Jurisdiction, Procedure and Appeals

Sub-section (2) is worth remembering because it is unusual. A verified pleading in an ordinary suit is not evidence; here it may be referred to as evidence at the hearing.

Section 21: the Code of Civil Procedure

Section 21 provides that, subject to the other provisions of the Act and to rules made by the High Court, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure 1908.

So the Code supplies everything the Act does not: pleadings, service, amendment, discovery, examination of witnesses, execution, review. The words "as far as may be" allow the court to adapt, and the Act's own provisions prevail where they conflict.

Section 21A: two petitions, two courts

This section, inserted in 1976, deals with the situation where both spouses sue.

Where a petition for judicial separation under section 10 or for divorce under section 13 has been presented by one party to a district court having jurisdiction, and another petition for judicial separation or divorce on any ground is presented thereafter by the other party, whether in the same or a different district court, and whether in the same State or a different State, then:

• if both are in the same district court, both petitions shall be tried and heard together by that court;
• if they are in different district courts, the later petition shall be transferred to the court in which the earlier petition was presented, and both shall be heard and disposed of together there.

Section 21A(3) provides that where the transfer limb applies, the court or Government competent under the Code of Civil Procedure to transfer a suit shall exercise that power as if empowered by the Code.

The rule is simply first in time. It exists because spouses who have separated commonly live in different States, and without it each could litigate the same marriage in a different court with a different result.

Section 21B: speed

Section 21B(1) requires the trial of a petition to be continued from day to day until its conclusion, so far as practicable consistently with the interests of justice, unless the court finds an adjournment beyond the following day necessary for reasons to be recorded.

Section 21B(2) requires every petition to be tried as expeditiously as possible, with an endeavour to conclude the trial within six months from the date of service of notice on the respondent.

Section 21B(3) requires every appeal to be heard as expeditiously as possible, with an endeavour to conclude the hearing within three months from the date of service of notice of appeal.

The figures, six months and three months, are the ones an examiner asks for. The obligations are expressed as an endeavour rather than as a bar, so a trial that takes longer is not a nullity.

Section 21C: documents

Section 21C provides that, notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

This is a small provision doing useful work. Matrimonial cases turn on letters, agreements, receipts and settlement deeds that nobody thought to stamp or register at the time. Section 21C stops the case being decided on a revenue technicality.

Section 22: proceedings in camera

Section 22(1), as substituted in 1976, provides that every proceeding under this Act shall be conducted in camera, and that it shall not be lawful for any person to print or publish any matter in relation to such a proceeding, except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

Section 22(2) makes contravention punishable with fine which may extend to one thousand rupees.

Note the structure. Before 1976 the court had a discretion to sit in camera; now it is mandatory in every case. The prohibition on publication is separate from the closed hearing and is wider: it binds any person, not merely the parties, and the exception is confined to superior court judgments published with permission.

Section 23: the court's own duty before granting relief

This is the most important procedural section in the Act, and its opening words are the reason: "In any proceeding under this Act, whether defended or not."

Section 23(1) provides that if the court is satisfied of the following, then and in such a case, but not otherwise, the court shall decree such relief accordingly:

(a) that any of the grounds for relief exists, and that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of the relief. There is an exception, inserted in 1976: this limb does not apply where the relief is sought on the ground in sub-clause (a), (b) or (c) of clause (ii) of section 5, that is, the mental capacity grounds.

(b) that where the ground is adultery under section 13(1)(i), the petitioner has not been accessory to, connived at, or condoned the acts complained of; and that where the ground is cruelty, the petitioner has not condoned the cruelty.

(bb) that where divorce is sought on the ground of mutual consent, that consent has not been obtained by force, fraud or undue influence.

(c) that the petition, not being a petition under section 11, is not presented or prosecuted in collusion with the respondent.

(d) that there has not been any unnecessary or improper delay in instituting the proceeding.

(e) that there is no other legal ground why relief should not be granted.

Why this section matters more than it looks

It binds the court even where nobody objects. In an undefended petition the respondent may not appear at all. Section 23 still requires the court to satisfy itself of every one of the five matters. A decree granted without that inquiry is bad.

Taking advantage of one's own wrong is the limb that is litigated. It is what the wife argued in Saroj Rani, discussed in the chapter on restitution: the husband had consented to a decree for restitution and then relied on its non-compliance to get a divorce under section 13(1A). The Supreme Court held he was not disentitled, because mere non-compliance with the decree is not by itself a "wrong" within section 23(1)(a). That holding is what makes section 13(1A) work as a real remedy for either party.

The three bars in clause (b) are the classical matrimonial defences: connivance, where the petitioner permitted or encouraged the act; accessory, where the petitioner participated; condonation, where the petitioner forgave and resumed cohabitation with knowledge. Note that for cruelty only condonation is named.

Clause (bb) is the safeguard on section 13B. Consent obtained by force, fraud or undue influence is no consent, and the court must satisfy itself of that before passing a decree by mutual consent.

The duty to attempt reconciliation

Section 23(2) provides that before proceeding to grant any relief it shall be the duty of the court, in the first instance, in every case where it is possible to do so consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.

The proviso excludes six grounds from that duty: clauses (ii), (iii), (iv), (v), (vi) and (vii) of section 13(1). That is conversion, mental disorder, the now-omitted clause (iv), venereal disease, renunciation and presumed death. The logic is the same as for section 13A: reconciliation is not a sensible thing to attempt with a spouse who has renounced the world or has not been heard of for seven years.

Section 23(3) supplies the machinery. For the purpose of aiding reconciliation the court may, if the parties so desire or if the court thinks it just and proper, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to a person named by the parties, or nominated by the court if they do not name one, with directions to report whether reconciliation can be and has been effected; and the court shall have due regard to the report.

Section 23(4) requires that in every case where a marriage is dissolved by a decree of divorce, the court shall give a copy of the decree free of cost to each of the parties.

Section 23A: the respondent's counter-claim

Section 23A provides that in any proceeding for divorce, judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of the petitioner's adultery, cruelty or desertion, but may also make a counter-claim for any relief under the Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give the respondent any relief to which he or she would have been entitled had a petition been presented on that ground.

The section saves a second suit. A wife met with a petition for restitution may, in the same proceeding, prove her husband's cruelty and obtain a decree of divorce, without filing anything of her own beyond the counter-claim. Only three grounds support a counter-claim under this section: adultery, cruelty and desertion.

Sections 28 and 28A: appeals and enforcement

Section 28(1). All decrees made in any proceeding under the Act are appealable as decrees made in the exercise of the court's original civil jurisdiction, and the appeal lies to the court to which appeals ordinarily lie from that court's original civil decisions.

Section 28(2). Orders made under section 25 or section 26, that is, permanent alimony and custody, are appealable if they are not interim orders.

Section 28(3). There is no appeal on the subject of costs only.

Section 28(4). Every appeal must be preferred within ninety days from the date of the decree or order. The period was substituted for thirty days by Act 50 of 2003 with effect from 23 December 2003.

Section 28A provides that all decrees and orders made under the Act shall be enforced in the like manner as decrees and orders made in the exercise of the court's original civil jurisdiction, which is how Order XXI of the Code applies to a restitution decree.

Two examinable points. Interim orders under sections 25 and 26 are not appealable, which is why interim maintenance is challenged by revision rather than appeal. And the appeal period is ninety days, not the thirty days that older textbooks print.

Section 29: savings

Section 29(1) provides that a marriage solemnized between Hindus before the commencement of the Act, otherwise valid, shall not be deemed invalid or ever to have been invalid by reason only that the parties belonged to the same gotra or pravara, or to different religions, castes or sub-divisions of the same caste.

Section 29(2) provides that nothing in the Act affects any right recognised by custom or conferred by a special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the Act.

Section 29(3) provides that nothing in the Act affects any proceeding under any law for the time being in force for declaring a marriage null and void, or for annulment, or for judicial separation, pending at the commencement of the Act.

Sub-section (2) is the one to remember. Customary divorce survives the Act. Where a community has a genuine custom of dissolution, satisfying section 3(a), a divorce by that custom is good without any decree.

A worked example

Sunita married in Nagpur, last lived with her husband in Pune, and now lives in Nashik. Her husband has filed for divorce in Pune; she wants to file for restitution. She fears the newspapers. He does not defend, and offers to let the decree go through.

Where may she file? Section 19 gives five places: where the marriage was solemnized, Nagpur; where the respondent resides, Pune; where the parties last resided together, Pune; where she is residing, Nashik, because she is the petitioner and a wife, under clause (iiia); and, if he were outside India or unheard of for seven years, where she resides.

Two petitions in two districts. Section 21A: where one petition is in one district court and the other in another, the later one is transferred to the court in which the earlier is pending, and they are tried together.

What must her petition contain? Section 20: the facts on which the claim is based and, except in a petition under section 11, a statement that there is no collusion.

Will the press be able to report it? No. Section 22: every proceeding shall be conducted in camera, and it is an offence to print or publish any matter in relation to it, except a judgment of a High Court or the Supreme Court printed with its previous permission.

He is not defending. Can the decree simply be passed? No. Section 23 obliges the court, whether defended or not, to satisfy itself that the ground exists; that the petitioner is not taking advantage of his or her own wrong; that there is no accessory, connivance or condonation; that a consent decree was not obtained by force, fraud or undue influence; that there is no collusion; that there has been no unnecessary or improper delay; and that there is no other legal ground.

Must it try to reconcile them? Section 23(2): yes, before granting relief, except where the ground is one of the six named, including conversion, renunciation and presumed death.

How fast, and where does an appeal go? Section 21B: the trial within six months and an appeal within three, as far as practicable. Sections 28 and 28A: appeal within ninety days, no appeal on costs alone, and enforcement as a decree of the court in its ordinary original civil jurisdiction.

What it does NOT mean

Section 19 does not give one forum. It gives five, and clause (iiia) lets a wife sue where she is residing.

Section 20 does not require a denial of collusion in every petition. It is required except in a petition under section 11.

Section 21 does not create a procedure. It imports the Code of Civil Procedure, subject to the Act and the rules.

Section 21A does not consolidate every pair of petitions. It applies where petitions are presented in different districts and transfers the later one to the court where the earlier is pending.

Section 21B is not a limitation period. It asks for a trial concluded within six months and an appeal within three, so far as practicable.

Section 22 does not merely allow a closed court. Every proceeding shall be conducted in camera, and printing or publishing matter in relation to it is an offence.

Section 23 is not a formality. The court must satisfy itself even where the petition is undefended.

Reconciliation is not attempted in every case. It is excluded where the ground is one of the six named, including conversion, renunciation and presumed death.

Quick revision

• s.19, where to sue: where the marriage was solemnized; where the respondent resides; where the parties last resided together; where the wife is residing, if she is the petitioner, clause (iiia); and where the petitioner resides, if the respondent is outside India or has not been heard of for seven years.
• s.20: the petition must state the facts and, except under s.11, contain a denial of collusion.
• s.21: the Code of Civil Procedure applies, subject to the Act and the rules. s.21A: the later of two petitions in different districts is transferred to the court where the earlier is pending. s.21B: trial in six months, appeal in three, so far as practicable, and day-to-day hearing. s.21C: a document is not inadmissible merely for want of stamp or registration.
• s.22: every proceeding in camera; printing or publishing matter in relation to it is an offence.
• s.23: the court must satisfy itself, defended or not, that the ground exists, that the petitioner is not taking advantage of his or her own wrong, that there is no accessory, connivance or condonation, that a consent decree is not by force, fraud or undue influence, that there is no collusion, that there is no unnecessary or improper delay, and that there is no other legal ground; and it must attempt reconciliation except on six grounds.
• s.23A: the respondent may counter-claim for relief on the petitioner's adultery, cruelty or desertion.
• ss.28 and 28A: appeals against decrees and orders, within ninety days, with no appeal on costs alone; and decrees and orders are enforced as decrees and orders of the court in its ordinary original civil jurisdiction. s.29: savings, including for customary divorce.

Test yourself

1. In which courts may a petition under the Act be presented? In the district court within whose ordinary original civil jurisdiction the marriage was solemnized; or the respondent at the time of presentation resides; or the parties last resided together; or, if the wife is the petitioner, where she is residing on that date; or, if the respondent is residing outside India or has not been heard of as alive for seven years, where the petitioner is residing.

2. What must the court satisfy itself of before granting relief? That any of the grounds for granting relief exists and that the petitioner is not in any way taking advantage of his or her own wrong or disability; that where the ground is adultery the petitioner has not been accessory to or connived at or condoned it, and where the ground is cruelty has not condoned it; that where the petition is for divorce by mutual consent the consent was not obtained by force, fraud or undue influence; that the petition is not presented in collusion; that there has been no unnecessary or improper delay; and that there is no other legal ground why relief should not be granted.

3. When must the court attempt reconciliation? In every case before proceeding to grant relief, except where the ground is conversion, renunciation of the world, not being heard of for seven years, or one of the other grounds named in the proviso to section 23(2).

4. Are the proceedings public? No. Section 22 requires every proceeding under the Act to be conducted in camera, and makes it an offence to print or publish any matter in relation to such a proceeding except a judgment of a High Court or the Supreme Court printed or published with the court's previous permission.