....Continued
38[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 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 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 39[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 re-married or is not leading a chaste life, 39[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 of 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.
40[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 section 37 or section 38 shall, subject
to the provisions of sub-section (3), be appealable
if they are not interim orders, and every such appeal
shall lie to the court to which appeals ordinarily lie
from the decisions of the court given in the exercise
of its original civil jurisdiction.
(3)There shall be no appeal under this section on the
subject of costs only.
(4) Every appeal under this section shall be preferred
within a period of 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 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.]
COMMENTS
A suit for execution can be converted into an execution
application as a measure of ex debito justitiae.
[Nandrani Majumdar v. Indian Airlines, AIR 1983 SC 1201]
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.
41[40A. Power to transfer petitions in certain cases
– (1) Where –
(a) a petition under this Act has been presented to
the district court having jurisdiction by a party to
the marriage praying for a decree for judicial separation
under section 23 or for a decree of divorce under section
27, and
(b) another petition under this Act has been presented
thereafter by the other party to the marriage praying
for decree for judicial separation under section 23,
or for decree of divorce under section 27 on any ground
whether in the same district court or in a different
district court, in the same State or in a different
State, the petition shall be dealt with as specified
in sub-section (2).
(2) In a case where sub-section (1) applies, –
(a) If the petitions are presented to the same district
court, both the petitions shall be tried and heard together
by that district court;
(b) if the petitions are presented to different district
courts, the petition presented later shall be transferred
to the district court in which the earlier petition
was presented and both the petitions shall be heard
and disposed of together by the district court in which
the earlier petition was presented.
(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 (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.
40B. 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
conclusions, 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 notice of appeal 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.
40C. Documentary evidence. – Notwithstanding anything
contained in any enactment to the contrary, no documents
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).
[Introduction]
[Sections 1
to 8] [Sections 9
to 23] [Sections 24
to 27] [Sections 27A
to 34] [Schedule-
I To II] [Schedule-III]
OTHER
TOPICS IN THIS SECTION
Quantum
Designs