Dissolution of Christian Marriage under the Divorce Act 1869

Mamunur Rashid
LL B(Honours), LL M, LL M (Viadrina, Germany)
Objectives of the Act
• “to amend the law relating to the divorce of persons professing the
Christian religion, and
• to confer upon certain Courts jurisdiction in matters matrimonial”.
Limitation
• This Act does not apply to
• Beyond Bangladesh
• To non-chirstians
• Parties stayed outside of Bangladesh
• Parties married in Bangladesh and Pakistan before 1971
• Parties are muslims
Jurisdiction: u/s: 4
• Usually the High Court Division
• District subject to the conditions of this Act
• granting of marriage-licenses, as if this Act has not been passed.
Jurisdiction: u/s: 7
• Subject to the provisions contained in this Act, the High Court Division
and District Courts shall, in all suits and proceedings hereunder, act
and give relief on principles and rules which, in the opinion of the said
Courts, are as nearly as may be conformable to the principles and
rules on which the Court for Divorce and Matrimonial Causes in
England for the time being acts and gives relief.
• Provided that nothing in this section shall deprive the said Courts of
jurisdiction in a case where the parties to a marriage professed the
Christian religion at the time of the occurrence of the facts on which
the claim to relief is founded.
Jurisdiction: u/s:8
• The High Court Division 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 the Act.
Jurisdiction, u/s. 8
• The High Court Division may also withdraw any such suit or
proceeding, and transfer it for trial or disposal to the Court of any
other such District Judge.
10. When husband may petition for
dissolution
• Any husband may present a petition to the District Court or to the
High Court Division, praying that his marriage may be dissolved on the
ground that his wife has, since the solemnization thereof, been guilty
of adultery
Jurisdiction under section 9
• When 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 under this Act by a District
Court or at any subsequent stage of such suit, or in the execution of the decree
therein or order thereon,
• the Court may, either of its own motion or on the application of any of the
parties, draw up a statement of the case and refer it, with the Court's own opinion
thereon, to the decision of the High Court Division.
• If the question has arisen previous to or in the hearing, the District Court may
either stay such proceedings, or proceed in the case pending such reference and
pass a decree contingent upon the opinion of the High Court Division upon it.
• If a decree or order has been made, its execution shall be stayed until the receipt
of the order of the High Court Division upon such reference.
When wife may petition for dissolution
• Any wife may present a petition to the District court or to the High Court Division,
praying that her marriage may be dissolved on the ground that, since the
solemnization thereof, her husband has exchanged his profession of Christianity
for the profession of some other religion, and gone through a form of marriage
with another woman;
• or has been guilty of incestuous adultery,
• or of bigamy with adultery,
• or of marriage with another woman with adultery,
• or of rape, sodomy [anal sex] or bestiality [cruelty or depraved bahaviour],
• or of adultery coupled with such cruelty as without adultery would have entitled her to a
divorce mensa et toro [relating to a separation in which the parties remain husband and
wife but without cohabitation]
• or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Contents of petition
• Every such petition shall state, as distinctly as the nature of the case
permits, the facts on which the claim to have such marriage dissolved
is founded.
11. Adulterer to be co-respondent
• Upon any such petition presented by a husband, the petitioner shall
make the alleged adulterer a co-respondent to the said petition,
unless he is excused from so doing on one of the following grounds,
to be allowed by the Court:-
• (1) that the respondent is leading the life of a prostitute, and that the
petitioner knows of no person with whom the adultery has been committed;
• (2) that the name of the alleged adulterer is unknown to the petitioner
although he has made due efforts to discover it;
• (3) that the alleged adulterer is dead.
12. Court to be satisfied of absence of
collusion
• Upon any such petition for the dissolution of a marriage,
• the Court shall satisfy itself, so far as reasonable can, not only as to the facts
alleged, but also whether or not the petitioner has been on any manner
accessory to, or conniving at the going through of the said form of marriage,
or the adultery, or has condoned the same, and
• shall also inquire into any countercharge which may be made against the
petitioner.
13.Dismissal of petition
• In case the Court, on the evidence in relation to any such petition, is satisfied that
the petitioner's case has not been proved, or is not satisfied that the alleged
adultery has been committed,
• or finds that petitioner has, during the marriage, been accessory to, or conniving
at, the going through of the said form of marriage, or the adultery of the other
party to the marriage, or has condoned the adultery complained of,
• or that the petition is presented or prosecuted in collusion with either of the
respondents,
• then and in any of the said cases the Court shall dismiss the petition.
• When a petition is dismissed by a District Court under this section, the petitioner
may, nevertheless, present a similar petition to the High Court Division.
14. Power to Court to pronounce decree for
dissolving marriage
• In case the Court is satisfied on the evidence that the case of the
petitioner has been proved,
• and does not find that the petitioner has been in any manner accessory
to, or conniving at, the going through of the said form of marriage, or
the adultery of the other party to the marriage, 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 declaring such marriage to be
dissolved in the manner and subject to all the provisions and limitations
in sections 16 and 17 made and declared:
14. Condonation
• No adultery shall be deemed to have been condoned within the
meaning of this Act unless where conjugal co-habitation has been
resumed or continued.
14. Power to Court to pronounce decree for
dissolving marriage
• Provided that the Court shall not be bound to pronounce such decree if it
finds that the petitioner has, during the marriage, been guilty of adultery,
• or if the petitioner has, in the opinion of the Court, been guilty of
unreasonable delay in presenting or prosecuting such petition,
• or of cruelty towards the other party to the marriage,
• or of having deserted or willfully separated himself or herself from the
other party before the adultery complained of, and without reasonable
excuse,
• or of such willful neglect or misconduct of or towards the other party as
has conduced to the adultery.
15. Relief in case of opposition on certain
grounds
• In any suit instituted for dissolution of marriage, if the respondent
opposes the relief sought on the ground, in case of such a suit
instituted by a husband, of his adultery, cruelty or desertion without
reasonable excuse, or, in case of such a suit instituted by a wife, on
the ground of her adultery and cruelty,
• the Court may in such suit give to the respondent, on his or her application,
the same relief to which he or she would have been entitled in case he or she
had presented a petition seeking such relief, and the respondent shall be
competent to give evidence of or relating to such cruelty or desertion.
16.Decrees for dissolution to be nisi
• Every decree for a dissolution of marriage made by High Court
Division, not being a confirmation of a decree of a District Court, shall,
in the first instance, be a decree nisi, not to make absolute till after
the expiration of such time, not less than six months from the
pronouncing thereof, as the High Court Division by general or special
order from time to time directs.
Collusion
• During that period any person shall be at liberty, in such manner as the High
Court Division by general or special order from time to time directs, to show
cause why 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.
• On 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.
• The High Court Division may order the costs of counsel and witnesses, and
otherwise arising from such cause being shown, to be paid by the parties or
such one or more of them as it thinks fit, including a wife if she have separate
property.
• 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 Division may dismiss the suit.
17. Confirmation of decree for dissolution by
District Judge
• Every decree for a dissolution of marriage made by a District Judge shall be
subject to confirmation by the High Court Division.
• Cases for confirmation of a decree for dissolution of marriage shall be heard
(where the number of the Judges of the High Court Division is three or
upwards) by a Court composed of three such Judges, and in case of
difference the opinion of the majority shall prevail, or (where the number of
the Judges of the High Court Division is two) by a Court composed of such
two Judges, and in case of difference the opinion of the senior Judge, shall
prevail.
• The High Court Division, if it thinks further enquiry or additional evidence to
be necessary, may direct such enquiry to be made or such evidence to be
taken.
17. Confirmation of decree for dissolution by
District Judge
• The result of such enquiry and the additional evidence shall be certified to the High Court Division by
the District Judge, and the High Court Division shall thereupon make an order confirming the decree
for dissolution of marriage, or such other order as to the Court seems fit:
• Provided that no decree shall be confirmed under this section till after the expiration of such time,
not less than six months from the pronouncing thereof, as the High Court Division by general or
special order from time to time directs.
• During the progress of the suit in the Court of the District Judge, any person, suspecting that any
parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be
at liberty, in such manner as the High Court Division by general or special order from time to time
directs, to apply to the High Court Division to remove the suit under section 8, and the High Court
Division shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court
of original jurisdiction, and the provisions contained in section 16 shall apply to every suit so
removed;
• or it may direct the District Judge to take such steps in respect of the alleged collusion as may be
necessary to enable him to make a decree in accordance with the justice of the case.