Business Law 2010

MFM 2010-2013 Business Law Divorce Act 1869

Name of Participant Sumaiya Dalal Rahul Mahabare Ashish Mundra Himshree Shelar Prashant Soni

Roll Numbers 68 88 92 105 108

Table of Content
MFM .................................................................................................................................................................... 1 2010-2013 ............................................................................................................................................................. 1 BUSINESS LAW ....................................................................................................................................................... 1 DIVORCE ACT 1869 ................................................................................................................................................. 1 INTRODUCTION: ..................................................................................................................................................... 5 DIFFERENCE BETWEEN THE DIVORCE LAWS IN INDIA AND UNITED KINGDOM: ................................................................. 6 MAIN LEGISLATION: ........................................................................................................................................................................ 6 GROUNDS FOR DIVORCE: ............................................................................................................................................................... 7 PROCEDURE FOR OBTAINING DIVORCE: ........................................................................................................................................ 8 STATEMENT OF OBJECTS AND REASONS OF THE ACT: ................................................................................................................... 8 DEFINITIONS AND INTERPRETATION: ......................................................................................................................... 9 INTERPRETATIONS OF THE ABOVE DEFINITIONS ARE: ................................................................................................................. 10 PROVISIONS OF THE ACT RELATING TO JURISDICTION: ............................................................................................................... 11 PROVISIONS OF THE ACT RELATING TO DISSOLUTION OF MARRIAGE: ........................................................................................ 12 PROVISIONS OF THE ACT RELATING TO DISSOLUTION OF MARRIAGE: ........................................................................................ 15 PROVISIONS OF THE ACT RELATING TO JUDICIAL SEPARATION: .................................................................................................. 16 PROVISIONS FOR PROTECTION OF A DESERTED WIFES PROPERTY: ............................................................................................ 17 PROVISIONS REGARDING RESTITUTION OF CONJUGAL RIGHTS: ................................................................................................. 18 PROVISIONS FOR DAMAGES AND COSTS: .................................................................................................................................... 19 PROVISIONS FOR ALIMONY: ......................................................................................................................................................... 20 PROVISIONS FOR SETTLEMENTS: ............................................................................................................................. 21 PROVISIONS FOR CUSTODY OF THE CHILDREN: ........................................................................................................................... 21 PROCEDURES RELATING TO THE DIVORCE ACT: ......................................................................................................... 22 PROVISIONS REGARDING REMARRIAGE: .................................................................................................................. 23 OTHER PROVISIONS: ..................................................................................................................................................................... 24 SCHEDULE OF FORMS UNDER THE DIVORCE ACT 1869 ................................................................................................ 25 NO. 1- PETITION BY HUSBAND FOR A DISSOLUTION OF MARRIAGE WITH DAMAGES AGAINST CO-RESPONDENT, BY REASON OF ADULTERY ............................................................................................................................................................................... 25 NO.2-RESPONDENT'S STATEMENT IN ANSWER TO NO. 1 .......................................................................................................... 26 NO. 3-CO-RESPONDENT'S STATEMENT IN ANSWER TO NO. 1 ................................................................................................... 27 NO. 4-PETITION FOR DECREE OF NULLITY OF MARRIAGE .......................................................................................................... 28 NO. 5-PETITION BY WIFE FOR JUDICIAL SEPARATION ON THE GROUND OF HER HUSBAND'S ADULTERY ............................... 29 NO.6-STATEMENT IN ANSWER TO NO. 5 .................................................................................................................................... 30 NO. 7-STATEMENT IN REPLY TO NO. 6 ........................................................................................................................................ 31 NO. 8-PETITION FOR A JUDICIAL SEPARATION BY REASON OF CRUELTY ................................................................................... 32 NO. 9-STATEMENT IN ANSWER TO NO. 8 ................................................................................................................................... 33 NO. 10-PETITION FOR REVERSAL OF DECREE OF SEPARATION .................................................................................................. 34 NO.11-PETITION FOR PROTECTION ORDER ................................................................................................................................ 35 NO.12-PETITION FOR ALIMONY PENDING THE SUIT .................................................................................................................. 36 NO. 13-STATEMENT IN ANSWER TO NO. 12 ............................................................................................................................... 37 NO. 14-UNDERTAKING BY MINOR'S NEXT FRIEND TO BE ANSWERABLE FOR RESPONDENT'S COSTS ...................................... 38

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FOOT NOTES: ....................................................................................................................................................... 39

Introduction:
Before the advent of Christianity, Roman law did not prescribe any formalities for marriage or divorce. But after Christ, marriage came to be regarded as a sacrament and the roman church came to be regarded as the supreme authority in all matrimonial matters. It was not until reformation that visible changes began to surface in the Christian concept of marriage. The Protestants looked upon marriage as a civil contract rather than a religious union. The industrial revolution gave a further impetus to the protestant concept of marriage being essentially a contract and therefore a dissoluble union. Many centuries ago, Christians came to India and settled in this country when East India Company assumed ruling power in India and established its own courts. With the establishment of the supreme courts, the common law of England was made applicable in India on many subjects including marriage and divorce among the Christian community. Christian marriages are governed by the Indian Christian marriage act 1872 and divorce by the divorce act 1869. Until 2001, both these acts stood in contradistinction to statutes governing other communities in India. Cases like Solomon v. Chandirah 1968, Jordan v. Chopra 1965, and many others reminded the judiciary from time to time that there was an urgent need to update these acts so that they could become relevant to present social conditions.

Difference between the divorce laws in India and United Kingdom:

Main legislation:
The law system in India is based on the common law and is therefore ultimately derived from the system in England and Wales. Therefore are many similarities between both jurisdictions with the fundamental difference in India the divorce law is based on different faiths and communities. In India the way one achieves divorce is essentially based on what religious community one is part of and if the marriage is an interfaith one than there is special regulation that governs that, these laws are detailed below: Hindu marriage act 1955 pertains to Hindus, Sikhs, and Jains Divorce act 1869- pertains to Christians Parsi marriage and divorce act 1936- pertains to Parsi's Dissolution of Muslim marriages act 1939 - pertains to Muslims Special marriage act 1954 - pertains to divorces from civil marriages and those between different communities In the United Kingdom, divorce legislation is not differentiated on the basis of religion but is mainly secular, these are detailed below: Matrimonial causes act 1973 Family law act 1996

Grounds for divorce:

In India there are five grounds for divorce which are listed below: Adultery- only infidelity needs to be proven by either man or woman Desertion- this occurs when there is a mixture of interruption of cohabitation and justifiable and reasonable absence for 3 years with an intention from the respondent to permanently separate themselves from the petitioner who has been left behind. The same also applies to 7 year absences. Cruelty - includes abuse which is physical as well as mental. However despite presumed gender equality, it is applied differently to men and women Impotency- can include not being able to consummate marriage, one spouse not wanting to do so and could also be due to sterility. Chronic disease- could include STDS, mental and physical illness. Although Christians and Parsi's cannot divorce due to STDS or leprosy. In United Kingdom, there are five facts for irretrievable breakdown of marriage according to matrimonial causes act 1973s 1(2): Adultery- adultery + cruelty of defendant Unreasonable behavior- petitioner cannot be expected to live with respondent Desertion 2 years + consent of respondent or 5 years living apart continuously

Procedure for obtaining divorce:

In India, divorce can be obtained as: Mutual consent divorce- the consent of husband and wife needed on alimony, maintenance and child custody. Contested divorce - if eligible on grounds mentioned above, papers must be submitted to be examined by the judge, if approved then divorce decree granted In United Kingdom, divorce can be obtained by a special procedure. There is no court appearance as the judge just examines the documents and what is mentioned within it and if he/she finds it acceptable grants decree of divorce and it is very rare for these to be defended.

Statement of objects and reasons of the act:

The divorce act came into force on 1st April 1869 and extends to the whole of India except Jammu and Kashmir. The word Indian was omitted by the Indian divorce (amendment) act, 2001. The purpose of this act is twofold: To amend the law relating to divorce of Christians and To confer upon certain courts in India matrimonial jurisdiction not enjoyed by them earlier.

As observed in the case of Pramilla Khosla v. Rajneesh Khosla is that no relief can be granted under this act by any court unless either of the parties professes the Christian religion. As far as decrees of nullity of marriage are concerned two conditions need to be satisfied before the court can exercise jurisdiction under this act: 1. Marriage should have been solemnized in India and 2. The petitioner should be resident of India at the time of presenting the petition However, it was noted in the case of Vincent Joseph Kenneth v. Jacinta Angela Konath that the provisions of this act can be invoked by the parties who are domiciled in India even if the marriage was solemnized outside of India.

Definitions and interpretation:

Section 3 gives a few definitions for the purpose of this act which are discussed below: 1. "High court": High court means with reference to any area:o In a state, the high court of Delhi; o In Delhi, High court of Delhi; o In Himachal Pradesh, the High court of Punjab and Haryana up to and inclusive of the 30th April, 1967 and the High court of Delhi thereafter; o In Manipur and Tripura, the High court of Assam; o In the Andaman and Nicobar islands, the high court at Kolkata; o In [Lakshadweep ], the High court of Kerala; o 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. 3. "District court": "District court" means, in the case of any petition under this act, the court of the district judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this act, the husband and wife reside or last resided together. 4. "Court": "Court" means the high court or the district court, as the case may be. 5. "Minor children": "Minor children" means, in the case of sons of native fathers, boys, who have not completed the age of sixteen years, and, in the case of daughters of native fathers, girls who have not completed the age of thirteen years: in other cases it means unmarried children who have not completed the age of eighteen years. 6. "Incestuous adultery": "Incestuous adultery" means adultery committed by a husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage by reason of her being within the prohibited degrees of 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. 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 [India] or elsewhere.

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9. "Desertion": "Desertion" implies abandonment against the wish of the person charging it; and

10. "Property": "Property" includes in the case of the wife any property to which she is entitled for an estate in reminder or reversion or as trustee, executrix or administratrix; and the date of the death of the testator or interstate shall be deemed to be the time at which any such wife becomes entitled as executrix or administratrix.

Interpretations of the above definitions are:

1. Court for the purpose of this act means the high court or district court as the case maybe. 2. District court means the court of the district judge where the marriage was solemnized or where either parties are currently residing or last resided. 3. Minor children in case of native fathers are boys who have not completed the age of 16 years and girls who have not completed the age of 13 years. In other cases, it is unmarried boys or girls who have not completed the age of 18 years. 4. The terms 'incestuous adultery' and 'bigamy with adultery' have been omitted by the Indian divorce (amendment) act, 2001. 5. Desertion means abandonment of a spouse against the wish of such spouse. 6. Marriage with another woman means marriage with of a man with any other woman during the lifetime of the former wife irrespective of whether such marriage was solemnized in India or any other country. 7. Property includes any property which a wife is entitled for an estate in remainder or reversion or as a trustee, executrix or administratrix.

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Provisions of the act relating to jurisdiction:

1. Section 4: matrimonial jurisdiction of high courts - the jurisdiction exercised by the high courts at the time when the divorce act came into force in respect of divorce a mensa et toro, and in all other matrimonial, is to be exercised by such high courts and district courts subject to the provisions in the said act. 2. However, after the passing of the family courts act 1984, it has been held that the family courts also have concurrent jurisdiction to pass a decree for dissolution of marriage under this act (Dr. Mary v. Dr. Vincent) 3. Section 5: enforcement of earlier decrees and orders - any decree or order passed by the then supreme court of judicature at Calcutta, madras or Bombay in exercise of their ecclesiastical or matrimonial jurisdiction, before the act came into force, may be enforced and dealt with by the High Courts and District Courts, respectively. 4. Section 6: pending suits - regarding all matrimonial suits and proceedings pending in any high court when this act came into operation are to be dealt with and decided by such court as if they had been originally instituted therein under this act. 5. Section 7: court to act on principles of English divorce court - this section has been repealed by the Indian divorce (amendment) act, 2001. 6. Section 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. The high court also has the power to withdraw any such suit and transfer it for trial and disposal to any district judge within the high court's jurisdiction.

7. Section 9: reference to high court - if 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, or in the execution of the decree therein or order thereon, the court may, either of its own motion or on the application any of the parties, draw up a statement of the case and refer it, with the courts own opinion thereon, to the decision of the high court.

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Provisions of the act relating to dissolution of marriage:

1. When a Christian husband or wife can obtain a decree of dissolution of marriage under sections 10 and 11 - as observed in George Sebastian v. Molly Joseph, the ecclesiastical tribunals have no jurisdiction to pass a decree of divorce in Christian marriages. 2. As per recent amendments, ten grounds have been enumerated which are available to both parties while praying for dissolution of marriage: I. Adultery - although the term adultery has not been defined in the act, it refers to the willing sexual intercourse between a man and a woman one of whom is married to the third party. As direct evidence of adultery is not insisted upon and circumstantial evidence is generally relied upon by the courts. (Simon v. Bakla) however, hearsay or simple communication between a man and woman does not amount to proof of adultery. (Raspin v. Raspin 1953). Also petition presented by a husband, the petitioner must make the alleged adulterer a correspondent to the said petition, unless he is excused from so doing on one of the following grounds as allowed by the court:i. That the respondent is leading the life of prostitute, and the petitioner knows of no person with whom the adultery has been committed; ii. That the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it; iii. That the alleged adulterer is dead. Ceasing to be a Christian by conversion to another religion Unsound mind for a continuous period of not less than 2 years immediately preceding the presentation of the petition Suffering from virulent and incurable form of leprosy for a continuous period of not less than 2 years immediately preceding the presentation of the petition Suffering from venereal disease in a communicable form for a continuous period of not less than 2 years immediately preceding the presentation of the petition Not heard to be alive for a period of seven years or more by those who would normally hear from that spouse Willfully refused to consummate marriage and therefore the marriage has not been consummated Failed to comply with the decree for restitution of conjugal rights for a period of 2 years or more after the passing of the decree Desertion for at least 2 years immediately preceding the presentation of the petition with the presence of 2 elements in such desertion; actual separation and intention to desert. (Bull v. Bull 1933) however, it is important to note that if the husband creates circumstances which compel the wife to leave the house it is husband and not the wife who is guilty of desertion. (Handa v. Handa 1985) Cruelty - as the term cruelty is not legally defined, it is dependent on the facts of each case. (Sheldon v. Sheldon 1966). While considering the petition on the grounds of cruelty the courts must keep in mind the mental, physical and emotional condition of the parties, their character and social status.

II. III. IV. V. VI. VII. VIII. IX.

X.

3. When a Christian wife can obtain a decree of dissolution of marriage under section 10 - in addition to the above grounds, a Christian wife can file a petition for dissolution of marriage if the husband has been guilty of rape, sodomy or bestiality since the solemnization of marriage. Although this act does not define rape, reference can be made to section 375 of Indian penal code wherein rape is defined as:

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"A man is said to commit rape who has sexual intercourse with a woman against her will or without her consent or with her consent where her consent has been obtained by putting her or any person in whom she is interested in fear of death or fear or with her consent when the man knows that he is not her husband and that her consent has been given because she believes that he is another man to whom she is or believes herself to be lawfully married or with her consent, when at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance she is unable to understand the nature and consequences of that to which she gives consent or with or without consent when she is under the age of sixteen years." 4. Divorce by mutual consent under section 10-a divorce by mutual consent, the petition can be presented by both parties together on the grounds that: I. They have been living separately for a period of 2 years or more; II. They have not been able to live together; and III. They have mutually agreed that the marriage should be dissolved. 5. When such a petition is presented by both the parties not earlier than six months and not later than eighteen months, the court shall, on being satisfied after hearing both the parties and making necessary inquiries pass a decree declaring the marriage dissolved with effect from the date of the decree. 6. Whenever a petition is filed for dissolution of marriage it is the primary duty of the court to ensure that there is no collusion between the parties I. The court must dismiss the dissolution petition under section 13, if it is: II. Satisfied that the petitioner's case is not proved or III. Not satisfied that the alleged adultery is proved or IV. Found that the petitioner has during the marriage been accessory to or has connived at the going through of the marriage of the adultery of the other party or has condoned the adultery complained of or V. Satisfied that the petition is presented in collusion with either of the respondents. 7. When the court must grant the petition - in case the court is satisfied that the evidence of the case proved by the petitioner and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through the form of marriage, or the adultery 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 of dissolution of the marriage. 8. The court is not bound to pronounce the decree if the petitioner: I. Himself or herself has been guilty of adultery or II. Unreasonably delayed in presenting or prosecuting the petition or III. Guilty of cruelty towards the spouse or IV. Desertion or willful separation from the spouse before the adultery complained of and without any reasonable excuse or V. Guilty of willful neglect or misconduct towards the spouse. 9. Relief in case of opposition on certain grounds - when a suit is instituted for dissolution if the respondent opposes the relief sought on specified grounds the court may give to the respondent

14 the same relief to which he or she would have been entitled to if he or she had presented the petition for matrimonial relief on the following cases: I. Dissolution suit filed by the husband - his adultery, cruelty or desertion and II. Dissolution suit filed by the wife - her adultery, cruelty or desertion. 10. This is done in order to: I. Avoid multiplicity of suits between the same parties and II. Enable the courts to render full and complete justice. 11. Decree nisi and confirmation of decree under section 16 and 17 - decree nisi is a conditional decree which needs to be confirmed by the court later on. Every decree for dissolution of marriage made by a high court is to be a decree nisi. And such a decree is to be made absolute after the expiration of such time, not less than six months from the pronouncing thereof, as the high court, by general or special order directs. During this period any person can approach the high court praying that 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. 12. On such 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. 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. During the period when the decree nisi is in force, the status of the petitioner and respondent does not change ( Sunandra v. Subbarao 1957) when a suit is pending before a district judge, any person who suspects collusion therein may apply to the high court which may if it thinks fit, remove such suit to itself and try and determine the same as the court of original jurisdiction.

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Provisions of the act relating to dissolution of marriage:

1. When a Christian husband or wife can obtain a decree of nullity under section 18 and 19 - the husband or wife have the right to present a petition to the district court praying that his or her marriage to be declared null and void on any of the following grounds: Impotency - impotency of the other spouse both at the time of marriage and at the time of filing the suit is ground on which a decree of nullity can be obtained under the act. Proof of impotency can be deduced from medical reports and if the spouse refuses to undergo a medical examination the court can draw an adverse inference about the same. (Biswas v. Biswas) Prohibited degree of consanguinity or affinity - consanguinity denotes a relationship by descent or collaterally (example: mother and son, cousins). Affinity means a relationship not by blood but by marriage (example: man and his wife's sister). A decree of nullity can be granted on the ground that the parties to the marriage are within prohibited degrees of consanguinity or affinity. Lunacy or idiocy - a decree of nullity can be passed on the ground that either party to the marriage was a lunatic (i.e. A person of unsound mind) or idiot (i.e. mentally defective person who is unable to guard himself against common physical dangers) at the time of the marriage. However, short temper or erratic behavior does make a person a lunatic or an idiot. Marriage contracted during the life time of the former spouse - this clause emphasizes the rule of monogamy amongst Christians. The petitioner must prove that there was a previous marriage of the spouse that such marriage was in full force and effect when the second marriage took place and that the former spouse of such earlier marriage was alive on the date of the second marriage. Consent obtained by force or fraud - a decree of nullity can be passed if consent of either party was obtained by fraud or force. Example: the bride's pregnancy (with another man) concealed at the time of marriage is fraud as discussed in the case of Raju v. Janaki. However, consent obtained on a misrepresentation of the bride's virginity or character does not amount to fraud as noted in the case of David v. Kalpana. In case of such void marriages, a third party cannot petition the court, as such right is vested only in the spouses to such a marriage (Simpson v. Biswas 1980) 2. Section 21 relating to children of annulled marriage is applicable only if the marriage is annulled on any of the following grounds: That a former husband or wife is alive, the second marriage is contracted in good faith and full belief of the parties that such former husband or wife was dead or On the grounds of insanity In such cases, the names of the children begotten before the annulment decree are to be specified in such decree and they become entitled to succeed to their parent's property as if they were legitimate children.

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Provisions of the act relating to judicial separation:

1. Judicial separation: after the amendments in the divorce act, section 22 clarifies that a court cannot pass a decree of divorce a mensa et toro. however, a court can pass a decree of judicial separation on any of the following grounds: adultery or cruelty or desertion for 2 years or more Such a petition can be filed either by the husband or the wife and a decree on such a petition would have the effect of a divorce a mensa et toro. (i.e. separation in bed and board) 2. Lapse of time is not an absolute bar to a suit for judicial separation. however, whenever there is undue delay in presenting such a petition, it is a matter which the court should take note of by calling the petitioner to explain the delay (boulting v. boulting) 3. Position of separated wife: When a decree for judicial separation is passed as long as the separation continues, the wife is to be regarded as unmarried with respect to any property which she may acquire or devolve upon her. such property can be disposed of by her as if she was unmarried and on her death interstate such property devolves as if her husband was not alive. section 25 states that a separated wife so long as the separation continues, the wife is to be regarded as unmarried for the purpose of entering into contracts for the purpose of wrongs and injuries and for suing and being sued in civil proceedings. the husband is not to be liable in respect of any contract or for any act done by her during the period of judicial separation. 4. Reversal of decree of separation: Section 26 lays down that an either spouse may present a petition to the court which had passed such a decree of judicial separation praying that the decree be reversed on the ground that it was obtained ex parte. when the decree has been passed on the grounds of desertion, it can also be shown to the court that there was reasonable excuse for the alleged desertion. in such cases the petitioner must prove: Reasons for absence, explaining satisfactorily the circumstances that gave rise to his absence. Put forth circumstances and arguments that the decree of judicial separation was wrongly passed. (Dalchand Kashiram v. anna razi 1950)

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Provisions for protection of a deserted wifes property:

1. A wife who has been deserted by her husband and to whom as per section 20 of the Indian succession act 1925, does not apply may apply to the court at any time after such desertion, for an order to protect any property acquired by her or of which she is possessed, and also property which she may acquire or become possessed of after such desertion, against her husband or his creditors or any person claiming under him. 2. If the court is satisfied that such wife was deserted without reasonable excuse and that she is maintaining herself by her own industry or property it may pass an order protecting her earnings and other property from her husband and other persons claiming under him and from the husbands creditors. 3. Such an order can be varied or discharged on an application by the husband or any person claiming under him, or by any creditor of the husband, if the court is satisfied that the desertion has ceased or if there any other good reason to do so. 4. Under section 30, if the husband or any person claiming under him or his creditors seizes or continues to hold the wifes property even after notice of any such order, he becomes liable not only to redeliver the specific property to her but also to pay her a sum equal to double its value. 5. Lastly section 31, lays down that as long as such a protection order remains in force and she continues to be deserted, she is to be regarded in all respects with regard to their property, contracts and capacity to sue and be sued, to be in the same position as if she had obtained a decree of judicial separation under the act.

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Provisions regarding restitution of conjugal rights:

1. Section 32 states that if either the husband of wife has withdrawn from the society of the other without reasonable excuse, the other party may apply to the court for the restitution of conjugal rights. if the court is satisfied about the truth of the statements made in such a petition and that there is no legal grounds why such an application should not be granted, it may decree restitution of conjugal rights. 2. It is further provided that anything which amounts to a ground for judicial separation or nullity of marriage, would be a complete defense to such a petition. 3. Withdrawal from society: a lawful wedlock between a man and a woman imposes an obligation on both the spouses to live and cohabit with such other. withdrawal from society means cessation of cohabitation as a voluntary act of one of the spouses. the withdrawal from society of a spouse amounts to withdrawal from the totality of conjugal relationship. 4. Without reasonable excuse: under the act, it is not enough that one spouse has withdrawn from the society of the other. it is also necessary that such withdrawal should be without reasonable excuse. therefore, the following cases have been held to be reasonable cause: the husband insisting that his wife should eat meat and drink liquor. persistent nagging of the wife by the husbands parents act of physical violence addiction to drinks or drugs accompanied by violent temper 5. Burden of proof: in the petition filed for restitution of conjugal rights the burden of proof is always on the petitioner. the petitioner must successfully prove on the strength of his own case. the petitioner cannot succeed only on the grounds that the defenses of the respondent have not been established.

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Provisions for damages and costs:

The provisions for damages and costs contained in section 34 and 35 of the divorce act have been deleted by the amendment of 2001. However, the following three provisions of the act which deal with payment of costs may be noted: 1. Under section 16, in suits filed for dissolution of marriage the high court may order the cost of counsel, witnesses and other costs to be paid by both the parties or by one or more of them as it thinks fit. 2. Under section 49, when the petitioner is a minor, the petition can be filed only after his next friend gives an undertaking in writing to be answerable for costs. 3. Under section 55, no appeals can be filed only on the subject of cost.

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Provisions for alimony:

The term alimony is used to describe the allowance granted by a court to a woman who is not living with her husband. Alimony is of two types: I) Alimony Pendent Lite: it is the alimony which the court directs the husband to pay to the wife during the pendency of the suit. an application can be made by the wife for expenses of the proceedings and for alimony during the pendency of a matrimonial suit filed under the act, whether by the husband or by the wife. such a petition is to be served on the husband and after hearing both the parties the court may pass an order for payment of such expenses and for alimony pendente lite. the rationale of the provision is to enable the wife to maintain herself until the court passes an order in the pending matrimonial petition. it is now provided by the amendment of 2001 that petitions filed for expenses of the proceedings and for alimony pendente lite should be disposed off as far as possible within 60 days of the service of such a petition on the husband. where the husband has no property or income, the court would be justified in refusing to order any alimony pendente lite (fletcher v. fletcher). the Allahabad high court has held that the fact that the wife can go and live with her father does not mean that she cannot claim alimony pendente lite from the husband (joshi v. ganga devi). the court would also consider what the wifes own income is. however the fact that she is possessed of ornaments would not disentitle her from claiming such alimony (kuriakose v. kuriakose1958). the Kerala high court has held that even if a wife has independent means of income, she can claim alimony pendente lite (Matthew v. kuruvilla 1990). II) Permanent Alimony: it is the alimony granted by the court when passing the decree. when the court passes the final decree for dissolution of marriage or judicial separation it may order the husband to pay to the wife, a gross sum of money, or an annual amount for any term not exceeding the wifes life as the court thinks reasonable. for this purpose, the court may direct that proper documents be executed by all necessary parties. in passing such an order the court must have regard to: the wifes fortune ability of the husband conduct of both parties. 2. In such cases the court can also pass an order directing the husband to pay to the wife such monthly or weekly sums for her maintenance and support as the court may think reasonable. if for any reason the husband afterwards becomes unable to make the payment to his wife the court can discharge or modify the order, or even suspend it temporarily, wholly or in part and again review the same later on as it deems fit. the court may also afterwards increase the amount payable by the husband on a monthly or weekly basis if circumstances exist to justify a large amount payable as alimony to the wife (iswarayya v. iswarayya 1930). In Attwood v. Attwood 1968, the court of appeals in England laid down the following general principles to be kept in mind when determining the quantum of payment of alimony to be awarded to the wife: I) Whether during the cohabitation, the wife and the children shared with the husband a living appropriate to their income. II) In case whether the cohabitation was disrupted by the husbands matrimonial offence the subsequent standard of living of the wife and children should not suffer, as far as possible. III) Generally speaking, the wife and the children should not be regulated to a to a significantly lower standard of living than that of the husband. IV) the reasonable expenses of each party must be taken into account V) the wifes income and even her potential earning capacity must always be kept in mind VI) The courts order must not depress the husband below the subsistence level.

21 i. Payment of alimony to the wife or her trustee: in all cases of grant of alimony, the court may direct the amount to be paid directly to the wife or to a trustee on her behalf. such a trustee must be approved by the court, which can impose any terms or restrictions on him. the court can also appoint a new trustee from time to time if it deems it expedient to do so.

Provisions for settlements:

Section 39 dealing with the courts power to order a settlement of the wifes property has been deleted by the amendment of 2001. however, under section 40 the court may before passing a decree for dissolution or nullity inquire into the existence of anti-nuptial or post-nuptial settlements and pass orders as regards the property settled for the benefit of the husband or of the wife or of the children or of the children and parents as the court may deem fit. the only restriction is that no order can be passed for the benefit of the parents at the expense of the children. (Matheson v. Matheson 1935)

Provisions for custody of the children:

Custody of children is a delicate but unavoidable matter involved in most matrimonial proceedings. 1. Section 41 therefore lays down that in any suit for judicial separation the court may pass orders as it deems fit as regards the custody, maintenance and education of the minor children whose parents marriage is the subject matter of the suit. such orders maybe in the nature of interim orders or maybe a part of the decree itself. If found necessary, the court may also direct proceedings to be taken for placing such children under the protection of the court. it is now provided by the amendment of 2001, that such an application should be disposed off as far as possible within 60 days from the date of service of the notice on the respondent. 2. Such orders can also be made after a decree of judicial separation has been passed by the court. 3. Section 43 states that such an order can also be passed in a suit for obtaining dissolution of marriage or a decree of nullity of marriage. 4. Furthermore section 44 provides that even after a final decree for dissolution of marriage or a decree of nullity of marriage, an application to the court can be made at any time for the custody, maintenance and education of a child or for placing such a child under the protection of the court. the person to whom the custody of a child is given can also be directed not to remove such child outside the courts jurisdiction (Duncan v. Duncan 1939). it is to be remembered there are no hard and fast rules that can be laid down in matters relating to the custody of children and the court has to exercise its discretion according to the facts and circumstances of each case. the interest and welfare of the child are always the paramount consideration in all matrimonial suits. if the child is old enough to form an intelligent opinion, the childs opinion should also be given due weight in deciding which parent shall have custody of the child (ammal v. ammal 1924). even when one of the parents is given the custody of the child, the other parent may be given visiting rights (sarin v. suman 1984)

22

Procedures relating to the divorce act:

All proceedings under this act are regulated by the code of civil procedure subject to any specific provision to the contrary in the divorce act. if however, there is any specific provision in the act, that provision and not the one under the civil procedure code, would apply to the matrimonial proceedings. 1. Forms Of Petitions: the schedule to the divorce act sets out various forms to be used with such variations as the circumstances may require for all proceedings under the act. when a petition is filed for a decree of dissolution of marriage or nullity of marriage or judicial separation the petition must state that there is no collusion or connivance between the petitioner and the other party to the marriage. 2. Suits By Lunatics And Minors: if the husband or the wife is a lunatic or an idiot any suit under the act (except for a suit for restitution of conjugal rights) may be filed on his or her behalf by the committee or some other person entitled to his or her custody. if the petitioner is a minor, he can sue by his next friend to be approved by the court and such petitions can be presented only after the next friend has given an undertaking in writing to be answerable for the costs of such a suit. such an undertaking is to be filed in the court and the next friend becomes liable to pay costs as if he was the plaintiff in an ordinary suit. 3. Service Of Petition: every petition under the act is to be served on the party who may be in or outside India in such manner as the high court may direct by a general or special order. in a fit case, the court may dispense with service of a petition if it deems it necessary or expedient to do so. 4. Mode Of Taking Evidence: under section 51, all proceedings under the act the witness are to be examined orally in the court and any party can offer himself or herself as a witness. this examination of a partys witness by the party itself is known as examination-in-chief. instead of deposing orally in the court an affidavit of the witness can also be filed. this affidavit would then constitute the examination-in-chief. after that the opposition party has a right to put oral questions to such a witness. this is known as cross-examination. thereafter, the party who brought the witness may wish to ask further questions to his witness. this is known as re-examination. 5. Competence Of Spouses To Give Evidence As To Cruelty Or Desertion: section 52 lays down that in cases where a husband or a wife has filed a petition for dissolution of marriage on the ground of adultery, cruelty or desertion the husband and wife are competent to give evidence relating to such cruelty or desertion in the court. 6. Hearings In Camera: of all judicial proceedings the dirtiest linen washed in public and the greatest amount of mudslinging is to be found in matrimonial proceedings. section 53 states that the court thinks fit any proceedings under the divorce act may be conducted wholly or in part behind closed doors. 7. Power To Adjourn: section 54 clarifies that the court may from time to time adjourn the hearing of any petition held under the act. 8. Enforcement Of Orders And Decrees: section 55 provides that all orders and decrees passed by a court under the act, can be enforced in the same manner as orders and decrees of the court made in the exercise of its original civil jurisdiction are enforced. 9. Appeals: all decrees and orders of the court passed under the act can be appealed against subject to the laws rules and orders for the time being in force. however, no appeal can be filed only as regards the costs of the proceedings. under section 56, any person can file an appeal in the supreme court:

23 i. from any decree except a decree nisi or order under the act passed by a high court on appeal or otherwise; ii. from any decree except a decree nisi or order under the act passed by a high court in the exercise of its original jurisdiction from which an appeal does not lie to the high court.

Provisions regarding remarriage:

1. Section 57 has now been amended by the amendment of 2001. the six month waiting period had been abolished and it is now provided that it would be lawful for either party to the marriage to marry again in cases where a decree for dissolution or for nullity of the marriage has been passed and the time for filling an appeal has expired without an appeal being filed in any court including the supreme court or such an appeal has been presented but also been dismissed and the decree or dismissal has become final. 2. it is expressly provided that no clergyman n holy orders of the church of England can be compelled to solemnize the marriage of any person whose former marriage was dissolved on the ground of his or her adultery. likewise, no such person can be exposed to any suit, penalty or censure for solemnizing or refusing to solemnize the marriage of any such person. 3. lastly, if any minister of a church refuses to perform such a remarriage he must permit any other minister in holy orders of the said church entitled to officiate within the diocese to perform such marriage service in such church or chapel.

24

Other provisions:
1. Section 60 provides that every decree for judicial separation and every order for protection of property obtained by a wife under the act is to be deemed to be valid so far as may be necessary for protecting any person dealing with the wife until such decree or order is reversed or discharged. Even if such decree or order is reversed, discharged or varied it does not 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 after the date of the decree or order but before the date of its reversal, discharge or variation. Likewise, an indemnity is given to all persons making any payment to the wife without notice of the reversal, discharge or variation of such decree or order. 2. Section 61 clarifies that after the act came into force no person competent to present a petition under section 2 or 10 of the act can maintain a suit for criminal conversation with his wife. However, this section is no bar for the prosecution and punishment of the adulterer under section 497 of the indian penal code (bwye v. Kirk 1928). 3. Section 62 empowers the high court to make rules under the act, as it may consider expedient from time to time. Such rules may also be altered or added to from time to time. All such rules: Should be consistent with the provisions of the act and the civil procedure court and Must be published in the official gazette. If a rule made under section 62 is not consistent with the act, it will not be valid (Friedlander v. Friedlander)

25

Schedule Of Forms Under The Divorce Act 1869

NO. 1- PETITION BY HUSBAND FOR A DISSOLUTION OF MARRIAGE WITH DAMAGES AGAINST CORESPONDENT, BY REASON OF ADULTERY (Sections 10 and 34) In the (High) Court of .. To the Hon'ble Mr. Justice .or To the Judge of . The .day . of 19 The petition of A.B. of Sheweth, 1. That your petitioner was on the day of,.. one thousand nine hundred and lawfully married to C.B., then C.D., spinster at . (a) 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, five children, of whom two sons only survive, aged respectively twelve and fourteen years. 3. That during the three years immediately preceding .. the day of . one thousand nine hundred and ..X.Y. was constantly with a 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. 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. (b). Form of Verification I, A.B., the petitioner named in the above petition, do declare that what is stated therein is true to the best of my information and belief. (a) If the marriage was solemnized out of India, the adultery must be shown to have been committed in India. (b) The petition must be signed by the petitioner.

26
NO.2-RESPONDENT'S STATEMENT IN ANSWER TO NO. 1 In the Court of the.... day of...... Between A.B., petitioner,.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.

27
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. corespondent. X.Y., the co-respondent, in answer to the petition filed in this cause, sayeth 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.

28
NO. 4-PETITION FOR DECREE OF NULLITY OF MARRIAGE (Section 18) In the (High) Court of . To the Hon'ble Mr. Justice . Or to the Judge of .. The ..day of .. ,19 .. The petition of A.B. falsely called A.D., Sheweth, 1. That on the . day of .; one thousand nine hundred and .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 some place in India. 2. That from the said . day of . one thousand nine hundred and .., until the month of one thousand nine hundred and .., your petitioner lived and cohabited with the said C.D., at diverse places, and particularly at . aforesaid. 3. That the said C.D. has never consummated the said pretended marriage by carnal copulation. 4. That at the time of the celebration of your petitioners 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 C.D. with respect to the subject of this suit. Your petitioner therefore prays that this (Hon'ble) Court will declare that the said marriage is null and void. (Signed) A.B. Form of Verification: See No. 1

29
NO. 5-PETITION BY WIFE FOR JUDICIAL SEPARATION ON THE GROUND OF HER HUSBAND'S ADULTERY (Section 22) In the (High) Court of To the Hon'ble Mr. Justice . or To the Judge of The ............ day of ..19 The petition of C.B., of ..the wife of A.B. Sheweth, 1. That on the day of . one thousand nine hundred, your petitioner, then C.D., was lawfully married to A.B., at the Church of ., in the .. 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, three children, to wit, etc., etc., (a). 3. That on diverse occasions in or about the months of August, September and October, one thousand nine hundred and ., 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 October, November and December, one thousand nine hundred and .., the said A.B., 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 A.B. 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. (b) (a) State the respective ages of the children. (b) The petition must be signed by the petitioner. Form of Verification: See No. I

30
NO.6-STATEMENT IN ANSWER TO NO. 5 In the (High) Court of . B. against B. The . day of .The respondent, A.B., by W.Y. his attorney or vakil sayeth,(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. (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) A.B.

31
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 that said adultery of the respondent with E.F. as in the second 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) C.B.

32
NO. 8-PETITION FOR A JUDICIAL SEPARATION BY REASON OF CRUELTY (Section 22) In the (High) Court of . To the Honble Mr. Justice . or To the Judge of The .. day of 19 The petition of A.B. (wife of C.B.) or ............................................................... Sheweth, 1. That on the .. day of ,one thousand nine hundred and ......................, your petitioner, then A.D., 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 .. one thousand nine hundred and .., 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 petitioners said marriage, the said C.B. habitually conducted himself towards your petitioner with great harshness and cruelty, frequently 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 months of . one thousand nine hundred and .., 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 petitioners 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 .. one thousand nine hundred and , 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 ..one thousand nine hundred and ..,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 ., one thousand nine hundred and ., 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 (Honble) 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) A.B. Form of Verification: See No. 1

33
NO. 9-STATEMENT IN ANSWER 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.J. his attorney [or vakil] sayeth that he denies that he has been guilty of cruelty towards the said A.B., as alleged in the said petition. (Signed) C.B.

34
NO. 10-PETITION FOR REVERSAL OF DECREE OF SEPARATION (Section 24) In the (High) Court of . To the Honble Mr. Justice or To the Judge of .. The .. day of . 19 .. The petition .. A.B.,of Sheweth, 1. That your petitioner was on the .. day of .. lawfully married to .. 2. That on the day of., this (Honble) 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 defense.] or That there was reasonable ground for your petitioner leaving his said wife, for that his said wife [Here state any legal grounds justifying the petitioner's separation from his wife] Your petitioner, therefore, prays, that this (Honble) Court will reverse the said decree. (Signed) A.B. Form of Verification: See No. 1

35
NO.11-PETITION FOR PROTECTION ORDER (Section 27) In the (High) Court of . To the Honble Mr. Justice or To the Judge of .. The day of 19 .. The petition of C.B. , of .. the wife of A.B. Sheweth, That on the day of . She was lawfully married to A.B., at .. That she lived and cohabited with the said A.B. 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 A.B., 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 A.B., and from all creditors and persons claiming under him. (Signed) C.B.

36
NO.12-PETITION FOR ALIMONY PENDING THE SUIT (Section 36) In the (High) Court of ..................................... B. against B. To the Honble Mr. Justice.................... or To the Judge of . The .day of 19 .. The petition of C.B., the lawful wife of A.B. Sheweth, 1. That the said A.B. 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 of the value of Rs. 5,000 or some other considerable amount. Your petitioner, therefore, prays that this (Honble) Court will decree such sum or sums of money by way of alimony, pending the suit, as to this (Honble) Court may seem meet. (Signed) C.B. Form of Verification: See No. 1

37
NO. 13-STATEMENT IN ANSWER TO NO. 12 In the (High) Court of .. B. against B. A.B. of .., the above-mentioned respondent, in answer . to the petition for alimony, pending the suit, of C.B., says1. 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 verify believe of no larger value. And I say that a portion of the said plate, furniture and other chattels and effects of 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 monies. And I say that, save as therein before 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. I admit that I am entitled under the Will of my 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 fathers Will, upon the death of my mother, to a legacy of Rs. 7,000, out of which I shall, have to pay to my fathers 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 fathers 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 sathat, 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 to Rs .. and that she has ever since withheld and still withholds from me the same sum. (Signed) A.B.

38
NO. 14-UNDERTAKING BY MINOR'S NEXT FRIEND TO BE ANSWERABLE FOR RESPONDENT'S COSTS (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 that, if this said C.D. fails to pay to the said D.D. when and in such manner as the Court shall order all 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 19.. (Signed) A.B.

39
Foot Notes:

1. 2. 3. 4. 5. 6. 7. 8.

The words "in India" omitted by Act No. 3 of 1951. Substituted for the original first paragraph by AO 1948. Substituted by AO 1950, for certain words. Substituted for the words "except Part B States" by Act No. 3 of 1951. Substituted by Act No. 25 of 1926. Inserted by Act No. 30 of 1927. Substituted for the former clause by AO. (No. 2) 1956. Substituted by the Himachal Pradesh (Adaptation of Laws on State & Concurrent Subjects) Order,1968, w.e.f. 1st. November, 1966. 9. Substituted by the Lakshadweep (Alteration of Name ) Adaptation of Laws Order, 1974, for "Laccadive, Minicoy and Amindivi Islands" w.e.f. 1st. November, 1973. 10. Inserted by the Punjab Reorganization (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order 1968, w.e.f. 1st. November, 1966. 11. Substituted by AO 1950, for the former clause. 12. Substituted for "the dominions of Her Majesty" by AO 1950. 13. Added by Act No. 10 of 1912. 14. Substituted for the original section 17A by AO 1937. 15. Substituted by Act No. 3 of 1951, for certain words. 16. Second paragraph omitted, Act No. 3 of 1951. 17. Now see the Indian Succession Act, 1925 (Act No. 39 of Year 1925). 18. Now see the Code of Civil Procedure, 1908 (Act No. 5 of Year 1908). 19. 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" repealed by Act No. 7 of 1870. 20. The words "in the first, second and third cases mentioned in this section", repealed by Act No. 7 of 1870. 21. The words "shall bear a stamp or eight annas and" repealed by Act No. 7 of 1870. 22. Substituted by AO 1950, for the words "the Provinces" which had been substituted by AO 1948, for the words "British India". 23. Substituted by AO 1950 for the words "Her Majesty in Council". 24. The word "United" repealed by Act No. 12 of 1873. 25. The words "and Ireland" repealed by Act No. 12 of 1873.