34. Duty of Court in passing decrees.-
(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the Court if satisfied that,-
(a) any of the grounds for granting relief exists; and
(b) where the petition is founded on the ground specified in Cl.(a) of sub-section (1) of Sec. 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and
(c) when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and
(d) the petition is not presented or prosecuted in collusion with the respondent; and
(e) there has not been any unnecessary or improper delay in instituting the proceedings; and
(f) there is no other legal ground why the relief should not be granted; then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties :
Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Cls.(c), (e), (f), (g) and (h) of sub-section (1) of Sec.27.
(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 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 dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties.
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 petitioner’s adultery, cruelty or desertion, but also make 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 ground.
36. Alimony pendente lite.-
Where in any proceeding under Chapter V or Chapter VI it appears to the District Court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as having regard to the husband’s income, it may seem to the Court to be reasonable.
37. Permanent alimony and maintenance.-
(1) Any Court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband’s property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as having regard to her own property, if any, her husband’s property and ability, the conduct of the parties and other circumstances of the case it may seem to the Court to be just.
(2) If the District Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the Court to be just.
(3) If the District Court is satisfied that the wife in whose favour an order has been made under this section has remarried or is not leading a chaste life, it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the Court may deem just.
38. Custody of children.-
In any proceeding under Chapter V or Chapter VI the District Court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.
39. Appeals from decrees and orders.-
(1) All decrees made by the Court in any proceeding under Chapter V or Chapter VI shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and such appeal shall lie to the Court to which appeals ordinarily lie from 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 Sec.37 or Sec.38 shall subject to the provisions of Sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of the 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.
39-A. Enforcement of decrees and orders.-
All decrees and orders made by the Court in any proceeding under Chapter V or Chapter VI shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced.
40. Application of Act 5 of 1908.– Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.
40-A. Power to transfer petitions in certain cases.-
(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 Sec.23 or for a decree of divorce under Sec.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 Sec.23, or for decree of divorce under Sec.27 on any ground whether in the same District Court or in a different District Court, in the same State or in a different State.
the petition shall be dealt with as specified in sub-section (2).
(2) In a case where sub-section (1) applies.–
(a) if the petitions are presented to the same District Court, both the petitions shall be tried and heard together by that District Court :
(b) if the petitions are presented to different District Courts the petition presented later shall be transferred to the District Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the District Court in which the earlier petition was presented.
(3) In a case where Cl. (b) of sub-section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the District Court in which the later petition has been presented to the District Court in which the earlier petition is pending shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
40-B. Special provision relating to trial and disposal of petitions under the Act.-
(1) The trial of a petition under this Act shall so far as 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 petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.
40-C. Documentary evidence.-
Notwithstanding anything contained in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.
41. Power of High Court to make rules regulating procedure.-
(1) The High Court shall, by notification in the Official Gazette, make such rules consistent with the provisions contained in this Act and the Code of Civil Procedure, 1908 (5 of 1908), as it may consider expedient for the purpose of carrying into effect the provisions of Chapters V, VI and VII.
(2) In particular, and without prejudice to the generality of the foregoing provision, such rules shall provide for.–
(a) the impleading by the petitioner of the adulterer as a co-respondent on a petition for divorce on the ground of adultery, and the circumstances in which the petitioner may be excused from doing so:
(b) the awarding of damages against any such co-respondent,
(c) the intervention in any proceeding under Chapter V or Chapter VI by any person not already a party thereto :
(d) the form and contents of petitions for nullity of marriage or for divorce and the payment of costs incurred by parties to such petitions ; and
(e) any other matter for which no provision or no sufficient provision is made in this Act, and for which provision is made in the Indian Divorce Act, 1869 (4 of 1869).
Nothing contained in this Act shall affect the validity of any marriage not solemnized under its provisions; not shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage.
43. Penalty on married person marrying again under this Act.-
Save as otherwise provided in Chapter III, every person who, being at the time married procures a marriage of himself or herself to be solemnized under this Act shall be deemed to have committed an offence under Sec. 494 or Sec. 495 of the Indian Penal Code 1860 (45 of 1860), as the case may be, and the marriage so solemnized shall be void.
44. Punishment of bigamy.-
Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in Secs.494 and 495 of the Indian Penal Code, 1860 (45 of 1860) for the offence of marrying again during the lifetime of a husband of wife, and the marriage so contracted shall be void.
45. Penalty for signing false declaration or certificate.-
Every person making, signing or attesting any declaration or certificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in Sec.199 of the Indian Penal Code, 1860 (45 of 1860).
46. Penalty for wrongful action of Marriage Officer.-
Any Marriage Officer who knowingly and willfully solemnizes a marriage under this Act,–
(1) without publishing a notice regarding such marriage as required by Sec.5 ; or
(2) within thirty days of the publication of the notice such marriage; or
(3) in contravention of any other provision contained in this Act, shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.
47. Marriage Certificate Book to be open to inspection-
(1) The Marriage Certificate Book kept under this Act shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements therein contained.
(2) Certified extracts from the Marriage Certificate Book shall, on application, be given by the Marriage Officer to the applicant on payment by him of the prescribed fee.
48. Transmission of copies of entries in marriage records.-
Every Marriage Officer in a State shall send to Registrar-General of Births, Deaths and Marriages of that State at such intervals and in such form as may be prescribed, a true copy of all entries made by him in the Marriage Certificate Book since the last of such intervals, and in the case of Marriage Officers outside the territories to which this Act extends, the true copy shall be sent to such authority as the Central Government may specify in this behalf.
49. Correction of errors.-
(1) Any Marriage Officer who discovers any error in the form or substance of any entry in the Marriage Certificate Book may, within one month next after the discovery of such error, in the presence of the persons married, or in case of their death or absence, in the presence of two other credible witnesses, correct the error by entry in the margin without any alteration of the original entry and shall sign the marginal entry and add thereto the date of such correction and the Marriage Officer shall make the like marginal entry in the certificate thereof.
(2) Every correction made under this section shall be attested by the witnesses in whose presence it was made.
(3) Where a copy of any entry has already been sent under Sec. 48 to the Registrar-General or other authority the Marriage Officer shall make and send in the like manner a separate certificate of the original erroneous entry and of the marginal corrections therein made.
50. Power to make rules.-
(1) The Central Government, in the case of officers of the Central Government, and the State Government, in all other cases, may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the duties and powers of Marriage Officers and the areas in which they may exercise jurisdiction;
(b) the manner in which a Marriage Officer may hold inquiries under this Act and the procedure therefore:
(c) the form and manner in which any books required by or under this Act shall be maintained:
(d) the fees that may be levied for the performance of any duty imposed upon a Marriage Officer under this Act;
(e) the manner in which public notice shall be given under Sec. 16:
(f) the form in which, and the intervals within which, copies of entries in the Marriage Certificate Book shall be sent in pursuance of Sec.48:
(g) any other matter which may be or requires to be prescribed.
(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form, or be of no effect as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
(4) Every rule made by the State Government under this Act shall be laid, as soon as it is made, before the State Legislature.
51. Repeals and savings.-
(1) The Special Marriage Act, 1872 (3 of 1872), and any law corresponding to the Special Marriage Act, 1872, in force in any Part B State immediately before the commencement of this Act are hereby repealed.
(2) Notwithstanding such repeal.-
(a) all marriages duly solemnized under Special Marriage Act, 1872 (3 of 1872) or any such corresponding law shall be deemed to have been solemnized under this Act:
(b) all suits and proceeding in causes and matters matrimonial which, when this Act comes into operation, are pending in any Court shall be dealt with and decided by such Court, so far as may be, as if they had been originally instituted therein under this Act.
(3) The provisions of sub-section (2) shall be without prejudice to the provisions contained in Sec. 6 of the General Clauses Act, 1897 (10 of 1897) which shall also apply to the repeal of the corresponding law as if such corresponding law had been an enactment.
THE FIRST SCHEDULE
(See Sec.2 (b))
Degree of Prohibited Relationship
2. Father’s widow (step-mother)
3. Mother’s mother
4. Mother’s father’s widow (step grand-mother)
5. Mother’s mother’s mother
6. Mother’s mother’s father’s widow (step-great-grandmother)
7. Mother’s father’s mother
8. Mother’s father’s father’s widow (step-great-grandmother)
9. Father’s mother
10. Father’s father’s widow (step-grandmother)
11. Father’s mother’s mother
12. Father’s mother’s father’s widow (step-great-grandmother)
13. Father’s father’s mother
14. Father’s father’s father’s widow (step-great-grandmother)
16. Son’s widow
17. Daughter’s daughter
18. Daughter’s son’s widow
19. Son’s daughter
20. Son’s son’s widow
21. Daughter’s daughter’s daughter
22. Daughter’s daughter’s son’s widow
23. Daughter’s son’s daughter
24. Daughter’s son’s son’s widow
25. Son’s daughter’s daughter
26. Son’s daughter’s son’s widow
27. Son’s son’s daughter
28. Son’s son’s son’s widow
30. Sister’s daughter
31. Brother’s daughter
32. Mother’s sister
33. Father’s sister
34. Father’s brother’s daughter
35. Father’s sister’s daughter
36. Mother’s sister’s-daughter
37. Mother’s brother’s daughter
Explanation.- For the purposes of this Part, the expression “widow” includes a divorced wife.
2. Mother’s husband (step-father)
3. Father’s father
4. Father’s mother’s husband (step-grandmother)
5. Father’s father’s father
6. Father’s father’s mother’s husband (step-great-grandfather)
7. Father’s mother’s father
8. Father’s mother’s mother’s husband (step-great-grandfather)
9. Mother’s father
10. Mother’s mother’s husband (step-grandfather)
11. Mother’s father’s father
12. Mother’s father’s mother’s husband (step-great-grandfather)
13. Mother’s mother’s father
14. Mother’s mother’s mother’s husband(step-great-grandfather)
16. Daughter’s husband
17. Son’s son
18. Son’s daughter’s husband
19. Daughter’s son
20. Daughter’s daughter’s husband
21. Son’s son’s son
22. Son’s son’s daughter’s husband
23. Son’s daughter’s son
24. Son’s daughter’s daughter’s husband
25. Daughter’s son’s son
26. Daughter’s son’s daughter’s husband
27. Daughter’s daughter’s son
28. Daughter’s daughter’s daughter’s husband
30. Brother’s son
31. Sister’s son
32. Mother’s brother
33. Father’s brother
34. Father’s brother’s son
35. Father’s sister’s son
36. Mother’s sister’s son
37. Mother’s brother’s son
Explanation- for the purposes of this Part, the expression “husband’ includes a divorced husband.