29[27A. 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 ground mentioned in clause (h) of sub-section (1) of section 27, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation]
28. Divorce by mutual consent – (1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be present to the district court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
(2) 30[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petition referred to in sub-section (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
COMMENTS
Even if dissolution of marriage by mutual consent is sought by a joint petition of the husband and the wife still it is incumbent on the court to comply with the mandatory provisions of section 34 (3) of the Act to make attempt for reconciliation between the parties.
[Pramila Bhagat v. Ajit Raj Singh, AIR 1989 Pat 163]
29. Restriction on petitions for divorce during first three years after marriage. – (1) No petition for divorce shall be presented to the district court 31[unless at the date of the presentation of the petition one year has passed] since the date of entering the certificate of marriage in the Marriage Certificate Book:
Provided that the district court may, upon application being made to it, allow a petition to be presented 31[before one year has passed] on the ground that the case is one of exceptional hardship suffered by the petitioner of exceptional depravity on the part of the respondent, but if it appears to the district court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the district court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 31[expiry of one year] from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the 32[expiration of the said one year] upon the same, or substantially the same, facts as those proved in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the 31[expiration of one year] from the date of the marriage, the district court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the 32 [said one year].
30. Remarriage of divorced persons. – Where a marriage has been dissolved by the decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, 33*** either party to the marriage may marry again.
CHAPTER VII
JURISDICTION AND PROCEDURE
31. Court to which petition should be made. – 34[(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 presentation of the petition, in a case where the respondent is at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.]
(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.
32. Contents and verification of petitions. – (1) Every petition under Chapter V or Chapter VI shall state, as distinctly as the nature of the case permits, the facts on which the claim to relief is founded, and shall also state that there is no collusion between the petitioner and other party to the marriage.
(2) The statements contained in every such petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.
35[33. Proceedings to be in camera and may not be printed or published. – (1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1) shall be punishable with fine which may extend to one thousand rupees.]
34. Duty of court in passing decrees. – (1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the court is satisfied that, –
(a) any of the grounds for granting relief exists; and
(b) 36[Where the petition is founded on the ground specified in clause (a) of sub-section (1) of section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein,] or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and
(c) when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and
(d) the petition is not presented or prosecuted in collusion with 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 endeavor to bring about a reconciliation between parties;
37[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (c), clause (e), clause (f), clause (g) and clause (h) of sub-section (1) of section 27.]
37[(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 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.]
COMMENTS
Under Section 34(4) of the Act the Court is bound to give a certified copy of the decree to each party free of cost is immaterial for the purpose of appeal.
[Jyoti Malhotra v. K.K. Malhotra, AIR 1983 Del. 148]
Introduction]
[Sections 1
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to 23] [Sections 24
to 27] [Sections 35
to 41] [Schedule-
I To II] [Schedule-III]
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