, “…this is love… you keep looking for a better one, but when later you realize, you have already miss the person….”

*“What is marriage then?” the student asked.

The teacher said, “in order to answer your question, go to the corn field and choose the biggest corn and come back. But the rule is: you can go through them only once and cannot turn back to pick.”

The student went to the corn field, this time he is careful not to repeat the previous mistake, when he reach the middle of the field, he has picked one medium corn that he feel satisfy, and come back to the teacher.

The teacher told him, “this time you bring back a corn…. you look for one that is just nice, and you have faith and believe this is the best one you get…. this is marriage

marriage is compulsory and the proof of marriage is ordinarily by production of Certificate of Marriage procured from the Register maintained by the Civil Registrar and issued by the concerned Civil Registrar appointed for the purpose by the Government. The procedural aspects about registration of marriages are contained in Articles 1075 to 1081 of the Portuguese (Civil) Code which is the common Civil Code in force in the State. It is pointed out in the affidavit filed on behalf of the respondent-State of Goa that the Hindu Act is not in force in the said State since it has not been extended to the State either by the Goa, Daman and Diu Laws Regulations, 1962 or by the Goa, Daman and Diu Laws No.2 Regulations, 1963 by which Central Acts have been extended to the State after the liberation of the State. Procedure for marriages is also provided in Code of Civil Registration (Portuguese) which is in force in the State. The Foreign Marriage Act, 1969 also provides for registration of marriages.

7. As noted above, the Hindu Act enables the State Government to make rules with regard to the registration of marriages. Under sub-section (2) of section 8, if the State Government is of the opinion that such registration should be compulsory, it can so provide. In that event, the person contravening any rule made in this regard shall be punishable with fine.

8. In various States, different marriage Acts are in operation e.g. in Jammu and Kashmir, Jammu and Kashmir Hindu Marriage Act, 1980 empowers the Government to make rules to provide that the parties (Hindus) shall have their particulars relating to marriages entered in such a manner as may be prescribed_for facilitating proof of such marriages. Admittedly, no rules have been framed. As/regards Muslims, Section 3 of the Jammu and Kashmir Muslim Marriages Registration Act, 1981 provides that marriage contracted between Muslims after the commencement of the Act shall be registered in the manner provided therein within 30 days from the date of conclusion of Nikah ceremony. However, the Act has not been enforced. So far as Christians are/concerned, the Jammu and Kashmir Christian Marriage and Divorce Act, 1957 provides for registration of marriages in terms of sections 26 and 37 for registration of marriages solemnized by Minister of Religion and marriages solemnized by, or in the presence of a Marriage Registrar, respectively.

9. In exercise of powers conferred by section 8 of the Hindu Act, the State of U.P. has framed U.P. Hindu Marriage Registration Rules, 1973 which have been notified in 1973. In the affidavit filed by the State Government, it is stated that the marriages are being registered after enactment of the/Rules,

10. In Pondicherry, the Pondicherry. Hindu Marriage (Registration) Rules, 1969 have come into force w.e.f. 7th April 1969. All Sub-Registrars of Pondicherry have been appointed under section 6 of the Indian Registration Act, 1908 (in short the ‘Registration Act’) as Marriage Registrars for the purposes of registering marriages. In the State of Haryana, the Haryana Hindu Marriage Registration Rules, 2001 under Section 8 of the Hindu Act have been notified. In the State of West Bengal, Hindu Marriage Registration Rules, 1958 have been notified.

11. From the affidavit filed on behalf of the State of Tripura, it appears that the said State has introduced rules called Tripura Hindu Marriage Registration Rules, 1957. It has also introduced Tripura Special Marriage Rules, 1989 under the Special Marriage Act, 1954. So far as the State of Karnataka is concerned, it appears that Registration of Hindu Marriages (Karnataka) Rules, 1966 have been framed. It further appears that Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976 has been introduced. Section 3 of the Act requires compulsory registration of all marriages contracted in the State.

12. So far as the Union Territory of Chandigarh is concerned, Hindu Marriage Registration Rules, 1966 have been framed.

13. In the affidavit filed on behalf of the National Commission for Women (in short the ‘National Commission’), it has been indicated as follows:

“That the Commission is of the opinion that non-registration of marriages affects the most and hence has since its inception supported the proposal for legislation on compulsory registration of marriages. Such a law would be of critical importance to various women related issues such as —

(a) prevention of child marriages and to ensure minimum age of marriage.

(b) prevention of marriages without the consent of the parties ;

(c) Check illegal bigamy/polygamy;

(d) Enabling married women to claim their right to live in the matrimonial house, maintenance, etc.;

(e) Enabling widows to claim their inheritance rights and other benefits and privileges which they are entitled to after the death of their husband ;

(f) Deterring men from deserting women after marriage ;

(g) Deterring parents/guardians from selling daughters young girls to any person including a foreigner, under the garb of marriage. “

14. As noted supra, except four statutes applicable to States of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh, registration of marriages is not compulsory in any of the other States.

15. As is evident from narration of facts though most of the States have framed rules regarding registration of marriages, registration of marriage is not compulsory in several States. If the record of marriage is kept, to a large extent, the dispute concerning solemnization of marriages between two persons is avoided. As rightly contended by the National Commission, in most cases non­registration of marriages affects the women to a great measure. If the marriage is registered, it also provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage having taken [place. Though, the registration itself cannot be a proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily registrable. The legislative intent in enacting section 8 of the Hindu Act is apparent from the use of the expression “for the purpose of facilitating the proof of Hindu Marriages”.

16. As a natural consequence, the effect ofnon registration would be that the presumption which is available from registration of marriages would be denied to a person whose marriage is not registered.

17. Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized.

18. Accordingly, we direct the States and the Central Government to take the following steps:—

(i)   The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be\ given by the States and the matter shall be kept open for objections*, for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the Rules into force.

(ii) The officer appointed under the said Rules of the States shall be duly authorized to registers, the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non­registration of marriages or for filing false declaration shall also be provided for in the said Rules. Needless to add that the object of the said Rules shall be to carry out the directions of this Court.

(Hi) As and when the Central Government enacts a comprehensive statute, the same Tshall be placed before this Court for scrutiny.

(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.

19. The Registry is directed to handover a copy of this order to learned Solicitor General for necessary follow-up action.

20. We record our appreciation for the valuable assistance rendered by Mr. G.E. Vahanvati, the Solicitor General and Mr. Ranjeet Kumar, senior advocate, who appeared as amicus curiae.

From V                                                                      

(See sub-rule (1) of rule 11)

Register of Marriages

Register of Marriages for the year…

      From VI

(see sub-rule (1) of rule 11)

Register of refusal of Marriages

Register of refusal of Marriages for the year

Form VII

(See rule 15)

Application for obtaining certified copy/Certified extract

Date:

From :

(Name and address of the persons(s)) To The Registrar of Marriages,

Sub : Certified copy/Certified extract Sir,

I, the undersigned, request you that—

(1)……………………….(please  write  the  number)  certified  copy/  certified

extract of the following document(s) may please be provided to me at the earliest.

^l(a) a certificate of registration of a marriage, ‘(b) the extract of the register of marriages

(2) The Particualrs of Marriage— (i) Name of the husband…………..

(ii) Name of the wife………………

(iii) Date of registration of marriage……………..

(iv) Date and no. of a certificate of registration of marriage…………………..

(3) The fees of Rs……………. (rupees………………….) is enclosed herewith.

Place :                                                                             Yours faithfully,
Date :

IN THE SUPREME COURT OF INDIA

Arijit Pasayat & S.H. Kapadia, JJ.

Transfer Petition (Civil) 291 of 2005

14.02.2006¹

.. Petitioner

JUDGMENT/Arijit Pasayat, J.—

1. The origin of marriage amongst Aryans in India, as noted in Mayne’s Hindu Law and Usage, as amongst other ancient peoples is a matter for the Science of anthropology. From the very commencement of the Rigvedic age, marriage was a well-established institution, and the Aryans ideal of marriage was very high.

2. The Convention on the Elimination of All Forms of Discrimination Against Women (in/short ‘CEDAW’) was adopted in 1979 by the United Nations General Assembly. India was a signatory to the Convention on 30th July, 1980 and ratified on 9th July, 1993 with two Declaratory Statements and one Reservation. Article 16(2) of the Convention says “though India agreed on principle that compulsory registration of marriages is highly desirable, it was said as follows:

‘”It is not practical in a vastxcountry like India with its variety of customs, religions and level of literacy’ and has expressed reservation to this very clause to make registration of marriage compulsory”.

3. While a transfer petition was being heard, it was noted with concern that in large number of cases some unscrupulous persons are denying the existence of marriage taking advantage of the situation that in most of/the States there is no official record of the marriage. Notice was issued to various States and Union Territories and learned Solicitor General and Mr. Ranjit Kumar, learned senior counsel were requested to act as Amicus Curiae to assist the Court [in laying down guidelines in the matter of registration of marriages. Without exception, all the States and the Union Territories indicated their stand to the effect that registration of marriages is highly desirable.

4. It has been pointed out that compulsory registration of marriages would be a step in the right direction for the prevention of child marriages still prevalent in many parts of the country. In the Constitution of India, 1950 (in short the ‘Constitution’), List III (the Concurrent List) of the Seventh Schedule provides in Entries 5 and 30 as follows:

“5. Marriage and divorce ; infants and minors ; adoption ; wills, intestacy and succession ; joint family and partition ; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.

30. Vital statistics including registration of births and deaths.”

5. It is to be noted that vital statistics including registration of deaths and births is covered by Entry 30. The registration of marriages would come within the ambit of the expression ‘vital statistics’.

6. From the compilation of relevant legislations in respect of registration of marriages, it appears that there are four Statutes which provide for compulsory registration of marriages. They are: (1) The Bombay Registration of Marriages Act, 1953 (applicable to Maharashtra and Gujarat), (2) The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976, (3) The Himachal Pradesh Registration of Marriages Act, 1996, and (4) The Andhra Pradesh Compulsory Registration of Marriages Act, 2002. In five States, provisions appear to have been made for voluntary registration of Muslim marriages. These are Assam, Bihar, West Bengal, Orissa and Meghalaya. The “Assam Moslem Marriages and Divorce Registration Act, 1935″ the “Orissa Muhammadan Marriages and Divorce Registration Act, 1949″ and the “Bengal Muhammadan Marriages and Divorce Registration Act, 1876″ are the relevant statutes. In Uttar Pradesh also, it appears that the State Government has announced a policy providing for compulsory registration of marriages by the Panchayats and maintenance of its records relating to births and deaths. Under the Special Marriage Act, 1954 which applies to Indian citizens irrespective of religion, each marriage is registered by the Marriage Officer specially appointed for the purpose. The registration of marriage is compulsory under the Indian Christian Marriage Act, 1872. Under the said Act, entries are made in the marriage register of the concerned Church soon after the marriage ceremony along with the signatures of bride and bridegroom, the officiating priest and” the witnesses. The Parsi Marriage and Divorce Act, 1936 makes registration of, marriages compulsory. Under Section 8 of the Hindu Marriage Act, 1955 (in short the ‘Hindu Act’) certain provisions exist for registration of marriages. However, it is left to the discretion of the contracting parties to either solemnize the marriage before the Sub-Registrar or register it after performing the marriage ceremony in conformity with the customary beliefs. However, the Act makes it clear that the validity of the marriage in no way will be affected by omission to make the entry in the register. In Goa, the Law of Marriages which is in force in the territories of Goa, Daman and Diu w.e.f. 26.11.1911 continues to be in force. Under Articles 45 to 47 of the Law of Marriages, registration of

7. The date on which the marriage       

    was solemnized.                            [®1±

1. Whether the marriage was pre­viously registered

         under any other Act or Personal Law.

If "YES", provide details (Attach-Certificate of or Extract of Marriage Register)

9.  We hereby declare —

(i) that a valid marriage was solemnized between us and that the marriage is capable of being registered under section 3 of the Tamil Nadu Registration of Marriages Act, 2009;

(ii) that the conditions prescribed in the respective personal laws intended for the solemnization of marriages have been satisfied ;

(iii) that the two witnesses who have signed below were present at the time of the solemnization of the marriage; and

(v) that no dowry was demanded or given or taken.

10. Name and address of witnesses:

FORM II

(See rule 5(l)(a)) Application for filing Memorandum of  marriage.

The Registrar of marriage,

Sub: Registration of marriage.

Sir,

A   marriage   has   been   solemnized   between   us   on...........   at..........

............and we request that the particulars of our marriage be entered in the

Register of Marriages and that a Certificate of Registration of Marriage be issued to us.

We hereby declare —

(1) that a valid marriage was solemnized between us and that the marriage is capable of being registered under section 3 of the Tamil Nadu Registration of Marriages Act, 2009 ;

(2) that the conditions laid down in our Personal Law have been satisfied ; •

(3) that the particulars given in application are true to the best of our knowl­edge and belief;

(4) that a memorandum of marriage duly filled in (in duplicate) along with the prescribed fees and documents, is enclosed.

Signature :............................

(Husband)
Place :                                               Signature :............................

Date:                                                                                      (Wife)

Encl: (1) Memorandum of Marriage.

(2) Prescribed fees.

(3) Other documents:

(a)...........................

(b)...........................

(c)...........................

INSTRUCTIONS FOR FILLING UP THE APPLICATION AND MEMORANDUM

(1) The memorandum shall be given in duplicate.

(2) Passport size photo of both the parties to the marriage shall be affixed in the Memorandum and another copy shall be enclosed.

(3) Any one of the proofs mentioned in the rules shall be given to prove the following :—

(i)Name.                                                         "]

(ii)Age.                                                             r    For the Parties to the marriage

(iii) Residence.                                               J

(iv) Date and Place of marriage.

(v) Photo identity for the witnesses and for the parties to the marriage.

(4) Self addressed and sufficiently stamped envelope shall be given.

(5) In Item l(d) of the Memorandum, the marital status shall be indicated by the parties to the marriage as per thier personal law.

(6) The fees shall be paid by Cash/D.D./Banker’s cheque, drawn in favour of the Registrar of Marriages.

(STATE EMPLAM)

Government of Tamil Nadu

Form III

Cetificate of Registration of Marriage

(See rule 5(7))

This    is   to   certify   that   Thiru…………………………………………(Name   of

Husband),    S/o.    Thiru………………………………………………………………….residing

at…………………………………………….and Tmt………………………………………………

(Name    of   wife),    D/o.    Thiru………………………………………………..    residing

at………………………………………………….have     furnished    the    particulars     in

Memorandum declaring that their marriage has been solemnized on …………

at………………………(place)   and   that   the   same   has   been   registered   this

day……………………..of……………….20……………….     at     Serial     No……………of

2. ……………………….of Register of Marriages maintained under the Tamil Nadu

Registration of Marriages Act, 2009.

Signature of Registrar of Marriages.

Form IV

(See rule 5(8) Order of refusal for registration of a marriage

I, ………………. Registrar of Marriages, after scrutiny of memo-randum and

other documents submitted with the same and after hearing the parties on the………..day    of…………20….    refuse    to    register    the    said    marriage

between………………………………………..(Husband) and ……………………………(Wife)

for             the              following              reasons…………………

Signature……………………..

Registrar of Marriages.

TABLE