enerscript/MARRIAGEACT · Datasets at Fast360

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2. Subs. by s. 32, ibid., for sub-section (1) (w.e.f. 27-5-1976).
3. Ins. by Act 50 of 2003, s. 2 (w.e.f. 23-12-2003).
4. Subs. by Act 68 of 1976, s. 33, for section 33 (w.e.f. 27-5-1976).
5. Subs. by s. 34, ibid. for “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” (w.e.f. 27-5-1976).
14
(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:
1
[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 subsection (1) of section 27.]
2
[(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.]
3
[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.
4
[Provided that the application for the payment of the expenses of the proceeding and such weekly or
monthly sum during the proceeding under Chapter V or Chapter VI, shall, as far as possible, be disposed
of within sixty days from the date of service of notice on the husband.]
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 5
[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.

1. Added by Act 68 of 1976, s. 34 (w.e.f. 27-5-1976).
2. Ins. by s. 34, ibid. (w.e.f. 27-5-1976).
3. Subs. by s. 35, ibid., for section 35 (w.e.f. 27-5-1976).
4. Ins. by Act 49 of 2001, s. 6 (w.e.f. 24-9-2001).
5. Subs. by Act 68 of 1976, s. 36, for “and the conduct of the parties” (w.e.f. 27-5-1976).
15
(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, 1
[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.
2
[Provided that the application with respect to the maintenance and education of the minor children,
during the proceeding, under Chapter V or Chapter VI, shall, as far as possible, be disposed of within
sixty days from the date of service of notice on the respondent.]
3
[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 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 4
[period of ninety 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.]
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 (5 of 1908).
5
[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

2. Subs. by s. 32, ibid., for sub-section (1) (w.e.f. 27-5-1976).

3. Ins. by Act 50 of 2003, s. 2 (w.e.f. 23-12-2003).

4. Subs. by Act 68 of 1976, s. 33, for section 33 (w.e.f. 27-5-1976).

5. Subs. by s. 34, ibid. for “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” (w.e.f. 27-5-1976).

14

(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:

1

[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 subsection (1) of section 27.]

2

[(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.]

3

[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.

4

[Provided that the application for the payment of the expenses of the proceeding and such weekly or

monthly sum during the proceeding under Chapter V or Chapter VI, shall, as far as possible, be disposed

of within sixty days from the date of service of notice on the husband.]

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 5

[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.

1. Added by Act 68 of 1976, s. 34 (w.e.f. 27-5-1976).

2. Ins. by s. 34, ibid. (w.e.f. 27-5-1976).

3. Subs. by s. 35, ibid., for section 35 (w.e.f. 27-5-1976).

4. Ins. by Act 49 of 2001, s. 6 (w.e.f. 24-9-2001).

5. Subs. by Act 68 of 1976, s. 36, for “and the conduct of the parties” (w.e.f. 27-5-1976).

15

(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, 1

[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.

2

[Provided that the application with respect to the maintenance and education of the minor children,

during the proceeding, under Chapter V or Chapter VI, shall, as far as possible, be disposed of within

sixty days from the date of service of notice on the respondent.]

3

[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 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 4

[period of ninety 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.]

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 (5 of 1908).

5

[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