CHAPTRR-V

HINDU AND MUSLIM LAW ON DIVORCE AND THE CONCERNED ACTS,

CAUSES OF THE INDEPENDANT INDIA.

An Act further to amend the Hindu Marriage Act,

1955 and the Special Marriage Act, 1954.

(Received the assent of the President on 27th May, 1976)

Be it enacted by Parliament in the Twenty-seventh

year of the Republic of India as follows:

UNIT-A

PRELIMINARY

5.1. Short Title: This Act may be called Marriage Laws

(Amendment) Act, 1976.

UNIT-B

AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955

5.2. Amendment of Section 5: In the Hindu Marriage Act,

1955 (hereinafter refrrred to as the Hindu Marriage Act),

in section 5, for clause

(ii), the following clause shall be substituted, namely:

"(ii) at the time of the marriage, neither party-

(a) is incapable of giving valid consent to it in

consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been

suffering from mental disorder of such an extent as

to be unfit for marriage and the prcreation of

children; or
 -:230:-

(c) has been subject to recurrent attacks of insanity

or epilepsy;".
3. Amendment of section 9: In section 9 of the Hindu
Marriage Act/-

(a) in sub-section (1), the brackets and figure

"(1)"shall be omitted and to that sub-section as so
amended, the following Explanation shall be added, namely:
"Explanation.-Where a question arises whether there has
been reasonable excuse for withdrawal from the society,
the burden of proving realsonable excuse shall be on the
person who has withdrawn from the society.",
(b) sub-section(2) shall be omitted.

4. Amendment of section 10: In section 10 of the Hindu

Marriage Act, for sub-section (1) and the Explanation
thereunder, the following sub-section shall be
substituted, namely:-
"(1) Either Party to a marriage, whether solemnized
before or after the commencement of this Act may present a
petition praying for a decree for judicial separation on
any of the grounds specified in sub-section (1) of section
13, and in the case of a wife also on any of the grounds
specified in sub-section (2) thereof, as grounds on which
a petition for divorce might have been presented."

5. Amendment of section 11: In section 11 of the Hindu

Marriage Act, after the words "presented by either party
thereto", the words "against the other party" shall be inserted.
 231:-

6. Amendment of secticxi 12: In secticai 12 of the Hindu Marriage

Act,-

(a) in sub-section (1)/-

(i) for clause (a), the following clause shall be

substituted, namely:-
"(a) that the marriage has not been consummated owing
to the impootence of the respondent; or";

(ii) in clause (c), for the words "or fraud", the words
"or by fraud as to the nature of the ceremony or as to any
material fact or circumstance concerning the respondednt"
shall be substituted;
(b) in sub-section (2), in clause (b), in sub-clause
(ii), for the words "the grounds for a decree" the words
"the grounds for a decree" the words "the said ground"
shall be substituted.
7. Amendment of section 13: In section 13 of the Hindu
Marriage Act,-
(a) in sub-section (1),-
(i) for clause (i), the follwing clauses shall be
substituted, namely:-
"(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous
period of not less than two years immediately preceding
the presentation of the petition; or";
(ii) for clause(iii), the following shall substituted,
namely:-
 -:232:-

"(iii) 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
repondent.

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;

(b) the expression "psychopathic disorder" means a

persistent disorder or disability of mind (whether or not
including sub-normality of intelligence) which results in
abnormaolly aggressive or seriously irresponsible cnduct
on the part of the other party, and whether or not it
requires or is susceptible to medical treatment; or";

(iii) in clauses (iv) and (v), the words, "for a period

of not less than three years immediately preceding the
presentation of the petition", shall be omitted;

(iv) after clause (vii), the following Explanation

shall be inserted, namely:-
Explanation-In this sub-section, the expression
"desertion" means the desertion of the petitioner by the
other party to the marriage without reasonable cause and
without the consent or against the wish of such pary, and
 -:233:-

includes the wilful neglect of the petitioner by the other

party to the marriage, and its grammatical variations and

cognate expressions shall be construced accordingly.",

(b) in sub-section (lA), for the words "two years", in

the two places where they occur, the words "one year"

shall be substituted;

(c) in sub-section (2),-

(i) in clause (ii),for the word "bestiality",the word

"bestiality; or" shall be substituted;

(ii) after clause (ii) as so amended, the following

clauses shall be inserted, namely:-

"(iii) that in a suit under section 18 of the Hindu

Adoptions and Maintenance Act, 1956, or in a proceeding

under section 125 of the code of Criminal Procedure, 1973

(or in under the corresponding section 488 of the Code of

Criminal procedure, 1898, a decree or order, as the case

may be, has been passed against the husband awarding

maintenace to the wife notwithstanding that she was living

apart and that since the passing of such decree or order,1

cohabitation between the parties has not been resumed for

onw year or upwards; or

(iv) that her marriage (whether consummated or not) was

solemnized before she attained the age of fifteen years

and she has repudiated the marriage after attaining that

age but before attaining the age of eighteen years.

Explanation-This clause applies v^ether the marriage was solannized

befexE ac after the (juniaDaiHit cf tiie ^te^:i^e laws (AiaditaiL) Pet, 1576.".
 -:234:-

8. Insertion of new sections 13A and 13B: After

section 13 of the Hindu Marriage Act as so amended, the
following sections shall be inserted, namely:-
"13A. Alternate relief in divorce proceedings: In any
proceeding under this Act, on a petition for dissolution
of marriage by a decree of divorce, except in so far as
the petition is founded on the grounds mentioned in
clauses (ii),(vi) and (vii) of sub-section (1) of section
13, the court may, if it considers it just so to do having
regard to the circumstances of the case, pass instead a
decreefor judicial separation.

Divorce by mutual consent: (1) Subject to the provisions

of this Act a petition for dissolution of marriage by a
decree of divorce 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 Marriage Laws (Amendment) Act, 1976, 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) On the motion of both the parties 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 court shall, on being
 -:235

satisfied, after hhearing the parties and after 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 of divorce declaring the marriage to
be disolved with effect from the date of the decree.".
9. Amendment of section 14:In section 14 of the Hindu
Marriage Act,-
(i) in sub-section(l),-
(a) for the words "unless at the date of presentation
of the petition three years have elapsed", the words
"unless at the date of the presentation of the petition
one year has elapsed" shall be substituted;
(b) in the proviso,-
(1) for the words "before three years have elapsed",
the words "before one year has elapsed" shall be
substituted;
(2) for the words "expiry of three years," the words
"expiry of one year" shall be substituted;
(3) for the words "expiration of the said three years",
the words "expiration of the said one year" shall be
substituted;
(ii) in sub-section(2),-
(a) for the words "expiration of three years", the
words "expiration of one year" shall be substituted;
(b) for the words "said three year", the words "said
one year" shall be substituted.
 -:236:-

10. Amendment of section 15: In section 15 of the Hindu

Marriage Act, the proviso shall be omitted.
11. Substitution of new section for section 16: For
section 16 of the Hindu Marriage Act, the following
section shall be substituted namely:-
"16. Legitimacy of children of void and voidable
marriages (1) Notwithstanding that a marriage is null and
void under section 11, any child of such marriage who
would have been legitimate if the marriage had been valid,
shall be legitimate, whether such shild 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 12, 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 had been dissolved instead
of being annulled, shall be deemed to be their legitimate
child notwithstanding the decree of nullity.

(3) Nothin contained in sub-section (1) or sub-section

(2) shall be construed as conferring upon any child of
marriage which is null and void or which is annulled by a
decree of nullity under section 12, any rights in or to
 -:237;

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."

"19. Court to which petition shall be presented:Every

petition under this Act shall be presented to the district
court within the local limits of whose ordinary original
civil jurisdiction-
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of
the petition, resides, or
(iii) the parties to the marriage last resided together,
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 or
more by those persons who would naturally have heard of
him if he were alive.".
13. Amendment of section 20: In section 20 of the
Hindu Marriage Act, in sub-section (1), for the words "and
shall also state", the words and figures "and,-except in a
petition under section 11, shall also state" shall be
substituted.
14. Insertion of new sections 2lA, 21B and 21C: After
 -:238:-

section 21 of the Hindu Marriage Act, the following

sections shall be inserted, namely:-
"2lA. Power to transfer petitions in certain cases:(1)
where-
(a) a petition under this Act has been presented to a
district court having jurisdiction by a party to a
marriage praying for a decree for judicial separation
under section 10 or for a decree of divorce under section
13, and
(b) another petition under this Act has been presented
thereafter by the other party to the marriage praying for
a decree for judicial separation under section 10 or for
decree of divorce under section 13 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 petitions 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 prtitions shall be
heard and disposed of together by the district court in
which the earlier petition was presented.
 -:239:-

(3) In a case where clause (b) of sub-section (2)

applies, the court or the Government, as the case may be,
competent under the Code of Civil Procedure, 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 had been empowered so to do under the said Code.
21B. 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 is 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 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.

(15) Rmendinent • of sectioTi '23: In section 23 of : the

Hindu Marriage Act,-
(a) in sub-section (1),-
(i) in clause (a), after the words "the petitioner" the
brackets, words, letters and figures "[except in cases
where the relief is sought by him on the ground specified
 -:240:-

in sub-clause (a), sub-clause (b) or sub-clause (c) of

clause (ii) of section 5]" shall be inserted;

(ii) in clause (b), the words, brackets, letter and

figures "in clause (1) of sub-section (1) of section 10,
or" shall be omitted;
(iii) after clause (b), the following clause shall be
inserted, namely:-
"(bb) when a divorce is sought on the ground of mutual
consent, such consent has not been obtained by force,
fraud or undue influence, and".;
(iv) in clause (c), for the words "the petition", the
words, brackets and figures "the petition (not being a
petition presented under section 11)" shall be substituted

(b) to sub-section (2), the following proviso shall be

addedat the end, namely:-
"Provided that nothing contaied in this sub-section
shall apply to any proceeding wherei relief is sought on
any of the grounds pecified in clause(ii), clause(iii),
clause (iv), clause (v), clause (vi) or clause (vii) of
sub-section (1) of section 13.";
(c) after sub-section (2) as so amended, the following
sub-sections shall be inserted, namely:-
"(3) Por 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
 -:241:-

do, adjourn the proceedings 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 where a marriage is dissoved by a
decree of divorce, the court passing the decree shall give
a copy thereof free of cost to each of the parties.".
16. Insertion of new section 23A: After section 23 of
the Hindu Marriage Act, the following section shall be
inserted, namely:-
"23A. Relief for respondent in divorce and other
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 petitioner's adultery, cruelty or desertion, but
also make a counter-claim for 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 groung."

17. Amendment of section 25: In section 25 of the

Hindu Marriage Act,-
 -:242:-

(a) in sub-section (1),-

(i) the words, "while the applicantremains unmarried,"
shall be omitted;
(ii) for the words "and the conduct of the parties,"
the words, "the conduct of the parties and other
circumstances of the case" shall be substituted;
(b) in sub-section (3), for the words "it shall
rescind the order", the words "it may at the instance of
the other party vary, modify or rescind any such order in
such manner as the court may deem just" shall be
substituted.
19. Substitution of new sections for section 28: For
section 28 of the Hindu marriage Act, the following
sections shall be substituted, namely:-
"28. Appeals from decrees and orders: (1) All decrees
made by the court in any proceeding under this Act 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 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.
(2) Orders made by the court in any proceeding under
this Act under section 25 or section 26 shall, subject to
the provisions of su-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
 -:243:-

decisions of the court given in 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 thirty days from the date of the decree
or order.
28A. Enforcement of decrees and order: All decrees and
orders made by the court in any proceeding under this Act
shall be enforce 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;".

UNIT-C
AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954

20. Amendment of section 2: In section 2 of the

Special Marriage Act, 1954 (hereinafter referred to as the
Special Marriage Act), for clause (e), the following
clause shall be substituted, namely:-
'(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;".
21. Amendment of section 4: In section 4 of the
 -:244:-

Special Marriage Act, for clause (b), the following clause

shall be substituted, namely:-

"(b) neither party-

(i) is incapable of giving a valid consent to it in

consequence of unsoundness of mind; or

(ii) 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 procreation

of children; or

(iii) has been subject to recurrent attacks of insanity

or epilepsy;".

22. Insertion of new section 2lA: In Chapter IV of the

Special Marriage Act, after section 21, the following

section shall be inserted, namely:-

"2lA. 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 reates a disability shall

also not apply.".

23. Amendment of section 22: To section 22 of the

Special Marriage Act, the following Explanation shall be

added at the end, namely:-

"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
 -:245:-

person who has withdrawn from the society.".

24. Amendment of section 23: In section 23 of the
Special Marriage Act, in sub-section (1), in clause (a),
after the word, brackets and figure "sub-section (1)", the
words, brackets, figure and letter "and sub-section (lA)"
shall be inserted.
25. Amendment of section 24: In section 24 of the
Special Marriage Act, in sub-section (1), for the words
"and may be so declared", the words "and may, on petition
presented by either party thereto against the other party,
be so declared shall be substitued.
26. Substitution of new section for section 26: For
section 26 of the Special Marriage Act, the following
section shall be substituted, namely:-
"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 validm
shall be legitimate, whether wuch child is born before or
after the commencement of the Marriage Law (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
 -:246:-

been the legitimate child of the parties to the marriage

if a the date of decree it has been dissolved ins ead 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 cons rued 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

righ s in or to the property of any person, othr than the

parents, in any case where, but for the passing of this

Act, such child would have been incapable of pssessing or

acquiring any such rights by reason of his not being the

legitimate child of his parents.".

27. Amendment of section 27: In section 27 of the

Marriage Act, in sub-section (1),-

(a) for clauses (a) and (b), the following clauses

shall be substituted, namely;:-

"(a) has, after the solemnization of the marriage, had

voluntary sexual intercourse with any person other than

his or her spouse; or

(b) has deserted the petitioner for a continuous period of

not less than two years immediately preceding the

presentation of the petition; or";

(b) in clause (c),l the proviso shall be mitted;

(c) for clauses (e) and (f), the following clauses

shall be substituted, namely:-

 -:247:-

'(e) has been incurably of unsound mind, or has been

suffering continuously or intermittently frm mental
disorder of such a kind and to such an extent that the
petitioner dannot reasonably be expected to live with
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;
(b) the expression "psychopathic disorder" means a
persistent disorder or disability of mind (whether or not
including sub-normality of intelligence) which resul s in
abnormally aggressive or serioulsy irresponsible conduct
on the part of the respondent, and whether or not it
requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a
communicable form; or;
(d) in clause (g), the word "for a period of not less
than three years immediately preceding the presentation of
the petition" shall be omitted;
(e) after clause (h), the following Explanation shall
be inserted, namely:-
'Explanation-In this sub-section, the expression
"desertion" means desertion of the petitioner by the other
party t the marriage without reasonable cause and without
the consent or against the wish of such party, and
 -:248:-

includes the wilful neglect of the petitioner by the other

party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordinly,"
(f) the words "and by the wife on the ground that her
husband has, since the solemnization of the marriage, been
guilty of rape, sodomy or bestiality" occurring at the end
shall be omitted;
(g) after sub-section (1), the following sub-section
whall be inserted, namely:-
"(lA) A wife may also present a petition for divorce to
the district court on the ground,-
(i) that her husband has, since the solemnization of
the marriage, ben guilty of rape sodomy or bestiality;
(ii) that in a suit under section 18 of the Hindu
Adoptions and • Maintenance Act, 1956, or in a proceeding
under section 125 of the Code of Criminal procedure, 1973
(or under the corresponding section 488 of the Code of
Criminal Procedure, 1898, a decree or order, as the case,
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.".
28. Insertion of new section 27A: After section 27 of
the Special Marriage Act as so amended, the following
section shall be inserted, namely:-
 -:249:-

"27. Alternate relief in divorce proceeding: In any

proceeding under this Act, on a petition for dissolution
of marriage by a 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 s to do having regard to the
circumstances of the case, pass instead a decree for
judicial separation.".
29. Amendment of section 28: In section 28 of the
Special Marriage Act, in sub-section (2) for the words,
brackets and figure "On the motion of both the parties
made not earlier than one year after the date of the
presentation of the petition referred t in sub-section(l)
and not later than two years", the words, brackets and
figure "On the motion of both the parties 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" shall be substituted.
30. Amendment of section 29: In section 29 of the
Special Marriage Act,-
(i) in sub-section (1)
(a) for the words "unless at the date of the
presentation of the petition three years have passed", the
words "unless at the date of the presentation of the
petition one year has passed" shall be substituted;
(b) in the proviso,-
 -:250:-

(1) for the words "before three years have passed",

the words "before one year has passed" shall be
substituted;
(2) for the words "expiry of three years", the words
"expiry of one year" shall be substituted;
(3) for the words "expiration of the said three years
"expiration of the said one year" shall be substituted;
(ii) in sub-section (2),-
(a) for the words "expiration of three years", the
words "expiration of one year" shall be substituted;
(b) for the words "said three years", the words "said
one year" shall be substituted.
31. Amendment of section 30: In section 30 of the
Special Marriage Act, the words "and one year has elapsed
thereafter but not sooner," shall be omitted.
32. Amendment of section 31: For sub-section(1) of
section 31 of the Special Marriage Act, the following
sub-section shall be substituted, namely:-
"(1) Every petition under Chapter V or Chapter VI shall
be presented to the district court within the local limits
of whose original civil jurisdiction-
(i) the marriage was solemnized; or
(ii) the respondent, at the time of the presentation of
the petition resides; or
(iii) the parties to the marriage last resided together;
or
(iv) the petitioner is residing at the time of the
 -:251:-

presentation of the petition, in a case where the

respndent is, at that time, residing outside the
territories to which this Act extends, or has not been
hheard of as being alive for a period of seven years by
those who would naturally have heard of him if he were
alive.
33. Substitution of new section for section 33: For
section 33 of the Special Marriage Act, the following
section shall be substituted, namely:-
"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 prited 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."
34. Amendment of section 34: In section 34 of the
Special Marriage Act,-
(a) in sub-section (1), in clause (b), for the words
"where the ground of the petition is adultery, the
petitioner has not in any manner been accessory to or
connived at or condoned the adultery," the words, brackets
 -:252:-

letter and figures "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 bee

accessory to or connived at or condoned the act of sexual

intercourse referred to therein" shall be substituted;

(b) to sub-section (2), the following proviso shall be

added at the end, namely:-

"Provided that nothing contained in this sub-section

shall apply to any proceeding wherein relief is sought on

any of the grounds specified in clase (c), clause (e),

clause, (f), clause (g) and clause (h) of sub-section (1)

of section 27".,

(c) after sub-section (2) as so amended, the follwing

sub-sections shall be inserted, namely:-

"(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 proceedings 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 and has been, effected and the

court shall in disposing of the proceeding have due regard

to the report.

(4) In every case where a marriage ins dissolved by a

decree of divorce, the court passing the decree shall give
 -:253:-

a copy thereof free of cost to each of the parties.".

35. Substitution of new section for section 35: For
section 35 of the Special Marriage Act, the followinng
section shall be substituted, namely:-
"35. Relief for respondent in divorce and other
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 pertitioner's adultery, cruelty or desertion,
but also make a counter-claim for ay relief under this Act
on that ground, and if the petitioner's adultery, cruelty
or desertion is proved, the court may give to the
repondent any relief under this Act to which he or she
would have been entitled if he or she had presented a
petition seekig such relief on that ground."
36. Amendment"of section 37 of the Special Marriage
Act ,-
(a) in sub-section (1), for the words "and the conduct
of the parties" the words "the conduct of the parties and
other circumstances of the case" shall be substituted;
(b) in sub-section (3), for the words "it shall
rescind the order", the words "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" shall be
substitited.
37. Substitution of new section for section 39: For
section 39 of the Special Marriage Act, the following
 -:254:-

sections shall be substituted, namely:-

"39 Appeals from decrees and ordets: (1) All decrees
made by the court in any proceedings 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 the 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 exercxise 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 thirty days from the date of the decree
or order.
39A. Enforcement of decrees and orders: All decrees and
orders made by the court in any proceeding under Chapter V
or Chapter VI shall be enforce in the like manner as the
decrees and orders of the court made in the exercise of
 -:255:-

its original civil jurisdiction for the time being are

enforce.".
38. Insertion of new sections 40A, 40B, and 40C: After
section 40 of the Special Marriage Act, the follwing
sections shall be inserted, namely:-
"40A. Power to transfer petition 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 n a different State,
the petition shall be dealt with as specified in
sub-section(2)
(2) In 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
 -:256:-

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.

(3) In a case where clause (b) of sub-section (2)

applies, the court or the Government, as the case may be,

competent under the Code of Civil Procedure, 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 had been empowered so to do under the said Code.

40B. Special provision relatting to trial and disposul

of petitions under the Act: (1) The trial of a petition

under this Act shall, so far as is 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 petion under this Act shall be tried as

expeditiously as possibole 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

 -:257:-

service of notice of appeal on the respondent.

40C. Documentary evidence: Notwithstanding anything
contained in any enactment to the contrary, no document
shall be admissible in evidence in any proceeding at the
trial of a petition under this Act on the ground that it
is not duty stamped or registered.
39. Special provision as to pending cases: (1) All
Petitions and prceedings in causes and matters matrimonial
which are pending in any court at the commencement of the
Marriage Laws (Amendment) Act, 1976, shall be dealt with
and decided by such court-
(i) if it is a petition or proceeding under the Hindu
Marriage Act, then so far as may be, as if it had been
originally instituted therein under the Hindu Marriage
Act, as amended by this Act;
(ii) if it is a petition or proceeding under the
Special Marriage Act, then so far as may be, as if it had
been origially ins ituted therein under the Special
Mariage Act, as amended by this Act.
(2) In every petition or proceeding to which
sub-section (l)applies, the court in which the petition or
proceeding is pending shall give an opprtunity to the
parties to amend the pleadings, in so far as such
amendment is necessary to give effect to the provisions of
sub-section (1), within such time as it may allow in this
behalf and any such amendment may include an amendment for
conversion of a petitio or proceeding for judicial
separation into a petition or proceeding, as the case my
be, for divorce.
 UNIT-D

THE DIOLUTION OF MUSLIM MARRIAGES ACT, 1939

ACT NO. VIII OF 1939

Passed the Indian Legislature

Received the assent of the Governor-General on

the 17 March. 1939

(Published in the Gazette of India dated the 25th

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 married tie.

The Hanafi law is very favourable to women in many

matters but in a few cases it involves great hardship to

women. To overcome this difficulty, the Hinafi jurist have

evolved the rule that in case of necessity a Hanafi case

may be decided according to the law of another set Sunnis.

This important rule was not followed by the Anglo Indian

Courts with the result that sometimes the Hanafi wives

were put to great hardship. Thus a marriage cannot be

dissolved when the husband is guilty of cruelty, desertion

etc. The Ulema of pre-partition India felt the need for

the reform of the enforcible law. At their instance the

late Moulvi Muhammad Ahmad Kazmi, Advocate, M.L.A. and a

member of the Working Committee of the Jamit

al-Ulama-i-Hind introduced a Bill in 1938 in the

 -:259:-

Legislative Assembly. It was passed with a few changes in

1939. It proved of immense help to the Muslim women and
has been adopted by the Government of Pakistan. Certain
charges have to be made in it to make it more useful.

Whereas it is epedient to consolidate and clarify

the provisions of Muslim law relating to suits for
dissolution of marriage b the 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:-

The Hanafi law is generally very favourable to

women but in a few cases it involves great handing to
women. Thus there is no provision in it to dissolve a
marriage when the husband treats his wife with crelty,
deserts her or does not maintain her. The Qadi can only
admonish or imprison him but cannot dissolve the marriage.
This and other similar matters resulted in great hardship
to women. To overcome such difficulties the Hanafi jurists
evolved the rule that in case of necessity a Hanafi Qadi
could send a case to a Malik, Shafi'i or Hanbali Qazi to
be decided according to his own law which allows the
dissolution of marriage or grant other relief in such
cases. The British India Courts could not adopt this
measure as there were no separate Courts for different
Muslim sects nor did they themselves have recourse to this
 -:260:-

procedure. The result was that many Muslim women

eperienced great hardship. The Muslim Ulama realized this
difficulty and at the instance of the Jamiat-al-i-Hind,
the late Mohammad Ahmad Kazimi, a member of the Working
Committee of the Jamiat and a member of the Legislative
Assembly introduced a Bill in 1938 which after some
modification was passed in 1993. It has proved of immense
help to Muslim women and is in force in India and
Pakistan. The Pakistan Government has made a few changes
in it to make it more useful.

1. Short title and etent. This Act may be called the

Dissolution of Muslim Marriage Act, 1939.

2. It etends to all the provinces and the capital of

the federation. A woman married under Muslim Law shall be
entitled to obtain a decree for the dissolution of the
marriage on any one or more of the following grounds,
namely-of (1) that the whereabouts of the husband have not
been known for a period of four years.

Under the Hanafi law a missing person could be

presumed to be dead after a minimum period of sity years
from the time of his disappearance. The Indian Evidence
Act, of 1872 prescribed the period of seven years when a
person could be presumed to be dead. The Hanafi wives
could take advantage of this provision of law. But this
period of seven years was also found to be too long in
 -:261:-

view of the changed conditions of the times. Hence

advantage was taken of the Hanafi rule to adopt the law of
another Sunni sect in case of hardship.

This is the Maliki law and has been adopted in the

Act to provide adequate relief to wives whose husbands are
missing. This provision was suitable for ancient times
when means of communication were difficult and a long time
was necessary to trace a missing person. With the great
facilities in communication now available, the period of
four years is too long and may with advantage be reduced
to two years.

(ii) That the husband has neglected or has failed to

provide for her maintenance for a period of two years;
(ii-a) That the husband has taken an additional wife in
the contravention of the provisions of the Muslim Family
Laws Ordinace, 1961;
(iii) That the husband has been sentenced to
imprisonment for a period of seven years or upwards.

The period of seven years is too long. How can a

young wife be deprived of the society of her husband for
such a long wife be deprived of the society of her husband
for such a long time. For discussion of this aspect, see
Ila and Zihar. It seems desirable to reduce the period of
seven years to two years as in the case of Clause ii.
(iv) That the husband has failed to perform, without
 -:262:-

reasonable cause, his marital obligation for a period of

three years;

There seems to be no justification to fix the

period at three years and the period of two years may be
substituted for it. For discussion, see Chapter 23 "Other
Grounds".
(v) That the husband was impotent at the time of
marriage and continues to be so;
(vi) That the husband has been insane for a period of
two years or is suffering from leprosy or a virulent
venereal disease.

Provided that after such rnunciation, or

conversion the woman shall be entitled to obtain a decree
for the dissolution of her marriage on any of the ground
mentioned in section2:

Provided further that provisions of this section

shall not apply to a woman converted to Islam from some
other faith who re-embraces her former faith.

Opinions differed about the effect of apostasy of

the wife. The majority of Muslim jurists expressed that
the marriage shall be dissolved on the wife's apostasy but
some jurists held otherwise. This sub-clause has adopted
the latter view.

Rights to Dower not to be affected,-Nothing

 -:263:-

contained in this Act shall affect any right which a

married v/oman may have under Muslim law to her dower or

any part thereof on the dissolution of marriage.

Repeal of section 5 of Act XXVI of 1937.-Section 5

of the Muslim Personal Law (Shariat) Application Act, 1937

is hereby repealed.
 UNIT-E
THE MUSLIM FAMILY LAWS ORDINANCE, 1961

The Dissolution of Muslim Marriages Act, 1939, had

provided great relief to Muslim wives but there was a
great demand that some more safeguards were necessary and
that it was also necessary that the cases under the Act be
decided speedily. The Pakistan Government set up a Law
Commission to go into the matter. The Commission consisted
of seven members one of whom represented the Ulama. It
submitted its report on 1st June, 1956. Maulana Ehtishamul
Haq submitted a separate dissenting report. The majority
recommended that there should be compulsory registration
of marriages and divorce and a standard Nikahnama be
prescribed. It also stated that child-marriages should be
prevented by law and that pronouncement of three divorces
at a single sitting should be considered to amount to one
divorce only. It also recommended that the judges trying
matrimonial cases should try to bring about a
reconciliation between the parties. The Commission also
said that permission to take a second wife should not be
given unless the applicant was in a position to support
both wives and his children in the standard of living to
which the family was accustomed and that the husband shall
have to pay the Meher agreed upon however high it might
be. In the absence of specification the whole dower shall
be payable on demand. The Commission also recommended that
the wife could claim maintenance for the past three years.
The Commission also suggested the establishment of
 -:265:-
Matrimonial Courts which shall decide a case within three
months. Maulana Sahib and other Ulama did not agree with
most of the views of the Commission. Their objection may
be summarised as under:
"There is no priest-hood in Islam so that no
Nikah-khwans can be appointed by the Government.
Registration of marriages is useful but even then it
should not be made compulsory. It may result in
inconvenience while the presence of withnesses and
solemnization of marriage in public adequately serve the
purpose.
Fixation of age at 18 years for the bridegroom and
15 years for the bride is uncalled for. Shariat has not
fixed such ages and none need be fixed now. To discourage
child-marriages we must educate people.
The pronouncement of three divorces at one time:
The majority of Muslim jurists consider that the
pronouncement of three divorces at one time amounts to
three divorces. Tos remove the disadvantages following
such practices, Muslims should be taught the proper method
of divorce. Polygamy has been allowed by Islam and
practised by the Holy Prophet (Peace be on him) and his
Companions. It is not necessary to obtain the permission
of any authority for the second, third or fourth marriage
of a man. It is also unnecessary.

The enactment about the payment of dower fixed how

high it may be is unreasonable. The parties may have
recourse to arbtration."
The report was not given effect to until 1961 when
certain recommendations were given effect to. This is the
background of the Ordinance of 1961.
 UNIT-F
DIVORCE REFORM ACT, 1969

The Act came into force on 1st January, 1971. It

has introduced radical changes in the English law of

divorce. It has introduced divorce by mutual consent and

even unilateral divorce with certain safeguards for the

respondent. It is necessary for divorce by mutual consent

that the parties should have lived apart for a minimum

period of two years and the consent of a party should not

have been obtained by misleading him or her. As regards

unilateral divorce, it is necessary that (1) the parties

should have lived apart for a period of five years 2(e)

the dissolution of the marriage would not result in grave

hardship, financial or otherwise, to the respondent. The

Court will also take into consideration the interest of

the children and other persons concerned. The respondent

can also plead that it would in all circumstances be wrong

to dissolve the marriage 4(2) (b). The court will also

take into consideration the financial position of the

respondent, 6(1) (b). It will also consider certain other

matters specified in section 6(2).

Divorce Reform Act, 1969

An Act to amend the grounds for divorce and

judicial separation; to facilitate reconciliation in

matrimonial causes; and for purposes connected with the

matters of oresaid.

(22nd October 1969).

BE IT ENACTED by the Queen's Most Excellent

 -:267:-

Majesty, by and with the advice and consent of the Lords

Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as
follows:-
1.-After the commencement of this Act the sole
ground on which a petition for divrce may be presented to
the court by either party to a marriage shall be that the
marriage has broken down irretrievably.

Before the passing of the new Act, there were

several grounds on which a divorce could be obtained. This
Act prescribes only one ground on which a divorce can now
be granted. But the section is so exhaustive that it
includes every conceivable ground for separation; the only
condition being that it should have led to the
irretrievable breaking up of the marriage. The next
section describes the condition on the basis of which a
marriage may be considered to have broken down.

SCHEDULE 1
CONSEQUENTIAL AMENDMENTS OF THE
MATRIMONIAL CAUSES ACT 1965

1. In section 3(1) after the word "petitioner"

there shall be inserted the words "or respondent".
2. In section 4(1) and (2) for the words "on the
ground of adultery" there shall be substituted the words
"in which adultery is alleged" and in section 4(1) for the
words "on that ground" there shall be substituted the
 -:268:-

words "and alleging adultery".

3. In section 5(6) for the words from "opposes"
to "desertion" there shall be substituted the words
"alleges against the petitioner and proves any such fact
as is mentioned in section 2(1) of the Divorce Reform Act
1969".
4. In section 15(b) for the words "on the ground
of her husband's insanity" there shall be substituted the
words and alleging any such fact as is mentioned in
section 2(1)(e) of the Divorce Reform Act 1969 where the
court is satisfied on proof of such facts as may be
prescribed by rules of court that her husband is insane"
5. In section 16(3) for the words from the
beginning to "insanity" there shall be substituted the
words "where on a petition for divorce presented by a wife
the court granted her a decree and held that the only fact
mentioned in section 2(1) of the Divorce Reform Act 1969
on which she was entitled to rely was that mentioned in
paragraph (e), then if the court is satisfied on proof of
such facts as may be prescibed by rules of court that the
husband is insane".
6. In section 17(2) for the words from the
beginning to "She" there shall be substituted the words
"where on a petition for divorce presented by the husband
he satisfies the court of any such fact as is mentioned in
section 2(1)(a), (b) or (c) of the Divorce Reform Act 1969
and the court grants him a decree of divrce, then if it
 -:269:-

appears to the court that the wife" and for the words

"innocent party" there shall be substituted the word

"husband".

7. In section 20(1) (b) for the words "on the

ground of her husband's insanity" there shall be

substituted the words "and the court held that the only

fact mentioned in section 2(1) of the Divorce Reform Act

1969 on which she was entitled to rely was that mentioned

in paragraph (e) and the court is satisfied on proof of

such facts as may be prescribed by rules of court that the

husband is insane".

8. In section 26(6), as amended by the Family

Provision Act 1966, in the definition of "court", after

the word "court", where first occurring there shall be

inserted the words "means the High Court and ".

9. In Section 30(2)-

(a) in paragraph (a) for the words "on the ground

of her husband's insanity" there shall be

substituted the words "and the court is

satisfied on proof of such facts as may be

prescribed by rules of court that her husband

is insane".

(b) in paragraph (b) the word "divorce" and the

words "or judicial separation" shall be

omitted; and

(c) after paragraph (a) there shall be inserted

the following paragraph:-

 -:270:-

"(aa) a petition for divorce or judicial

separation is presented by a husband and the

court is satisfied on proof of such facts as may

be prescribed by rules of court that his wife is

insane; or".

10. In section 34(3) for the words "on the ground

of the husband's insanity" there shall be substituted the

words "in favour of a wife where the court held that the

only fact mentioned in section 2(1) of the Divorce Reform

Act 1969 on which she was entitled to rely was that

mentioned in paragraph (e) and the court is satisfied on

proof of such facts as may be prescribed by rules of court

that the husband is insane".

11. In section 46(2) after the definition of

"adopted" there shall be inserted the following

definition:-

"'the court' (except in sections 26,27, 28 and

28a) means the High Court or, where a country

court has jurisdiction by virtue of the

Matrimonial Causes Act 1967, a country court;and".

12. In Schedule 1, in paragraph 2 after the word

"Act" there shall be inserted the words "or of section

2(1)(c) of the Divorce Reform Act 1969".