Category Archives: Family

The Special Marriage Act, 1954

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Special Marriage Act, 1954

  1. Short title, extent and commencement
  2. Definitions
  3. Marriage officers
  4. Conditions relating to solemnization of special marriages
  5. Notice of intended marriage
  6. Marriage Notice Book and publication
  7. Objection to marriage
  8. Procedure on receipt of objection
  9. Powers of Marriage officers in respect of inquiries
  10. Procedure on receipt of objection by Marriage officer abroad
  11. Declaration by parties and witnesses
  12. Place and form of solemnization
  13. Certificate of marriage
  14. New notice when marriage not solemnized within three months
  15. Registration of marriages celebrated in other forms
  16. Procedure for registration
  17. Appeals from orders under section 16
  18. Effect of registration of marriage under this Chapter
  19. Effect of marriage on member of undivided family
  20. Rights and disabilities not affected by Act
  21. Succession to property of parties married under Act
    21-A. Special provision in certain cases
  22. Restitution of conjugal rights
  23. Judicial separation
  24. Void marriages
  25. Voidable marriages
  26. Legitimacy of children of void and voidable marriages
  27. Divorce
    27-A. Alternate relief in divorce proceedings
  28. Divorce by mutual consent
  29. Restriction on petitions for divorce during first one year after marriage
  30. Remarriage of divorced persons
  31. Court to which petition should be made
  32. Contents and verification of petitions
  33. Proceedings to be in camera and may not be printed or published
  34. Duty of Court in passing decrees
  35. Relief for respondent in divorce and other proceedings
  36. Alimony pendente lite
  37. Permanent alimony and maintenance
  38. Custody of children
  39. Appeals from decrees and orders
    39-A. Enforcement of decrees and orders
  40. Application of Act V of 1908
    40-A. Power to transfer petitions in certain cases
    40-B. Special provision relating to trial and disposal of petitions under the Act
    40-C. Documentary evidence
  41. Power of High Court to make rules regulating procedure
  42. Saving
  43. Penalty on married person marrying again under this Act
  44. Punishment of bigamy
  45. Penalty for signing false declaration or certificate
  46. Penalty for wrongful action of Marriage officer
  47. Marriage Certificate Book to be open to inspection
  48. Transmission of copies of entries in marriage records
  49. Correction of errors
  50. Power to make rules
  51. Repeals and savings

The Special Marriage Act, 1954

(43 of 1954)

[9th October, 1954]…An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.Be it enacted by Parliament in the Fifth Year of the Republic of India as follows:

CHAPTER I

Preliminary

1. Short title, extent and commencement .(1) This Act may be called The [Special Marriage Act , 1954].

(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to citizens of India domiciled in the territories to which this Act extends who are [in the State of Jammu and Kashmir.]

(3) It shall come into force on such date , as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions .In this Act, unless the context otherwise requires,[* * *]

(b) degrees of prohibited relationshipa man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship;

Explanation I. Relationship includes,

(a) relationship by half or uterine blood as well as by full blood;

(b) illegitimate blood relationship as well as legitimate;

(c) relationship by adoption as well as by blood;

and all terms of relationship in this Act shall be construed accordingly.

Explanation II. Full blood and half bloodtwo persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Explanation III.Uterine bloodtwo persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.

Explanation IV In Explanations II and III, ancestor includes the father and ancestress the mother.

[* * *]

(d) district, in relation to a Marriage Officer, means the area for which he is appointed as such under sub-section (1) or sub-section (2) of section 3;

[(e) district Court means, in any area for which there is a City Civil Court, that Court, and in any other area, the principal Civil Court of original jurisdiction and includes any other Civil Court which may be specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in this Act.]

(f) prescribed means prescribed by rules made under this Act;

[(g) State Government, in relation to a Union territory, means the administrator thereof.]

3. Marriage Officers .(1) For the purposes of this Act, the State Government may, by notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State.

[(2) For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends, who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers of the State or any part thereof.]

CHAPTER II

Solemnization Of Special Marriages

4. Conditions relating to solemnization of special marriages .Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:

(a) neither party has a spouse living;

[(b) neither party

(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the protection of children; or

(iii) has been subject to recurrent attacks of insanity [* * *]; ]

(c) the male has completed the age of twenty-one years and the female the age of eighteen years;

[(d) the parties are not within the degrees of prohibited relationship:

Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and

[(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.]

[Explanation. In this section, custom, in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family:Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied

(i) that such rule has been continuously and uniformly observed for a long time among those members;

(ii) that such rule is certain and not unreasonable or opposed to public policy; and

(iii) that such rule, if applicable only to a family, has not been discontinued by the family.]

5. Notice of intended marriage .When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the Form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

6. Marriage Notice Book and publication .(1) The Marriage Officer shall keep all notices given under section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same.

(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

7. Objection to marriage .(1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub-section (2) of section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4.(2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of section 6, the marriage may be solemnized, unless it has been previously objected to under sub-section (1).(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be read over and explained, if necessary, to the person making the objection and shall be signed by him or on his behalf.

8. Procedure on receipt of objection .(1) If an objection is made under section 7 to an intended marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection and is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdrawn by the person making it; but the Marriage Officer shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decision.

(2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the district Court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district Court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the Court.

9. Powers of Marriage Officers in respect of inquiries .(1) For the purpose of any inquiry under section 8, the Marriage Officer shall have all the powers vested in Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and inspection;

(c) compelling the production of documents;

(d) reception of evidence on affidavits; and

(e) issuing commissions for the examination of witnesses;

and any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code (45 of 1860).

Explanation. For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his district.

(2) If it appears to the Marriage Officer that the objection made to an intended marriage is not reasonable and has not been made in good faith he may impose on the person objecting costs by way of compensation not exceeding one thousand rupees and award the whole or any part thereof to the parties to the intended marriage, and any order for costs so made may be executed in the same manner as a decree passed by the district Court within the local limits of whose jurisdiction the Marriage Officer has his office.

10. Procedure on receipt of objection by Marriage Officer abroad .Where an objection is made under section 7 to a Marriage Officer [in the State of Jammu and Kashmir in respect of an intended marriage in the State] and the Marriage Officer, after making such inquiry into the matter as he thinks fit, entertains a doubt in respect thereof, he shall not solemnize the marriage but shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government, and the Central Government, after making such inquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer who shall act in conformity with the decision of the Central Government.

11. Declaration by parties and witnesses .Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the Form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.

12. Place and form of solemnization .(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed.(2) The marriage may be solemnized in any form which the parties may choose to adopt:Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,I. (A), take thee (B), to be my lawful wife (or husband).

13. Certificate of marriage .(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the Form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

14. New notice when marriage not solemnized within three months .Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by section 5, or where an appeal has been filed under sub-section (2) of section 8, within three months from the date of the decision of the district Court on such appeal or, where the record of a case has been transmitted to the Central Government under section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.

CHAPTER III

Registration Of Marriages Celebrated In Other Forms

15. Registration of marriages celebrated in other forms .Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the [Special Marriage Act, 1872 (3 of 1872)], or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:

(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;

(b) neither party has at the time of registration more than one spouse living;

(c) neither party is an idiot or a lunatic at the time of registration;

(d) the parties have completed the age of twenty-one years at the time of registration;

(e) the parties are not within the degrees of prohibited relationship:

Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and

(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.

16. Procedure for registration .Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within the period, shall, if satisfied that all the conditions mentioned in section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the Form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.

17. Appeals from orders under section 16 .Any person aggrieved by any order of a Marriage Officer refusing to register a marriage under this Chapter may, within thirty days from the date of the order, appeal against that order to the district Court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district Court, on such appeal, shall be final, and the Marriage Officer to whom the application was made shall act in conformity with such decision.

18. Effect of registration of marriage under this Chapter .Subject to the provisions contained in sub-section (2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents:Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.

CHAPTER IV

Consequences Of Marriage Under This Act

19. Effect of marriage on member of undivided family .The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.

20. Rights and disabilities not affected by Act .Subject to the provisions of section 19, any person whose marriage is solemnized under this Act, shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850, applies.

21. Succession to property of parties married under Act .Notwith-standing any restrictions contained in the Indian Succession Act, 1925 (39 of 1925), with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted therefrom.

[21-A. Special provision in certain cases .Where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply.]

CHAPTER V

Restitution Of Conjugal Rights And Judicial Separation

22. Restitution of conjugal rights .When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district Court for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.[Explanation .Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

23. Judicial separation .(1) A petition for judicial separation may be presented to the district Court either by the husband or the wife,

(a) on any of the grounds specified [in sub-section (1) [and sub-section (1-A)] of section 27] on which a petition for divorce might have been presented; or

(b) on the ground of failure to comply with a decree for restitution of conjugal rights;

and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.(2) Where the Court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

CHAPTER VI

Nullity Of Marriage And Divorce

24. Void marriages (1) Any marriage solemnized under this Act shall be null and void [and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if

(i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or

(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of section 15:

Provided that no such declaration shall be made in any case where an appeal has been preferred under section 17 and the decision of the District Court has become final.Modifications .In its application to marriages referred to in section 18(1) of the Foreign Marriage Act, 1969 (33 of 1969), section 24 shall be subject to the following modifications, namely:

(i) the references in sub-section (1) to clauses (a), (b), (c) and (d) of section 4, shall be construed as references to clauses (a) to (d) of section 4 of the Foreign Marriage Act, 1969; and

(ii) nothing contained in this section shall apply to any marriage

(a) which is not solemnized under that Act, i.e., 33 of 1969; or

(b) which is deemed to be solemnized under the said Act by reason of the provisions of section 17 of that Act:

Provided that the registration of any such marriage referred to in clause (b) above may be declared to be of no effect if the registration was in contravention of sub-section (2) of section 17 of that Act, i.e., 33 of 1969See section 18(2) of the Foreign Marriage Act, 1969 (33 of 1969).

25. Voidable marriages Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if

(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or

(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or

(iii) the consent of either party in the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1972):

Provided that, in the case specified in clause (ii), the Court shall not grant a decree unless it is satisfied

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:

Provided further that in the case specified in clause (iii), the Court shall not grant a decree if

(a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.

26. Legitimacy of children of void and voidable marriages (1) Notwithstanding that a marriage is null and void under section 24, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.]

27. Divorce (1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district Court either by the husband or the wife on the ground that the respondent

[(a) has, after the solemnization of marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860).

[* * *]

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

[(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation. In this clause,

(a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or

(f) has been suffering from venereal disease in a communicable form, or;]

(g) has [* * *] been suffering from leprosy, the disease not having been contracted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; [*]

[Explanation. In this sub-section, the expression desertion means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;]

[* * *]

[* * *][(1-A) A wife may also present a petition for divorce to the district Court on the ground,

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality,

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.]

[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the district Court on the ground

(i) that there has been no resumption or cohabitation as between the parties to the marriage for a period of one year or upwards after passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

[27-A. Alternate relief in divorce proceedings .In any proceeding under this Act, or a petition for dissolution of marriage by 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 [click]

29. Restriction on petitions for divorce during first one year after marriage .(1) No petition for divorce shall be presented to the district Court[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 [before one year has passed] on the ground that the case is one of exceptional hardship suffered by the petitioner or 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 until after the [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 [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 [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 [said one year].

30. Remarriage of divorced persons .Where a marriage has been dissolved by a 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, [* * * *] either party to the marriage may marry again.

CHAPTER VII

Jurisdiction And Procedure

31. Court to which petition should be made .[(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

[(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; 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 the 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.

33. Proceedings to be in camera and may not be printed or published .(1) Every proceeding under this Act shall be conducted in cameraand 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), he 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) [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 the respondent; and

(e) there has not been any unnecessary or improper delay in instituting the proceeding; 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:[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.][(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 proceeding 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.]

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 petitioners adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground, and if the petitioners 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 as having regard to the husbands income, it may seem to the Court to be reasonable:[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, or 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 husbands 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 husbands property and ability [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 remarried or is not leading a chaste life, [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 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:[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.]

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 ninety days from the date of the decree or order.

39-A. 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 V 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 (V of 1908).

[40-A. Power to transfer petitions in certain cases .(1) Where

(a) a petition under this Act 0has 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 (V 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 has been empowered so to do under the said Code.

40-B. 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 it practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, 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 of notice of the petition 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.

40-C. Documentary evidence .Notwithstanding anything contained in any enactment to the contrary, no document 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 (V 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 contends 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).

CHAPTER VIII

Miscellaneous

42. Saving .Nothing contained in this Act shall affect the validity of any marriage not solemnized under its provisions; nor shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage.

43. Penalty on married person marrying again under this Act .Save as otherwise provided in Chapter III, every person who, being at the time married, procures a marriage of himself or herself to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code (45 of 1860), as the case may be, and the marriage so solemnized shall be void.

44. Punishment of bigamy .Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in section 494 and section 495 of the Indian Penal Code (45 of 1860), for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.

45. Penalty for signing false declaration or certificate .Every person making, signing or attesting any declaration or certificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in section 199 of the Indian Penal Code (45 of 1860).

46. Penalty for wrongful action of Marriage Officer .Any Marriage Officer knowingly and wilfully solemnized a marriage under this Act(1) without publishing a notice regarding such marriage as required by section 5; or(2) within thirty days of the publication of the notice of such marriage; or(3) in contravention of any provision contained in this Act,shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.

47. Marriage Certificate Book to be open to inspection .(1) The Marriage Certificate Book kept under this Act shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements therein contained.(2) Certified extracts from the Marriage Certificate Book shall, on application, be given by the Marriage Officer to the applicant on payment by him of the prescribed fee.

48. Transmission of copies of entries in marriage records .Every Marriage Officer in a State shall send to the Registrar-General of Births, Deaths and Marriages of that State at such intervals and in such form as may be prescribed, a true copy of all entries made by him in the Marriage Certificate Book since the last of such intervals, and in the case of Marriage Officers outside the territories to which this Act extends, the true copy shall be sent to such authority as the Central Government may specify in this behalf.

49. Correction of errors .(1) Any Marriage Officer who discovers any error in the form or substance of any entry in the Marriage Certificate Book may, within one month next after the discovery of such error, in the presence of the persons married, or, in case of their death or absence, in the presence of two other credible witnesses, correct the error by entry in the margin without any alteration of the original entry and shall sign the marginal entry and add thereto the date of such correction and the Marriage Officer shall make the like marginal entry in the certificate thereof.(2) Every correction made under this section shall be attested by the witnesses in whose presence it was made.(3) Where a copy of any entry has already been sent under section 48 to the Registrar-General or other authority, the Marriage Officer shall make and send in like manner a separate certificate of the original erroneous entry and of the marginal corrections therein made.

50. Power to make rules .(1) The Central Government, in the case of [* * *] officers of the Central Government, and the State Government, in all other cases, may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

(a) the duties and powers of Marriage Officers and the areas in which they may exercise jurisdiction;

(c) the form and manner in which any books required by or under this Act shall be maintained;

(d) the fees that may be levied for the performance of any duty imposed upon a Marriage Officer under this Act;

(e) the manner in which public notice shall be given under section 16;

(f) the form in which, and the intervals within which, copies of entries in the Marriage Certificate Book shall be sent in pursuance of section 48;

(g) any other matter which may be or requires to be prescribed.

[(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.(4) Every rule made by the State Government under this Act shall be laid, as soon as it is made, before the State Legislature.]

51. Repeals and savings .(1) The Special Marriage Act, 1872, and any law corresponding to the Special Marriage Act, 1872, in force in any Part B State immediately before the commencement of this Act are hereby repealed.(2) Notwithstanding such repeal,

(a) all marriages duly solemnized under the Special Marriage Act, 1872, or any such corresponding law shall be deemed to have been solemnized under this Act;

(b) all suits and proceedings in causes and matters matrimonial which, when this Act comes into operation, are pending in any Court, shall be dealt with and decided by such Court, so far as may be, as if they had been originally instituted therein under this Act.

(3) The provisions of sub-section (2) shall be without prejudice to the provisions contained in section 6 of the General Clauses Act, 1897, which shall also apply to the repeal of the corresponding law as if such corresponding law had been an enactment.

THE FIRST SCHEDULE

[See section 2 (b)]

“Degrees of Prohibited relationship”

PART I

1. Mother2. Father’s widow (step-mother)3. Mother’s mother4. Mother’s father’s widow (step grand-mother)5. Mother’s mother’s mother6. Mother’s mother’s father’s widow (step great grand-mother)7. Mother’s father’s mother8. Mother’s father’s father’s widow (step great grand-mother)9. Father’s mother10. Father’s father’s widow (step grand-mother)11. Father’s mother’s mother12. Father’s mother’s father’s widow (step great grand-mother)13. Father’s fasther’s mother14. Father’s father’s father’s widow (step great grand mother)15. Daughter16. Son’s widow17. Daughter’s daughter.18. Daughter’s son’s widow19. Son’s daughter20. Son’s son’s widow21. Daughter’s daughter’s daughter22. Daughter’s daughter’s son’s widow23. Daughter’s son’s daughter24. Daughter’s son’s son’s widow25. Son’s daughter’s daughter26. Son’s daughter’s son’s widow27. Son’s son’s daughter28. Son’s son’s son’s widow29. Sister30. Sister’sdaughter31. Brother’s daughter]32. Mother’s sister33. Father’s sister34. Father’s brother’s daughter35. Father’s sister’s daughter36. Mother’s sister’s daughter37. Mother’s brother’s daughterExplanation.—For the Purposes of this Part, the expression “widow” includes a divorced wife.

PART II

1. Father2. Mother’s husband (step-father)3. Father’s fathter4. Father’s mother’s husband (step grand-father)5. Father’s father’s father6. Father’s father’s mother’s husband (step great grand-father)7. Father’s mother’s father8. Father’s mother’s mother’s husband (Step great grand-father)9. Mother’s father10. Mother’s mother’s husband (step grand-father)11. Mother’s father’s father12. Mother’s father’s mother’s husband (step great grand-father)13. Mother’s mother’s father14. Mother’s mother’s mother’s husband (step great grand-father)15. Son16. Daughter’s husband17. Son’s son18. Son’s daughter’s husband19. Daughter’s son20. Daughter’s daughter’s husband21. Son’s son’s son22. Son’s son’s daughter’s husband23. Son’s daughter’s son24. Son’s daughter’s daughter’s husband25. Daughter’s son’s son26. Daughter’s son’s daughter’s husband27. Daughter’s daughter’s son28. Daughter’s daughter’s daughter’s husband29. Brother30. Brother’s son31. Sister’s son32. Mother’s brother33. Father’s brother34. Father’s brother’s son35. Father’s sister’s son.36. Mother’s sister’s son37. Mother’s brother’s son

Explanation.—For the purpose of this Part, the expression “husband” includes a divorced husband.

THE SECOND SCHEDULE

(See section 5)

NOTICE OF INTENDED MARRIAGE

ToThe Special Marriage Act, 1954Marriage Officer for the ………………….District.We hereby give you notice that a marriage under Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof.

Name Condition Occupation Age Dwelling Place Permanent dwelling place if present dwelling place not permanent Length of residence
A.B. Unmarried
Widower
Divorcee
C.D. Unmarried
Widow
Divorcee

Witness our hands this …………………………………………..day of ………………….19.

(S.d.) A.B.

(S.d.) C.D.

THE THIRD SCHEDULE

(See section 11)

DECLARATION TO BE MADE BY THE BRIDEGROOM

I, A.B., hereby declare as follows:-1. I am at the present time unmarried (or a widower or a divorcee, as the case may be).2. I have completed…………………years of age.3. I am not related to C.D.(the bride) within the degrees of prohibited relationship.4. I am aware that, if any statement in this declaration is false, and if in making such statement, I either know or believe it to be false or do not believe it to true. I am liable to imprisonment and also to fine.

(Sd.) A.B.(the Bridegroom)

DECLARATION TO BE MADE BY HE BRIDE

I, C.D., hereby declare as follows;-1. I am at the present time unmarried (or a widow or a divorcee, as the case may be).2. I have completed……………………………………..years of age.3. I am not related to A.B.(the Bridegroom) within the degrees of prohibited relationship.4. I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to be true, I am liable to imprisonment and also to fine.

(Sd) C.D.(the Bride)

Signed in our presence by the above-named A. B. and C. D. so far as we are aware there is no lawful impediment to the marriage.

(Sd) G.H. Three witness
(Sd) I.J.
(Sd) K.L.
Countersigned E.F.,
Marriage Officer.

Dated the day of 19

THE FOURTH SCHEDULE

(See Section 13)

CERTIFICATE OF MARRIAGE

I, E.F. hereby certify that on the day of 19 A.B. and C.D.* appeared before me and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, made the declarations of required by section 11 and that a marriage under this Act was the solemnized between them in my presence

(Sd) E.F.,
Marriage Officer for
(Sd) A.B.,
Bridegroom
(Sd) C.D.,
Bride
(Sd) G.H. Three witness
(Sd) I.J.
(Sd) K.L.

Dated the…………. day of………………. 20………………..

THE FIFTH SCHEDULE

(See section 16)

CERTIFICATE OF MARRIAGE CELEBRATED IN OTHER FORMS

I, E.F., hereby certify that A.B. and C.D. appeared before me {*Here in give particulars of then parties} this day 19 and that each of them, in my presence have declared that a ceremony of marriage has been performed between them and that they have been living together as husband and wife wince the time of their marriage, and that in accordance with their desire to have their marriage registered under this Act the said marriage has, this Day of 19 been registered under this Act, having effect as from…………..

(Sd) E.F.,
Marriage Officer for
(Sd) A.B.,
Bridegroom
(Sd) C.D.,
Bride
(Sd) G.H. Three witness
(Sd) I.J.
(Sd) K.L.

Dated the day of 20…………..

The Family Courts Act, 1984

step0002

Central Act

(66 OF 1984)

[14th September, 1984]An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.

Be it enacted by Parliament in the Thirty-fifth Year of the Republic of India as follows:

Preliminary

CHAPTER I

1. Short title, extent and commencement .(1) This Act may be called The Family Courts Act, 1984.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different [dates] may be appointed for different States.

(a) Judge means the Judge or, as the case may be, the Principal Judge, Additional Principal Judge or other Judge of a Family Court;

2. Definitions .-In this Act, unless the context otherwise requires,

(b) notification means a notification published in the Official Gazette;

(c) prescribed means prescribed by rules made under this Act;

(d) Family Court means a Family Court established under section 3;

(e) all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code.

CHAPTER II

Family Courts

3. Establishment of Family Courts .(1) For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this Act, the State Government, after consultation with the High Court, and by notification,

(a) shall, as soon as may be after the commencement of this Act, establish for every area in the State comprising a city or town whose population exceeds one million, a Family Court;

(b) may establish Family Courts for such other areas in the State as it may deem necessary.

(2) The State Government shall, after consultation with the High Court, specify, by notification, the local limits of the area to which the jurisdiction of a Family Court shall extend and may, at any time, increase reduce or alter such limits.

4. Appointment of Judges .(1) The State Government may, with the concurrence of the High Court, appoint one or more persons to be the Judge or Judges of a Family Court.

(2) When a Family Court consists of more than one Judge,

(a) each of the Judges may exercise all or any of the powers conferred on the Court by this Act or any other law for the time being in force;

(b) the State Government may, with the concurrence of the High Court, appoint any of the Judges to be the Principal Judge and any other Judge to be the Additional Principal Judge;

(c) the Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of the business of the Court among the various Judges thereof;

(d) the Additional Principal Judge may exercise the powers of the Principal Judge in the event of any vacancy in the office of the Principal Judge or when the Principal Judge is unable to discharge his functions owing to absence, illness or any other cause.

(3) A person shall not be qualified for appointment as a Judge unless he

(a) has for at least seven years held a judicial office in India or the office of a member of a Tribunal or any post under the Union or a State requiring special knowledge of law; or

(b) has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or

(c) possesses such other qualifications as the Central Government may, with the concurrence of the Chief Justice of India, prescribe.

(4) In selecting persons for appointment as Judges,

(a) every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected; and

(b) preference shall be given to women.

(5) No person shall be appointed as, or hold the office of, a Judge of a Family Court after he has attained the age of sixty-two years.

(6) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of, a Judge shall be such as the State Government may, in consultation with the High Court, prescribe.

5. Association of social welfare agencies, etc .The State Government may, in consultation with the High Court, provide, by rules, for the association, in such manner and for such purposes and subject to such conditions as may be specified in the rules, with a Family Court of

(a) institutions or organisations engaged in social welfare or the representatives thereof;

(b) persons professionally engaged in promoting the welfare of the family;

(c) persons working in the field of social welfare; and

(d) any other person whose association with a Family Court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act.

6. Counsellors, officers and other employees of Family Courts .(1) The State Government shall, in consultation with the High Court, determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such counsellors, officers and other employees as it may think fit.

(2) The terms and conditions of association of the counsellors and the terms and conditions of service of the officers and other employees, referred to in sub-section (1), shall be such as may be specified by rules made by the State Government.

CHAPTER III

Jurisdiction

7. Jurisdiction .(1) Subject to the other provisions of this Act, a Family Court shall

(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends.

Explanation. The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment.

8. Exclusion of jurisdiction and pending proceedings .Where a Family Court has been established for any area,

(a) no district Court or any subordinate civil Court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;

(b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),

(i) which is pending immediately before the establishment of such Family Court before any district Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and

(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established,

shall stand transferred to such Family Court on the date on which it is established.

CHAPTER IV

Procedure

9. Duty of Family Court to make efforts for settlement .(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.

10. Procedure generally .(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)” , before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil Court and shall have all the powers of such Court.(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.

11. Proceedings to be held in camera .In every suit or proceedings to which this Act applies, the proceedings may be held in camera if the Family Court so desires and shall be so held if either party so desires.

12. Assistance of medical and welfare experts .In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act.

13. Right to legal representation .Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.

14. Application of Indian Evidence Act, 1872 .A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).

15. Record of oral evidence .In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record.

16. Evidence of formal character on affidavit . (1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court.

(2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit.

17. Judgment . Judgment of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision.

18. Execution of decrees and orders .(1) A decree or an order [other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)” , passed by a Family Court shall have the same force and effect as a decree or order of a Civil Court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908), for the execution of decrees and orders.

(2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code.

(3) A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary Civil Court to which it is sent for execution.

CHAPTER V

[Appeals and Revisions]

19. Appeal . (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991.]

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.” ]

[(5)] Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.

[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.

CHAPTER VI

Miscellaneous

20. Act to have overriding effect .The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

[21. Power of High Court to make rules ].(1) The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carrying out the purposes of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

(a) normal working hours of Family Courts and holding of sittings of Family Courts on holidays and outside normal working hours;

(b) holding of sittings of Family Courts at places other than their ordinary places of sitting;

(c) efforts which may be made by, and the procedure which may be followed by, a Family Court for assisting and persuading parties to arrive at a settlement.

22. Power of the Central Government to make rules .(1) The Central Government may, with the concurrence of the Chief Justice of India, by notification, make rules prescribing the other qualifications for appointment of a Judge referred to in clause (c) of sub-section (3) of section 4.

(2) Every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

[23. Power of the State Government to make rules] .(1) The State Government may, after consultation with the High Court, by notification, make rules for carrying out the purposes of this Act.(2) In particular and without prejudice to the generality of the provisions of sub-section (1), such rules may provide for all or any of the following matters, namely:

(a) the salary or honorarium and other allowances payable to, and the other terms and conditions of Judges under sub-section (6) of section 4;

(b) the terms and conditions of association of counsellors and the terms and conditions of service of the officers and other employees referred to in section 6;

(c) payment of fees and expenses (including travelling expenses) of medical and other experts and other persons referred to in section 12 out of the revenues of the State Government and the scales of such fees and expenses;

(d) payment of fees and expenses to legal practitioners appointed under section 13 as amicus curiae out of the revenues of the State Government and the scales of such fees and expenses;

(e) any other matter which is required to be, or may be, prescribed or provided for by rules.

(3) Every rule made by a State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature.

The Family Courts (Calcutta High Court) Rules, 1990[West Bengal]

The Family Courts (Calcutta High Court) Rules, 1990

By The High Court of Calcutta

Appellate Side

Notification No. 2072-A, dated the 19th March, 1991. – In exercise of the powers conferred by section 21 of the Family Courts Act, 1984 (No. 66 of 1984) the High Court of Calcutta hereby makes the following rules for the Family Courts in the State of West Bengal.This is in supersession of the Family Courts Rules, 1988, as published under High Court’s Notification No. 1476-A dated 19.2.1988.

1. Short title, commencement and application. – These rules may be called the Family Courts (Calcutta High Court) Rules, 1990.

2. These rules shall come into force on the date of their publication in the Official Gazette.

3. These rules shall apply to the Family Courts established in the State of West Bengal under the Family Courts Act, 1984.

4. Definition. – In these rules, unless the context otherwise requires, –

(a) “Act” means The Family Courts Act, 1984;

(b) “Centre” means a Counselling Centre and includes office of the organisation/institution which the Counsellor represents;

(c) “Court” means the Family Court established under section 3 of the Act;

(d) “Petition” shall include an application under Chapter IX of the Code of Criminal Procedure;

(e) “Principal Counsellor” means the Principal Counsellor appointed by the High Court and where such Counsellor is not appointed, it shall include counsellor or counsellors as the case may be;

(f) “Registrar” means Registrar appointed under the West Bengal Family Court Rules, 1994.

5. Panel of Counsellors. – For preparing a panel of the counsellors the High Court will empanel voluntary organisations/social action groups/welfare agencies who will maintain Family Counselling Centre with minimum infrastructure within the jurisdiction of the respective Court. The names and addresses of the representatives of such approved agencies shall be empanelled by the High Court within January every year and the High Court will maintain a register of the Counsellors whose term will expire till name(s) of the successor(s) are forwarded by the organisation concerned for the subsequent year.

6. Amicus curiae. – The court may appoint a lawyer amicus curiae to extend legal aid to the parties who will also assist the Court in the discharge of its duties as contemplated in section 13 of the Act.

Institution of Proceedings And Service

7. Institution of proceedings. – All proceedings instituted before the Family Court will be by way of a petition. However, in respect of applications under Chapter IX of the Code of Criminal Procedure, 1973, the provisions of that Code will apply.

8. Filing of petitions in duplicate. – A petition or any other application will be filed in duplicate. One copy of such petition or application will be forwarded by the Registrar of the Family Court to the Principal Counsellor.9. Summons to respondent. – In all matters other than those under Chapter IX of the Code of Criminal Procedure, 1973, the writ of summons to appear and answer shall be in Form No. 1 with such variations as the circumstances of the case may require.10. Name and address of the party to be stated in every process. – The name and address of the party shall be stated in every Writ of Summons, Witness Summons, Interim Application Notice, Warrant and every process of the court issued at the instance of such party.11. Summons, etc. how attested and signed. – All Writs of Summons, Rules, Orders, Warrants and other mandatory processes shall be sealed with the seal of the court and shall be signed by the Registrar adding thereto the date of signing.12. Sealing of summons, rules, decrees. – The seal of the court shall not be affixed to any Writ of Summons, Rules, Order, Warrant or other mandatory process, unless the same is signed by an officer of the court to be called the Sealer and unless the name of the party is subscribed thereto. The date of the sealing shall be inserted below the signature of the Sealer.13. Returnable date of summons. – Unless otherwise ordered, the writ of summons shall be made returnable three weeks after the date of the fling of the petition, if the respondent resides within the local limits of the court, and five weeks after the date of the filing of the petition, if the respondent resides outside the said limits. The returnable date will be fixed on the day of the week fixed for giving directions as provided in Rule 24.14. Returnable date of summons in petition to be on the day fixed for giving directions. – The writ of summons shall be made returnable on the day on which the petition is to be placed on board for directions as herein provided in Rule 23.15. Mode of service of summons. – A writ of summons shall be served in the manner prescribed in the Code of Civil Procedure, 1908, save and except in proceedings under Chapter IX of the Code of Criminal Procedure, 1973, where the provisions of that Code will apply and such summons shall be served on a respondent personally.

16. Writ of summons and other process may be served on Saturdays, Sundays and Holidays. – Writ of summons or other process may be served even on Saturdays, Sundays or on holidays notified by the court.17. Copy of petition to be furnished to the respondent. – Any respondent applying to the petitioner for a copy of the petition and exhibits annexed thereto shall be furnished with the same but where there are several respondents, it shall be sufficient to supply one copy of the petition and exhibits to the party/parties:Provided that if the application is made after the passing of a decree in a petition, such copy need only be furnished to the respondent on payment of the copying charges.18. Power to direct issue of fresh summons. – Whenever upon further amendment of any writ 0? summons the Registrar is of opinion that a fresh writ of summons should be substituted, he shall direct it to be done and such fresh writ of summon shall be prepared by the petitioner and be examined, signed and sealed by the proper officer.19. Proof of service of summons. – Unless the court shall otherwise order, the service of a summons to appear and answer shall be proved by evidence showing that the summons was served in the manner provided by the Code of Civil Procedure, 1908. Such proof shall ordinarily be by the affidavit of the bailiff and (as to such matter as the bailiff cannot speak to of his knowledge) of the person who attended the bailiff for the purpose of identification at the time of service, or of such other person or persons as can speak to the identification of the person served or as to other matters necessary to be proved in respect of the service.

20. When service through Court. – When the summons has been served through another court, the service may be proved by deposition made before the court through which the service was effected.

21. Substituted service. – Application for substituted service of the writ of summons shall be made to the Registrar. The application shall be supported by an affidavit, and in the case of service through another court, by the deposition of the officer who attempted to make the service, and of such other person or persons as may have accompanied him for the purpose of pointing out the party to be served, stating when, where and how such service was attempted to be made.

Proceedings In Court

22. Directions on the returnable date. – On the returnable date of the summons, the petition will be placed for directions before a Judge of the Family Court to whom this work may be assigned by the Principal Judge of the Family Court.23. Date of giving directions. – One day in a week may be designated by the Principal Judge for giving of such directions.24. Presence of Counsellor in court. – On the date fixed for giving directions, the Principal Counsellor or such other Counsellor designated by him shall attend the court of the Judge giving directions.

25. Direction to attend Counsellor. – When giving such directions, the Judge shall, in consultation with the Principal Counsellor or such other Counsellor who may be present in court, direct the parties to attend a specified Counsellor for the purpose of counselling.

26. Selection of Counsellor. – Such Counsellor will be chosen bearing in mind the convenience of the parties, their special requirements and the area in which the unit to which that Counsellor is attached is located.

27. Counsellor to fix place, time and date for counselling. – The Counsellor appointed to counsel the parties will fix the place, lime and date of appointment. The parties shall be bound to attend the Counsellor at the place, date and time so fixed.

28. Failure to attend counselling. – If one of the parties fails to attend the Counsellor on the date and at the time so fixed, the Counsellor may fix another date and time and inform the absentee party accordingly by registered post. If the said party does not attend the counselling centre on such adjourned date, the Counsellor may, unless he gives further opportunity, make a report to the court stating that one or both the parties have failed to attend the counselling centre. On such report being made, the court may proceed with the matter without prejudice to other powers of the court to take action against a defaulting party.29. Functions of Counsellor. – Counsellor entrusted with any petition shall assist and advise the parties regarding the settlement of the subject-matter of dispute between the parties or any part thereof. The Counsellor shall also help the parties in arriving at reconciliation.30. Home visits. – The Counsellor in the discharge of his duties will be entitled to pay home visits to the homes any of the parties.31. Interview. – The Counsellor in the discharge of his duties will be entitled to interview relatives, friends and acquaintances of parties or any of them.

32. Information from employer. – The Counsellor in the discharge of his duties may seek such information as he may deem fit from the employer of any of the parties.33. Reference to experts. – The Counsellor may refer the parties to an expert in any other area such expert in medicine or psychiatry except when specific directions are given by court.34. Panel of experts. – The Principal Judge in consultation with the Principal Counsellor of the Family Court shall prepare a panel of such experts.

35. List of institutions, agencies, etc. – The Principal Judge in consultation with the Principal Counsellor shall also prepare a list of institutions, organisations or agencies working in the area of family welfare, child guidance, employment or in any other area that he may deem fit, in order to enable a Counsellor or parties to obtain the assistance of such an institution, organisation or agency.36. Assistance of other organisations etc. – The Counsellor may take the assistance of such an organisation, institution or agency in the discharge of his duties.37. Confidentiality of information. – Information gathered by the Counsellor, any statement made before the Counsellor or any notes or report prepared by the Counsellor will be treated as confidential. The Counsellor shall not be called upon to disclose this information, statements, notes or report to any court except with the consent of both the parties.

38. Counsellor not to give evidence. – The Counsellor shall not be permitted to give evidence in any court in respect of this information, statements, notes or report.39. Report relating to home environment. – The Counsellor will submit to the court a report within such time as may be specified by the court relating to home environment of the parties concerned, their personalities and their relationship with their child and /or children in order to assist the court in deciding the question of custody or guardianship of any child or children of the marriage.40. Report relating to income etc. – The Counsellor will also submit to the court a report within such time as may be specified by the court relating to income or standard of living of the party or parties concerned in order to assist the court in determining the amount of maintenance and/or alimony to be granted to one of the parties.41. Report on any other subject. – The court may also request the Counsellor to submit to it a report within such time as may be specified by the court probably within six months on any other subject in order to assist the court in adjudicating upon the matter before it or any part thereof.42. Parties’ right to make submission. – The parties will be entitled to make their submissions on the report.

43. Counsellor not to be cross-examined. – The Counsellor shall not be asked to give evidence, and shall not be cross-examined in any court in respect of the report so made.44. Submission of memorandum. – Save as aforesaid, the Counsellor will submit a brief memorandum to the court informing the court of the outcome of the proceedings before him.45. Settlement before Counsellor. – When the parties arrive at a settlement before the Counsellor relating to the dispute or any part thereof such settlement shall be reduced to writing and shall be signed by the parties and countersigned by the Counsellor. The court shall pronounce a decree or order in terms thereof unless the court considers the terms of the settlement unconscionable or unlawful.

Hearing Of Petitions In Court

46. Filing memorandum in court. – On the proceedings before the Counsellor coming to an end and on the Counsellor filing memorandum in the petition setting out the outcome of the proceedings before him, the Registrar shall call a meeting of the parties to fix a date of hearing of the petitions. Intimation of such meeting shall be given to the parties by registered post or personally.

47. Meeting before Registrar. – At the meeting so fixed the Registrar shall fix a date of hearing after consulting both the parties.48. Ascertaining time to be taken up in hearing. – Registrar will also ascertain from the parties the approximate time to be taken by each party before the court for the hearing of the matter on the date of hearing and the time so ascertained shall be kept free for the disposal of the matter. Such time will be kept available on the following consecutive working days also if the matter is likely to take more than a day.

49. Consequence of absence before the Registrar. – In the event of any party remaining absent at the meeting called by the Registrar, the Registrar shall fix a date of hearing as he may deem fit and such date shall be fixed at least 4 weeks after the date of the meeting.50. Placing the petition on the board of the court. – On the dates so fixed by the Registrar the petition shall be placed on the board of the court for hearing and final disposal.

51. Adjourned date of hearing. – Any party finding the date fixed by the Registrar unsuitable for any reason may get it altered by the Registrar after notice to the other side but at least two weeks before it is placed on the daily board.52. Registrar not to alter date. – Registrar will not ordinarily alter the date when the date has been fixed in the presence of both the sides.

53. Adjournment by the court. – A petition so fixed on the daily board will not be adjourned by the court unless there are exceptional circumstances justifying such adjournment and unless they are such as could not have been foreseen when the date of hearing was fixed before the Registrar. The court shall record its reasons for adjourning a matter.

54. Independent legal representation of a minor. – It will be open to the court to appoint any person individually or person/ persons representing any approved voluntary registered organisation/ social action group/registered and established welfare home capable of protecting the interests of a minor as his/her representative to represent independently the minor affected by litigation before the court. The court shall endeavour to safeguard that such representative should not derive any undue pecuniary advantage out of this appointment. The court may appoint a representative amicus curiae to assist the court in the discharge of its duties.

55. Memorandum of evidence. – The court shall prepare a memorandum of substance of what the witness deposes as prescribed under section 15 of the Act.

56. Provision of C.P.C. and Cr.P.C. to apply. – Save as aforesaid, the provisions of the Code of Civil Procedure, 1908, or the Code of Criminal Procedure, 1973, as the case may be, shall apply to the proceedings before the Family Court.

57. Working hours and place of sitting of court. – (i) The court shall normally sit between 10-30 a.m. and 4-30 p.m. with a break of half an hour from 1-30 p.m. to 2-00 p.m. The court may close at 2 p.m. on Saturday, if the state of work permits.

(ii) The court shall normally hold its sitting at the place/places as fixed by the Government in consultation with the High Court as contemplated in sub-section (2) of section 3 of the Act:

Provided that the court may hold its sitting at places other than the ordinary place of sitting on such days including Sundays and holidays as it deems fit.

Interim Applications

58. Interim applications. – All interim applications to the court will be separately numbered as ‘Interim Application’.No._____________________In Petition No.____________________

59. Interim applications while matter is pending before counsellor. – An interim application may be made even while the matter is pending before a Counsellor.60. Report from the Counsellor. – The court may ask the Counsellor to submit an interim report for the purpose of such application before deciding an interim application.

61. Direction for accommodation in a short-stay home. – Upon consideration of such application the court may pass orders as it may think fit including direction on the authority of a short-stay home attached to any registered voluntary organisation/social organisation/ organisation rendering legal aid and advice to the vulnerable section of the community, to arrange accommodation for the applicant before it for a temporary period with or without any charge.

62. Direction for payment of board and lodging charges. – The court may while disposing of such application direct payment of a portion of the maintenance if so granted, towards the cost of board, lodging, etc., during the period of short-stay of the applicant in a short-stay home.

Guardianship

63. Applications for guardianship. – All applications for guardianship under the Act other than applications over which the High Court has jurisdiction, will be filed in duplicate before the Family Court.

64. Form. – Such applications will be in the form of a petition.65. Assistance of social welfare agency. – In deciding a guardianship petition, the court may take the assistance of a social welfare agency for the scrutiny of the petition. The court may also ask such an agency for its report thereon.

66. Fees. – The court may prescribe fees to be paid to the said agency for its work.

67. Application to be accompanied by Home Study Report. – Every application for guardianship, when it is by a person other than the natural parent or natural guardian of the child will be accompanied by home study report of the persons asking for such guardianship and his/her spouse, if any, prepared by an approved family welfare agency or a suitably trained social worker. A list of such agencies and persons shall be prepared by the Principal Judge and Principal Counsellor in consultation with the High Court. Such list shall be forwarded to the High Court every two years for review.

68. Report from welfare agency. – In deciding an application under Rule 67 the court shall also seek report from an approved Welfare agency for providing information which will form a basis for the selection of the prospective guardian for the child as prescribed in form No. 2 of these rules.

69. Home Study Report in applications by foreigners. – When the petition for guardianship is filed by a foreigner the court may accept a home study report prepared by a recognised family welfare agency of the country where the foreigner resides.

70. Contents. – Every petition for guardianship shall be accompanied by –

(i) Two recommendations from respectable members of the community.

(ii) A salary certificate or statement relating to the annual income of the petitioner and his/her financial position.

(iii) A health certificate of the petitioner and his/her spouse signed by a medical practitioner as also a medical report regarding sterility, if any, of the petitioner and/or the spouse.

(iv) A health certificate of the child proposed to be taken in guardianship signed by a medical practitioner.

(v) A child study report of the child proposed to be taken in guardianship together with a photograph of the child. Such report shall be in the prescribed Form No. 2 when the child is institutionalised or committed by the court.

(vi) A declaration from the proposed guardian and his/her spouse, if any, expressing their willingness to take the child in guardianship.

71. Applications by foreigners. – When the petitioner applying for guardianship is a foreigner, the petition will also be accompanied by

(i) permission from the country where the petitioner resides, for the child to enter the country; and,

(ii) an undertaking by a recognised family welfare agency of the country concerned to supervise the child in the home of the petitioner until the child is legally adopted.

72. Recommendation of welfare agency. – No application on behalf of a foreigner for being appointed guardian of the person of an Indian minor under the Guardians and Wards Act, 1890, shall be entertained unless recommended in that regard by a welfare agency licensed/recognised for the time being by the Government of the country of which the applicant is a citizen.

Note : A list of agencies mentioned in Rules 71 and 72 approved by their respective Government is set out in Appendix-I to these Rules.

73. Sponsoring an application by child welfare agency. – (i) Only a child welfare agency recognised for the time being by the Government of India can sponsor submission of an application for declaring a foreigner to be the guardian of an Indian child to the court competent to deal with it and unless so sponsored, such an application shall not be entertained.

(ii) The court may cause publication of a photograph of the child in a leading newspaper and other media including television to ascertain the identity of the child and whether there is any claim by biological parents at the cost of the proposed guardian.

Note : A list of agencies valid for the State of West Bengal currently recognised by the Government of India is set out in Appendix-II to these Rules.

74. Procedure for dealing with an application for guardianship. – (1) In dealing with such an application the court may take the assistance of any of the approved welfare agencies/organisation based in West Bengal including that mentioned in Appendix II.(2) Notice of an application for declaring a foreigner to be the guardian of an Indian child shall be given in any two leading English newspapers and also to the Indian Council of Social Welfare or the Indian Council of Child Welfare or any of its State units for scrutiny of the application with a view to ensuring that it will be for the welfare of the child to be given to the foreigner whose application for guardianship is under consideration.(3) In disposing of such an application the court may make such enquiries as it may deem fit and proper for being satisfied that such appointment of a foreigner as guardian will be conducive to the interest and welfare of the child, no order for such appointment shall be made nor shall the court permit the child to be removed to the country of the applicant for eventual adoption unless the court is so satisfied and unless the applicant. makes provisions by way of execution of a bond or otherwise to enable the child to be repatriated to India should it become necessary to do so for any reason. In every such enquiry, if the child. is above the age of seven years, the court shall ascertain the wishes of the child.(4) In every case where such an application is made, the applicant shall deposit with the court a sum of Rs. 5001 towards the costs of scrutiny as enjoined by these rules and all costs in that regard shall first be met out of the said sum, subject to any further direction by the court for the balance.(5) Every appointment so made shall be subject to a condition to be incorporated in the order that the foreigner shall submit to the court as also to the recognised Indian agency sponsoring the application for guardianship the full details of the normal residence of the child in the foreign country where the child is to be taken and progress report of the child along with all information regarding change, if any, in the residence of the child and a recent photograph quarterly during the first two years and half yearly for the next five years.(6) The order appointing a foreigner to be the guardian of an Indian child shall carry, attached to it, a photograph of the child duly authenticated by an officer authorised by the court in that behalf and another copy of such photograph shall be kept on the record.(7) If the biological parents of the child are known they may be properly assisted by the social or child welfare agency /home etc., in taking a decision about the relinquishing of the child for adoption. But no notice of such an application for declaring a foreigner to be the guardian of an Indian child should be given to the child’s biological parents nor should it be published in any newspaper.(8) When an order appointing a foreigner as guardian of an Indian child is made by a court an intimation shall be given by the court to the Ministry of Social Welfare, Government of India, as also to the Relief and Welfare Department, Welfare Branch, Government of West Bengal under intimation to the judicial department of the Government.(9) If due to disruption or failure of adoption in the foreign country, any alternative placement of the child is considered necessary by the recognised foreign agency, the said fact should forthwith be reported to the court making the appointment and necessary permission should be taken from the said court for such placement. Every such application shall be procured through the Indian agency which had sponsored the original appointment and notice thereof shall be given to the Ministry of Social Welfare, Government of India as also to the Relief and Welfare Department, Welfare Branch, Government of West Bengal under intimation to the judicial department of the Government.(10) The court shall review the living condition of the Indian child taken in guardianship by a foreigner under the Act through any of the approved organisations of the State of West Bengal recognised by the Ministry of Social Welfare, Government of India.

75. Consent of natural mother. – When the child proposed to be given in guardianship is an abandoned child the court shall satisfy itself that the consent of the natural mother was taken at the time of abandonment of the child or at any time thereafter to the child’s being given in guardianship to another person. Then name of the natural mother or natural father as also the consent letter from natural parent shall be treated as confidential. Consent letter shall be kept in court in a sealed cover.

76. Affidavits of the institution. – When the child being placed in guardianship is an abandoned child from an institution for abandoned children, the institution shall file an affidavit setting out the circumstances under which the child was abandoned. The affidavit shall also set out whether the institution is agreeable to the child being given in guardianship to the petitioner.

77. Attempts for placement in India. – The court, in its discretion may not entertain a petition for guardianship by a foreigner unless the court is satisfied that adequate attempts for at least three months or such other period as the court deem fit have first been made to place the child in an Indian Home. For this purpose the court may ask the petitioner to obtain a no-objection letter from a voluntary co-ordinating agency or any other similar organisation working for the placement of children in Indian Homes.

78. Court’s power to waive the rules. – The court shall have the power to waive the requirements for reasons to be recorded of any of the above rules relating to petitions for guardianship in a suitable case.

79. Court’s power to direct a Counsellor in certain cases. – In case of a child placed in guardianship the court may, at any time direct a counsellor attached to the court to supervise the placement of the child and submit a report thereon to the court in such manner as the court may deem fit.

80. Quarterly reports to be sent by the court. – The court shall send quarterly reports in respect of Indian children taken abroad by a foreign national under the Act to the Secretary, Ministry of Social Welfare, Government of India and the Relief and Welfare Department of the State Government. The report shall be in respect of such quarter ending with the 31st March, 30th June, 30th September and the 31st December. The report shall be in the proforma detailed below.1. Name of the State.2. Number of children given in guardianship to foreign nationals during the quarter under report.3. Country-wise break-up of the number of children in column (2).4. Number of children permitted to be taken abroad by foreign nationals as guardians during the quarter under report.5. Country-wise break-up of the children in column (4).6. Number of applications of foreign nationals for guardianship of Indian children which were rejected during the quarter under report.7. Number of applications of foreign nationals for guardianship of Indian children which were pending final disposal at the end of the quarter.8. Remarks or comments, if any.

Form NO. 1

(vide rule 9)

In The Family Court At

Petition No………………………….. of 20…………..

………………………………………..PetitionerversusTo………………………………………(Respondent)Whereas the abovenamed petitioner has instituted a Suit against you, as set out in the petition (annex the petition).You are hereby required to file in this Court an appearance in person within 3 weeks from the service of this summons upon you.And whereas, the petition will be placed for directions on the board of the Judge on the…………….. day of………… 20……….You are hereby summoned to appear before the Judge to answer the Petitioner’s claim on the said………….. day of……………. 20……. at 11 o’clock in the forenoon, andTake notice that on the day abovementioned after hearing parties who appear, directions will be given by the Judge as to the date of hearing before a counsellor of the Family Court and other matters concerning the petition, andTake further notice that if you fail to file your appearance in person as directed above, or if you fail to appear before the Judge on the day abovementioned the petition may be ordered to be set down on Board on the same day or any subsequent day as “undefended” and you will be liable to have a decree or order passed against you.Witness………………………….. Principal Judge at……………………………. aforesaid, this………………………. day of…………………. 20………….Sealer.

Registrar.

The…………………….. day of………………………. 20……….PetitionerAddress:

Christian Marriage Act, 1872

Keywords : Indian christian

Parliament

Christian Marriage Act, 1872
1. Short title.
2. Enactments repealed.
3. Interpretation clause.
4. Marriages to be solemnized according to Act.
5. Persons by whom marriages maybe solemnized.
6. Grant and revocation of licences to solemnize marriages.
7. Marriage Registrars.
8. Marriage Registrars in Indian States.
9. Licensing of persons to grant certificates of marriage between Indian Christians.
10. Time for solemnizing marriage.
11. Place for solemnizing marriage.
12. Notice of intended marriage.
13. Publication of such notice.
14. Notice of intended marriage in private dwelling.
15. Sending copy of notice to Marriage Registrar when one party is a minor.
16. Procedure on receipt of notice.
17. Issue of certificate of notice given and declaration made.
18. Declaration before issue of certificate.
19. Consent of father, or guardian, or mother.
20. Power to prohibit by notice Issue of certificate.
21. Procedure on receipt of notice.
22. Issue of certificate in case of minority.
23. Issue of certificate to Indian Christians.
24. Form of certificate.
25. Solemnization of marriage.
26. Certificate void if marriage not solemnized within two months.
27. Marriages when to be registered.
28. Registration of marriages solemnized by Clergymen of Church of England.
29. Quarterly returns toArchdeaconry.
30. Registration and returns of marriages solemnized by Clergymen of Church of Rome.
31. Registration and returns of marriages solemnized by Clergymen of Church of Scotland.
32. Certain marriages to be registered in duplicate.
33. Entries of such marriages to be signed and attested.
34. Certificate to be forwarded to Marriage Registrar, copied and sent to RegistrarGeneral.
35. Copies of certificates to be entered and numbered.
36. Registrar to add number of entry to certificate, and send to Registrar-General.
37. Registration of marriages between Indian Christians by persons referred to in clauses (1), (2) and (3) of section 5.
38. Notice of intended marriage before Marriage Registrar.
39. Publication of notice.
40. Notice to be Sled and copy entered in Marriage Notice Book.
41. Certificate of notice given and oath made.
42. Oath before issue of certificate.
43. Petition to High Court to order certificate In less than fourteen days.
44. Consent of father or guardian.
45. Petition where person whose consent is necessary is insane.
46. Petition when Marriage Registrar refuses certificate.
47. Petition when Marriage Registrar in Indian State refuses certificate.
48. Petition when Registrar doubts authority of person forbidding.
49. Liability for frivolous protest against issue of certificate.
50. Form of certificate.
51. Solemnization of marriage after issue of certificate.
52. When marriage not had within two months after notice, new notice required.
53. Marriage Registrar may ask for particulars to be registered.
54. Registration of marriages solemnized under Part V.
55. Certificates to be sent monthly to Registrar General.
56. Officers to whom Registrars in Indian States shall send certificates.
57. Registrars to ascertain that notice and certificate are understood by Indian Christians.
58. Indian Christians to be made to understand declarations.
59. Registration of marriages between Indian Christians.
60. On what conditions marriages of Indian Christians may be certified.
61. Grant of certificate.
62. Keeping of register-book and deposit of extracts therefrom with Registrar General.
63. Searches In register-book and copies of entries.
64. Books in which marriages of Indian Christians under Part I or Part III are registered.
65. Part VI not to apply to Roman Catholics.
66. False oath, declaration notice or certificate for procuring marriage.
67. Forbidding, by false personation, issue of certificate by Marriage Registrar.
68. Solemnizing marriage without due authority.
69. Solemnizing marriage out of proper time, without witnesses.
70. Solemnizing without notice or within fourteen days after notice, marriage with minors.
71. Issuing certificate, or marrying without publication of notice.
72. Issuing certificate after expiry of notice, or, in case of minor, within fourteen days after notice, or against authorised prohibition.
73. Persons authorised to solemnize marriage (other than clergy of Churches of England, Scotland or Rome).
74. Unlicensed person granting certificate pretending to be licensed.
75. Destroying or falsifying register-books.
76. Limitation of prosecutions under Act.
77. What matters need not be proved in respect of marriage in accordance with Act.
78. Corrections of error.
79. Searches and copies of entries.
80. Certified copy of entry in marriage-register, etc. to be evidence.
81. Certificates of certain marriages to be sent to Central Government.
82. State Government to prescribe fees.
83. Power to make rules.
84. Power to prescribe fees and rules for Indian States.
85. Power to declare who shall be District Judge.
86. Powers and functions exercisable as regards Indian State.
87. Saving of Consular marriages.
88. Non-validation of marriages within


Act No. 15 of 1872
[18th July, 1872]

An Act to consolidate and amend the law relating to the solemnization In India of the marriages of Christians.
Preamble
WHEREAS it is expedient to consolidate and amend the law relating to the solemnization in India of the marriages of persons professing the Christian religion; It is hereby enacted as follows:-



Preliminary

1. Short title.- This Act may be called The [Indian] Christian Marriage Act, 1872.

Extent.
[It extends to the whole of India [except [the territories which, immediately before the 1st November, 1956, were comprised in the States] of Travancore-Cochin, Manipur and Jammu and Kashmir].]

2. Enactments repealed.- [Repealed by the Repealing Act, 1938 (1 of 1938), Section 2 and Schedule.]

3. Interpretation clause.– In this Act, unless there is something repugnant in the subject or context,
“Church of England” and “Anglican” mean and apply to the Church of England as by law established;
“Church of Scotland” means the Church of Scotland as by law established;
“Church of Rome” and “Roman Catholic” mean and apply to the Church which regards the Pope of Rome as its spiritual head.
“Church” includes any chapel or other building generally used for public Christian worship; [“India” means the [territories] to which this Act extends.]
“Minor” means a person who has not completed the age of twenty-one years and who is not a widower or a widow;

the expression “Christians” means persons professing the Christian religion;
[and the expression “Indian Christians” includes the Christian descendants of natives of India converted to Christianity, as well as such converts];

[Registrar-General of Births, Deaths and Marriages” means a Registrar-General of Births, Deaths and Marriages appointed under the Births, Death and Marriages Registration Act, 1886.]


PART I
The Persons By Whom Marriages May Be Solemnized

4. Marriages to be solemnized according to Act.- Every marriage between persons, one or both of whom is [or are] a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

5. Persons by whom marriages maybe solemnized.- Marriages may be solemnized in [India]
(1) by any person who has received episcopal ordination; provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister;
(2) by any Clergyman of the Church of Scotland, provided that such marriage he solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland;
(3) by any Minister of Religion licensed under this Act to solemnize marriages;
(4) by, or in the presence of, a Marriage Registrar appointed under this Act;
(5) by any person licensed under this Act to grant certificates of marriage between [Indian Christians],

[6. Grant and revocation of licences to solemnize marriages.- The [State] Government, so far as regards the territories under its administration [* * *], may, by notification in the [Official Gazette] [* * *], grant licences to Ministers of Religion to solemnize marriages within such territories [* * * * * *] and may, by a like notification, revoke such licences.]

7. Marriage Registrars.- The [State] Government may appoint one or more Christians, either by name or as holding any office for the time being, to be the Marriage Registrar or Marriage Registrars for any District subject to its administration.
Senior Marriage Registrar.Where there are more Marriage Registrars than one in any district, the [State] Government shall appoint one of them to be the Senior Marriage Registrar.
Magistrate when to be Marriage Registrar.When there is only one Marriage Registrar in a District, and such Registrar is absent from such district, or ill, or when his office is temporarily vacant, the Magistrate of the district shall act as, and be, Marriage Registrar thereof during such absence, illness or temporary vacancy.

8. Marriage Registrars in Indian States.-[Omitted by A.L.O., 1950.]
9. Licensing of persons to grant certificates of marriage between Indian Christians.- The [State] Government [* * *] may grant a licence to any Christian, either by name or as holding any office for the time being, authorizing him to grant certificate of marriage between [Indian] Christians.
Any such licence may be revoked by the authority by which it was granted, and every such grant or revocation shall be notified in the Official Gazette.


 

PART II
The Time And Place At Which Marriages May Be Solemnized

10. Time for solemnizing marriage.- Every marriage under this Act shall be solemnized between the hours of six in the morning and seven in the evening.
Exceptions
Provided that nothing in this section shall apply to-
(1) a Clergyman of the Church of England solemnizing a marriage under a special licence permitting him to do so at any hour other than between six in the morning and seven in the evening, under the hand and seal of the Anglican Bishop of the Diocese or his Commissary, or
(2) a Clergyman of the Church of Rome solemnizing a marriage between the hours of seven in the evening and six in the morning, when he has received a general or special licence in that behalf from the Roman Catholic Bishop of the Diocese or Vicariate in which such marriage is so solemnized, or from such person as the same Bishop has authorized to grant such licence, [or
(3) a Clergyman of the Church of Scotland solemnizing a marriage according to the rules, rites, ceremonies and customs of the Church of Scotland].

11. Place for solemnizing marriage.-No Clergyman of the Church of England shall solemnize a marriage in any place other than a Church [where worship is generally held according to the forms of the Church of England], unless there is no [such] church within five miles distance by the shortest road from such place, or
unless he has received a special licence authorizing him to do so under the hand and seal of the Anglican Bishop of the Diocese or his Commissary.

Fee for special licence.- For such special licence, the Registrar of the Diocese may charge such additional fee as the said Bishop from time to time authorizes.


PART III
Marriages Solemnized By Ministers Of Religion Licensed Under This Act

12. Notice of intended marriage.- Whenever a marriage is intended to be solemnized by a Minister of Religion licensed to solemnize marriages under this Act
one of the persons intending marriage shall give notice in writing according to the form contained in the First Schedule hereto annexed, or to the like effect, to the Minister of Religion whom he or she desires to solemnize the marriage, and shall state therein
(a) the name and surname, and the profession or condition, of each of the persons intending marriage,
(b) the dwelling place of each of them,
(c) the time during which each has dwelt there, and
(d) the church or private dwelling in which the marriage is to be solemnized;
Provided that, if either of such persons has dwelt in the place mentioned in the notice during more than one month, it may be stated therein that he or she has dwelt there one month and upwards.

13. Publication of such notice.- If the persons intending marriage desire it to be solemnized in a particular church, and if the Minister of Religion to whom such notice has been delivered to be entitled to officiate therein, he shall cause the notice to be affixed in some conspicuous part of such church.
Return or transfer of notice.- But if he is not entitled to officiate as a Minister in such church, he shall, at his opinion, either return the notice to the person who delivered it to him, or deliver it to some other Minister entitled to officiate therein, who shall thereupon cause the notice to be affixed as aforesaid.

14. Notice of intended marriage in private dwelling.- If it be intended that the marriage shall be solemnized in a private dwelling, the Minister of Religion, on receiving the notice prescribed in Section 12, shall forward it to the Marriage Registrar of the district, who shall affix the same to some conspicuous place in his own office.

15. Sending copy of notice to Marriage Registrar when one party is a minor.- When one of the persons intending marriage is a minor, every Minister receiving such notice shall, unless within twenty-four hours after its receipt he returns the same under the provisions of Section 13, send by the post or otherwise a copy of such notice to the Marriage Registrar of the district, or, if there be more than one Registrar of such district, to the Senior Marriage Registrar.

16. Procedure on receipt of notice.- The Marriage Registrar or Senior Marriage Registrar, as the case may be, on receiving any such notice, shall affix it to some conspicuous place in his own office, and the latter shall further cause a copy of the said notice to be sent to each of the other Marriage Registrars in the same district, who shall likewise publish the same in the manner above directed.

17. Issue of certificate of notice given and declaration made.- Any Minister of Religion consenting or intending to solemnize and such marriage as aforesaid, shall, on being required so to do by or on behalf of the person by whom the notice was given, and upon one of the persons intending marriage making the declaration hereinafter required, issue under his hand a certificate of such notice having been given and of such declaration having been made.
Provided-
(1) that no such certificate shall be issued until the expiration of four days after the date of the receipt of the notice by such Minister;
(2) that no lawful impediment be shown to his satisfaction why such certificate should not issue; and
(3) that the issue of such certificate has not been forbidden, in manner hereinafter mentioned, by any person authorized in that behalf.

18. Declaration before issue of certificate.- The certificate mentioned in section 17 shall not be issued and until one of the persons intending marriage has appeared personally before the Minister and made a solemn declaration
(a) that he or she believes that there is not any impediment of kindred or affinity or other lawful hindrance, to the said marriage.
(b) that the consent or consents required by law has or have been obtained thereto, or that there is no person resident in India having authority to give such consent, as the case may be.

19. Consent of father, or guardian, or mother.- The father, if living, of any minor, or, if the father be dead, the guardian of the person of such minor, and, in case there be no such guardian, then the mother of such minor, may give consent to the minor’s marriage, and such consent is hereby required for the same marriage, unless no person authorized to give such consent be resident in India.

20. Power to prohibit by notice Issue of certificate.- Every person whose consent to a marriage is required under section 19 is hereby authorized to prohibit the issue of the certificate by any Minister, at any time before the issue of the same, by notice in writing to such Minister, subscribed by the person so authorized with his or her name and place of abode and position with respect to either of the persons intending marriage, by reason of which he or she is so authorized as aforesaid.

21. Procedure on receipt of notice.-If any such notice be received by such Minister, he shall not issue his certificate and shall not solemnize the said marriage until he has examined into the matter of the said prohibition, and is satisfied that the person prohibiting the marriage has no lawful authority for such prohibition, or until the said notice is withdrawn by the person who gave it.

22. Issue of certificate in case of minority.- When either of the persons intending marriage is a minor, and the Minister is not satisfied that the consent of the person whose consent to such marriage is required by section 19 has been obtained, such Minister shall not issue such certificate until the expiration of fourteen days after the receipt by him of the notice of marriage.

23. Issue of certificate to [Indian] Christians.- When any [Indian] Christian about to be married takes a notice of marriage to a Minister of Religion, or applies for a certificate from such Minister under section 17, such Minister shall, before issuing the certificate, ascertain whether such [Indian] Christian is cognizant of the purport and effect of the said notice or certificate, as the case may be, and, if not, shall translate or cause to be translated the notice or certificate to such [Indian] Christian into some language which he understands.
24. Form of certificate.- The certificate to be issued by such Minister shall be in the form contained in the second schedule thereto annexed, or to the like effect.
25. Solemnization of marriage.- After the issue of the certificate by the Minister, marriage may be solemnized between the persons therein described according to such form or ceremony as the Minister thinks fit to adopt:
Provided that the marriage be solemnized in the presence of at least two witnesses besides the Minister.
26. Certificate void if marriage not solemnized within two months.- Whenever a marriage is not solemnized within two months after the date of the certificate issued by such Minister as aforesaid, such certificate and all proceedings (if any) thereon shall be void, and no person shall proceed to solemnize the said marriage until new notice has been given, and a certificate thereof issued in manner aforesaid.


PART IV
Registration Of Marriages Solemnized By Ministers Of Religion

27. Marriages when to be registered.- All marriages hereafter solemnized in [India] between persons one or both of whom professes or profess the Christian religion, except marriages solemnized under Part V or Part VI of this Act, shall be registered in manner hereinafter prescribed.

28. Registration of marriages solemnized by Clergymen of Church of England.-Every Clergyman of the Church of England shall keep a register of marriages and shall register therein, according to the tabular form set forth in the Third Schedule hereto annexed, every marriage which he solemnizes under this Act.

29. Quarterly returns toArchdeaconry.- Every Clergyman of the Church of England shall send four times in every year returns in duplicate, authenticated by his signature, of the entries in the register of marriages solemnized at any place where he has any spiritual charge, to the Register of the Archdeaconry to which he is subject, or within the limits of which such place is situate.
Contents of returns.- Such quarterly returns shall contain all the entries of marriages contained in the said register from the first day of January to the thirty-first day of March, from the first day of April to the thirtieth day of June, from the first day of July to the thirtieth day of September, and from the first day of October to the thirty-first day of December, of each year respectively and shall be sent by such Clergyman within two weeks from the expiration of each of the quarters above specified.
The said Registrar upon receiving the said returns shall send one copy thereof to the [Registrar-General of Births, Deaths and Marriages].
30. Registration and returns of marriages solemnized by Clergymen of Church of Rome.- Every marriage solemnised by a Clergyman of the Church of Rome shall be registered by the person and according to the form directed in that behalf by the Roman Catholic Bishop of the Diocese or Vicariate in which such marriage is solemnized, and such person shall forward quarterly to the [Registrar-General of Births, Deaths and Marriages] returns of the entries of all marriages registered by him during the three months next preceding.
31. Registration and returns of marriages solemnized by Clergymen of Church of Scotland.- Every Clergyman of the Church of Scotland shall keep a register of marriages, and shall register therein, according to the tabular form set forth in the Third Schedule hereto annexed, every marriage which he solemnizes under this Act, and shall forward quarterly to the [Registrar-General of Births, Deaths and Marriages], through the Senior Chaplain of the Church of Scotland, returns, similar to those prescribed in Section 29, of all such marriages.
32. Certain marriages to be registered in duplicate.- Every marriage solemnized by any person who has received episcopal ordination, but who is not a Clergyman of the Church of England, or of the Church of Rome, or by any Minister of Religion licensed under this Act to solemnize marriages, shall immediately after the solemnization thereof, be registered in duplicate by the person solemnizing the same; (that is to say) in a marriage register book to be kept by him for that purpose, according to the form contained in the fourth schedule hereto annexed, and also in a certificate attached to the marriage-register book as a counterfoil.
33. Entries of such marriages to be signed and attested.- The entry of such marriage in both the certificate and marriage-register book shall be signed by the person solemnizing the marriage, and also by the persons married, and shall be attested by two credible witnesses, other than the person solemnizing the marriage, present at its solemnization.
Every such entry shall be made in order from the beginning to the erd of the book, and the number of the certificate shall correspond with that of the entry in the marriage register book.
34. Certificate to be forwarded to Marriage Registrar, copied and sent to RegistrarGeneral.- The person solemnizing the marriage shall forthwith separate the certificate from the marriage register book and send it, within one month from the time of the solemnization, to the Marriage Registrar of the District in which the marriage was solemnized, or, if there be more Marriage Registrar than one, to the Senior Marriage Registrar, who shall cause such certificate to be copied into a book to be kept by him for that purpose, and shall send all the certificates which he has received during the month, with such number and signature or initials added thereto as are hereinafter required, to the [Registrar-General of Births, Deaths and Marriages.]
35. Copies of certificates to be entered and numbered.- Such copies shall be entered in order from the beginning to the end of the said book, and shall bear both the number of the certificate as copied, and also a number to be entered by the Marriage Registrar, indicating the number of the entry of the said copy in the said book, according to the order in which he receives each certificate.
36. Registrar to add number of entry to certificate, and send to Registrar-General.- The Marriage Registrar shall also add such last-mentioned number of the entry of the copy in the book to the certificate, with his signature or initials, and shall, at the end of every month, send the same to the [Registrar-General of Births, Deaths and Marriages].
37. Registration of marriages between Indian Christians by persons referred to in clauses (1), (2) and (3) of section 5.- When any marriage between [Indian] Christians is solemnized [by any such person, Clergyman or Minister of Religion as is referred to in clause (1), clause (2) or clause (3) of section 5], the person solemnizing the same shall, instead of proceeding in the manner provided by sections 28 to 36, both inclusive, register the marriage in a separate register-book, and shall keep it safely until it is filled, or, if he leaves the district in which he solemnized the marriage before the said book is filled, shall make over the same to the person succeeding to his duties in the said district.
Custody and disposal of register-book.- Whoever has the control of the book at the time when it is filled, shall send it to the Marriage Registrar of the District, or, if there be more Marriage Registrars than one, to the Senior Marriage Registrar, who shall send it to the [Registrar-General of Births, Deaths and Marriages] to be kept by him with the records of his office.


PART V
Marriages Solemnized By, Or In The Presence Of, A Marriage Registrar

38. Notice of intended marriage before Marriage Registrar.- When a marriage is intended to be solemnized by, or in the presence of, a Marriage Registrar, one of the parties to such marriage shall give notice in writing, in the form contained in the First Schedule hereto annexed, or to the like effect, to any Marriage Registrar of the District within which the parties have dwelt;
or, if the parties dwell in different districts, shall give the like notice to a Marriage Registrar of each district, and shall state therein the name and surname, and the profession or condition, of each of the parties intending marriage, the dwelling-place of each of them, the time during which each has dwelt therein and the place at which the marriage is to be solemnized
Provided that, if either party has dwelt in the place stated in the notice for more than one month, it may be stated therein that he or she has dwelt there one month and upwards.
39. Publication of notice.- Every Marriage Registrar shall, on receiving any such notice, cause a copy thereof to be affixed in some conspicuous place in his office.
When one of the parties intending marriage is a minor, every Marriage Registrar shall, within twenty-four hours after the receipt by him of the notice of such marriage, send, by post or otherwise, a copy of such notice to each of the other Marriage Registrars (if any) in the same district, who shall likewise affix the copy in some conspicuous place in his own office.
40. Notice to be Sled and copy entered in Marriage Notice Book.- The Marriage Registrar shall file all such notices and keep them with the records of his office, and shall also forthwith enter a true copy of all such notices in a book to be furnished to him for that purpose by the [State] Government and to be called the “Marriage Notice Book”, and the Marriage Notice Book shall be open at all reasonable times, without fee, to all persons desirous of inspecting the same.
41. Certificate of notice given and oath made.- If the party by whom the notice was given requests the Marriage Registrar to issue the certificate next hereinafter mentioned, and if one of the parties intending marriage has made oath as hereinafter required, the Marriage Registrar shall issue under his hand a certificate of such notice having been given and of such oath having been made:
Provided-
that no lawful impediment he shown to his satisfaction why such certificate should not issue;
that the issue of such certificate has not been forbidden, in manner hereinafter mentioned, by any person authorized in that behalf by this Act;
that four days after the receipt of the notice have expired; and further, that where, by such oath, it appears that one of the parties intending marriage is a minor, fourteen days after the entry of such notice have expired.
42. Oath before issue of certificate.- The certificate mentioned in section 41 shall not be issued by any Marriage Registrar, until one of the parties intending marriage appears personally before such Marriage Registrar, and makes oath-
(a) that he or she believes that there is not any impediment of kindred or affinity, or other lawful hindrance, to the said marriage, and
(b) that both the parties have, or (where they have dwelt in the districts of different Marriage Registrars) that the party making such oath has, had their, his or her usual place of abode within the district of such Marriage Registrar, and, where either or each of the parties is a minor,
(c) that the consent or consents to such marriage required by law has or have been obtained thereto, or that there is no person resident in India authorized to give such consent, as the case may be.
43. Petition to High Court to order certificate In less than fourteen days.- When one of the parties intending marriage is a minor, and both such parties are at the time residents in any of the towns of Calcutta, Madras and Bombay, and are desirous of being married in less than fourteen days after the entry of such notice as aforesaid, they may apply by petition to it Judge of the High Court, for an order upon the Marriage Registrar to whom the notice of marriage has been given, directing him to issue his certificate before the expiration of the said fourteen days required by section 41.
Order on petition.- And, on sufficient cause being shown, the said Judge may, in his discretion, make an order upon such Marriage Registrar, directing him to issue his certificate at any time to be mentioned in the said order before the expiration of the fourteen days so required.
And the said Marriage Registrar, on receipt of the said order, shall issue his certificate in accordance therewith.
44. Consent of father or guardian.- The provisions of section 19 apply to every marriage under this Part, either of the parties to which is a minor;
Protest against issue of certificate.- And any person whose consent to such marriage would be required thereunder may enter a protest against the issue, of the Marriage Registrar’s certificate, by writing, at any time before the issue of such certificate, the word “forbidden” opposite to the entry of the notice of such intended marriage in the Marriage Notice Book, and by subscribing thereto his or her name and place of abode, and his or her position with respect to either of the parties, by reason of which he or she is so authorized.
Effect of protest.- When such protest has been entered, no certificate shall issue until the Marriage Registrar has examined into matter of the protest, and is satisfied that it ought not to obstruct the issue of the certificate for the said marriage, or until the protest be wiiihdrawn by the person who entered it.
45. Petition where person whose consent is necessary is insane.- If any person whose consent is necessary to any marriage under this Part is of unsound mind.
or unjustly withholds consent;or if any such person (other than the father) without just cause withholds his consent to the marriage, the parties intending marriage may apply by petition, where the person whose consent is necessary is resident within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or if he is not resident within any of the said towns. then to the District Judge :
Procedure on petition.- And the said Judge of the High Court, or District Judge, as the case may be, may examine the allegations of the petition in a summary way :
And, if upon examination such marriage appears proper, such Judge of the High Court or District Judge, as the case may be, shall declare the marriage to be a proper marriage.
Such declaration shall be as effectual as if the person whose consent was needed had consented to the marriage;
and if he has forbidden the issue of the Marriage Registrar’s certificate, such certificate shall be issued and the like proceedings may be had under this Part in relation to the marriage as if the issue of such certificate had not been forbidden.
46. Petition when Marriage Registrar refuses certificate.- Whenever a Marriage Registrar refuses to issue a certificate under this Part, either of the parties intending marriage may apply by petition, where the district of such Registrar is within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or if such district is not within any of the said towns, then to the District Judge.
Procedure on petition.- The said Judge of the High Court, or District Judge, as the case may be, may examine the allegations of the petition in a summary way, and shall decide thereon.
The decision of such Judge of the High Court or District Judge, as the case may be, shall be final, and the Marriage Registrar to whom the application for the issue of a certificate was originally made shall proceed in accordance therewith.
47. Petition when Marriage Registrar in Indian State refuses certificate.- [Omitted by A.L.O., 1950.]
48. Petition when Registrar doubts authority of person forbidding.- Whenever it Marriage Registrar, acting under the provisions of section 44, is not satisfied that the person forbidding the issue of the certificate is authorized by law so to do, the said Marriage Registrar shall apply by petition, where his district is within any of the towns of Calcutta, Madras and Bombay, to a Judge of the High Court, or, if such district be not within any of the said towns, then to the District Judge.
Procedure on petition.- The said petition shall state all the circumstances of the case, and pray for the order and direction of the Court concerning the same, and the said Judge of the High Court or District Judge, as the case may be, shall examine into the allegations of the petition and the circumstances of the case;
and if, upon such examination, it appears, that the person forbidding the issue of such certificate is not authorized by law so to do, such Judge of the High Court or District Judge, as the case may be, shall declare that the person forbidding the issue of such certificate is not authorized as aforesaid, and thereupon such certificate shall be issued, and the like proceedings may be had in relation to such marriage as if the issue had not been forbidden.
[* * * * * * * * * * * * * *]
49. Liability for frivolous protest against issue of certificate.- Every person entering a protest with the Marriage Registrar, under this Part against the issue of any certificate, on grounds which such Marriage Registrar, under section 44, or a Judge of the High Court or the District Judge, under section 45 or 46, declares to be frivolous and such as ought not to obstruct the issue of the certificate, shall be liable for the costs of all proceedings in relation thereto and for damages, to be recovered by suit by the person against whose marriage such protest was entered.
50. Form of certificate.- The certificate to be issued by the Marriage Registrar under the provisions of section 41 shall be in the form contained in the Second Schedule to this Act annexed or to the like effect, and the [State] Government shall furnish to every Marriage Registrar a sufficient number of forms of certificate.
51. Solemnization of marriage after issue of certificate.-After the issue of the certificate of the Marriage Registrar, or, where notice is required to be given under this Act to the Marriage Registrars for different districts, after the issue of the certificates of the Marriage Registrars for such districts, marriage may, if there be no lawful impediment to the marriage of the parties described in such certificate or certificates, be solemnized between them, according to such form and ceremony as they think fit to adopt.
But every such marriage shall be solemnized in the presence of some Marriage Registrar (to whom shall be delivered such certificate or certificates as aforesaid), and of two or more credible witnesses besides the Marriage Registrar.
And in some part of the ceremony each of the parties shall declare as follows, or to the like effect:
“I do solemnly declare that I know not of any lawful impediment why 1, A. B., may not be joined in matrimony to C.D.
And each of the parties shall say to the other as follows or to the like effect “I call upon these persons here present to witness that 1, A.B., do take thee, C.D., to be my lawful wedded wife or husband.”

52. When marriage not had within two months after notice, new notice required.- Whenever a marriage is not solemnized within two months after it copy of the notice has been entered by the Marriage Registrar. as required by section 40, the notice and the certificate, if any, issued thereupon, and all other proceedings thereupon, shall be void;
and no person shall proceed to solemenize the marriage, nor shall any Marriage Registrar enter the same, until new notice has been given, and entry made, and certificate thereof given, at the time and in the manner aforesaid.
53. Marriage Registrar may ask for particulars to be registered.- A Marriage Registrar before whom any marriage is solemnized under this Part may ask of the persons to be married the several particulars required to be registered touching such marriage.
54. Registration of marriages solemnized under Part V.- After the solemnization of any marriage under this Part, the Marriage Registrar present at such solemnization shall forthwith register the marriage in duplicate; that is to say, in a marriage-register book, according to the form of fourth schedule hereto annexed, and also in a certificate attached to the marriage register book as a counterfoil.
The entry of such marriage in both the certificate and the marriage-register book shall be signed by the person by or before whom the marriage has been solemnized, if there be any such person, and by the Marriage Registrar present at such marriage, whether or not it is solemnized by him, and also by the parties married, and attested by two credible witnesses other than the Marriage Registrar and person solemnizing the marriage.
Every such entry shall be made in order from the beginning to the end of the book, and the number of the certificate shall correspond with that of the entry in the marriage-register book.
55. Certificates to be sent monthly to Registrar General.- The Marriage Registrar shall forthwith separate the certificate from the marriage-register book and send it, at the end of every month, to the [Registrar General of Births, Deaths and Marriages].
Custody of register-book.The Marriage Registrar shall keep safely the said registerbook until it is filled, and shall then send it to the [Registrar General of Births, Deaths and Marriages], to be kept by him with the records of his office.
56. Officers to whom Registrars in Indian States shall send certificates.- [Omitted by A. L.O., 1950],
57. Registrars to ascertain that notice and certificate are understood by Indian Christians.- When any [Indian] Christian about to be married gives a notice of marriage, or applies for a certificate from a Marriage Registrar, such Marriage Registrar shall ascertain whether the said [Indian] Christian understands the English language, and, if he does not, the Marriage Registrar shall translate, or cause to be translated, such notice or certificate, or both of theta. as the case may be, to such [Indian] Christian into a language which he understands;
or to the Marriage Registrar shall otherwise ascertain whether the [Indian] Christian is cognizant of the purport and effect of the said notice and certificate.
58. Indian Christians to be made to understand declarations.- When any [Indian] Christian is married under the provisions of this Part, the person solemnizing the marriage shall ascertain whether such [Indian] Christian understands the English language, and, if he does not, the person solemnizing the marriage shall, at the time of the solemnization, translate, or cause to be translated, to such [Indian] Christian, into a language which he understands, the declarations made at such marriage in accordance with the provisions of this Act.
59. Registration of marriages between Indian Christians.- The registration of marriages between [Indian] Christians under this Part shall be made in conformity with the rules laid down in section 37 (so far as they are applicable), and not otherwise.


PART VI
Marriage Of Indian Christians

60. On what conditions marriages of Indian Christians may be certified.- Every marriage between [Indian] Christians applying for a certificate, shall, without the preliminary notice required under Part III, be certified under this Part, if the following conditions be fulfilled, and not otherwise :
(1) the age of the man intending to be married [shall not be under twenty-one years and the age of the woman intending to he married [shall not be under eighteen years;
(2) neither of the persons intending to be married shall have a wife or husband still living;
(3) in the presence of a person licensed under section 9, and of at least two credible witnesses other than such person, each of the parties shall say to the other
“I call upon these persons here present to witness that I, A.B., in the presence of Almighty God, and in the name of our Lord Jesus Christ, do take thee C.D., to be my lawful wedded wife or husband” or words to the like effect:

61. Grant of certificate.- When, in respect to any marriage solemnized under this Part, the conditions prescribed in section 60 have been fulfilled, the person licensed as aforesaid, in whose presence the said declaration has been made, shall, on the application of either of the parties to such marriage, and on the payment of a fee of four annas, grant a certificate of the marriage.
The certificate shall be signed by such licensed person, and shall be received in any suit touching the validity of such marriage as conclusive proof of its having been performed.

62. Keeping of register-book and deposit of extracts therefrom with Registrar General.- (1) Every person licensed under section 9 shall keep in English, or in the vernacular language in ordinary use in the district or State in which the marriage was solemnized, and in such form as the [State] Government by which he was licensed may from time to time prescribe, a register-book of all marriages solemnized under this Part in his presence, and shall deposit in the office of the Registrar General of Births, Deaths and Marriages for the territories under the administration of the said [State] Government in such form and at such intervals as that Government may prescribe, true and duly authenticated extracts from his register-book of all entries made therein since the last of those intervals.

63. Searches In register-book and copies of entries.- Every person licensed under this Act to grant certificates of marriage, and keeping a marriage register-book under section 62, shall, at all reasonable times, allow search to be made in such book and shall, on payment of the proper fee, give a copy, certified under his hand, or any entry therein.

64. Books in which marriages of Indian Christians under Part I or Part III are registered.- The provisions of sections 62 and 63, as to the form of the register-book, depositing extracts therefrom, allowing searches thereof, and giving copies of the entries therein, shall mutatis mutandis, apply to the books kept under section 37.

65. Part VI not to apply to Roman Catholics.- This Part of this Act, except so much of sections 62 and 63 as are referred to in section 64, shall not apply to marriages between Roman Catholics.
Saving of certain marriages.- But nothing herein contained shall invalidate any marriage celebrated between Roman Catholics under the provisions of Part V of Act No. 25 of 1964, previous to the twenty-third day of February, 1865.


PART VII
Penalties

[66. False oath, declaration notice or certificate for procuring marriage.- Who ever, for the purpose of procuring a marriage or licence of marriage, intentionally,
(a) where an oath or declaration is required by this Act, or by any rule or custom of a Church according to the rites and ceremonies of which a marriage is intended to be solemnized, such Church being the Church of England or of Scotland or of Rotne, makes a false oath or declaration, or,
(b) where a notice or certificate is required by this Act, signs a false notice or certificate, shall be deemed to have committed the offence punishable under section 193 of the Indian Penal Code with imprisonment of either description for a term which may extend to three years and, at the discretion of the Court, with fine.]
67. Forbidding, by false personation, issue of certificate by Marriage Registrar.- Whoever forbids the issue, by a Marriage Registrar, of a certificate, by falsely representing himself to be a person whose consent to the marriage is required by law, knowing or believing such representation to be false, or not having reason to believe it to be true, shall be deemed guilty of the offence described in section 205 of the Indian Penal Code.
[68. Solemnizing marriage without due authority.- Whoever, not being authorized by section 5 of this Act to solemnize marriages, solemnizes or professes to solemnize in the absence of a Marriage Registrar or professes to solemnize in the absence of a Marriage Registrar of the district in which the ceremony takes place, a marriage, between persons one or both of whom is or are a Christian or Christians, shall be punished with imprisonment which may extend to ten years, or (in lieu of a sentence of imprisonment for seven years or upwards) with transportation for a term of not less than seven years, and not exceeding ten years.
[* * *]
and shall also be liable to fine]
69. Solemnizing marriage out of proper time, without witnesses.- Whoever knowingly and wilfully solemnizes a marriage between persons one or both of whom is or are a Christian or Christians, at any time other than between the hours of six in morning and seven in the evening, or in the absence of at least two credible witnesses other than the person solemnizing the marriage, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.
Savings of marriages solemnized under special licence.- This section does not apply to marriages solemnized under special licences granted by the Anglican Bishop of the Diocese or by his Commissary, nor to marriages performed between the hours of seven in the evening and six in the morning by a Clergyman of the Church of Rome, when he has received the general or special licence in that behalf mentioned in Section 10.
[Nor does this section apply to marriages solemnized by a Clergyman of the Church of Scotland according to the rules, rites, ceremonies and customs of the Church of Scotland.]
70. Solemnizing without notice or within fourteen days after notice, marriage with minors.- Any Minister of Religion licensed to solemnize marriages under this Act, who without a notice in writing, or, when one of the parties to the marriage is a minor and the required consent of the parents or guardians to such marriage has not been obtained, within fourteen days after the receipt by him of notice of such marriage, knowingly and wilfully solemnizes a marriage under Part III, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.
71. Issuing certificate, or marrying without publication of notice.- A marriage Registrar under this Act, who commits any of the following offences:
(1) knowingly and wilfully issues any certificate for marriage, or solemnizes any marriage, without publishing the notice of such marriage as directed by this Act;
Marrying after expiry of notice.-[(2) after expiration of two months after the copy of the notice has been entered as required by section 40 in respect of any marriage, solemnizes such marriage;]
Solemnizing marriage with minor within fourteen days, without authority of Court or without sending copy of notice.- (3) solemnizes, without an order of a competent Court authorizing him to do so, any marriage, when one of the parties is a minor, before the expiration of fourteen days after the receipt of the notice of such marriage, or without sending by the post or otherwise, a copy of such notice to the Senior Marriage Registrar of the district if there be more Marriage Registrars of the district than one, and if he himself be not the Senior Marriage Registrar;
Issuing certificate against authorised prohibition.- (4) issues any certificate the issue of which has been prohibited, as in this Act provided, by any person authorised to prohibit the issue thereof, shall be punished with imprisonment fora term which may extend to five years, and shalt also be liable to tine.
72. Issuing certificate after expiry of notice, or, in case of minor, within fourteen days after notice, or against authorised prohibition.- Any Marriage Registrar knowingly and wilfully issuing any certificate for marriage after the expiration of [two months] after the notice has been entered by him as aforesaid, or knowingly and wilfully issuing, without the order of a competent Court authorizing him so to do, any certificate for marriage, where one of the parties intending marriage is a minor, before the expiration of fourteen days after the entry of such notice, or any certificate the issue of which has been forbidden as aforesaid by any person authorised in this behalf, shall be deemed to have committed an offence under Section 166 of the Indian Penal Code.
73. Persons authorised to solemnize marriage (other than clergy of Churches of England, Scotland or Rome).- Whoever, being authorised under this Act to solemnize a marriage.
and not being a Clergyman of the Church of England solemnizing as marriage after due publication of banns, or under a licence from the Anglican Bishop of the Diocese or a Surrogate duly authorised in that behalf, or, not being a Clergyman of the Church of Scotland, solemnizing as marriage according to the rules, rites, ceremonies and customs of that Church, or, not being a Clergyman of the Church of Rome, solemnizing a marriage according to the rites, rules, ceremonies and customs of that Church,
issuing certificate, or marrying, without publishing notice, or after expiry of certificate.- knowingly and wilfully issues any certificate for marriage under this Act, or solemnizes any marriage between such persons as aforesaid without publishing or causing to be affixed, the notice of such marriage as directed in Part III of this Act, or after the expiration of two months after the certificate has been issued by him:
issuing certificate for, or solemnizing marriage with minor, within fourteen days after notice.- or knowingly and wilfully issues any certificate for marriage or solemnizes a marriage between such persons when one of the persons intending marriage is a minor, before the expiration of fourteen days after the receipt of notice of such marriage, or without sending, by the post or otherwise, a copy of such notice to the Marriage Registrar or. if there be more Marriage Registrars than one, to the Senior Marriage Registrar of the district;
issuing certificate authorizedly forbidden.- knowingly and wilfully issues any certificate the issue of which has been forbidden, under this Act, by any person authorised to forbid the issue;
solemnizing marriage authorizedly forbidden.- or knowingly and wilfully solemnizes any marriage forbidden by any person authorised to forbid the same;
shall be punished with imprisonment for a term which may extend to four years, and shall also be liable to fine.
74. Unlicensed person granting certificate pretending to be licensed.-Whoever, not being licensed to grant a certificate of marriage under Part VI of this Act; grants such certifi sate intending thereby to make it appear that he is so licensed, shall be punished with imprisonment for a term which may extend to five years, and shall also be liable to line.
[Whoever, being licensed to grant certificates of marriage under Part VI of this Act, without just cause refuses, or wilfully neglects or omits, to perform any of the duties imposed upon him by that Part shall be punished, with tine which may extend to one hundred rupees.]
75. Destroying or falsifying register-books.- Whoever, by himself or another, wilfully destroys or injures any register-book or the counterfoil certificates thereof, or any part thereof, or any authenticated extract therefrom, or falsely makes or counterfeits any part of such register-book or counterfoil certificates.
or wilfully inserts any false entry in any such register-book or counterfoil certificate or authenticated extract, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to tine.
76. Limitation of prosecutions under Act.- The prosecution for every offence punishable under this Act shall be commenced within two years the offence is committed.


PART VIII
Miscellaneous

77. What matters need not be proved in respect of marriage in accordance with Act.- Whenever any marriage has been solemnized in accordance with the provisions of sections 4 and 5, it shall not be void merely on account of any irregularity in respect of the following matters, namely:
(1) any statement made in regard to the dwelling of the persons married, or to the consent of any person whose consent to such marriage is required by law;
(2) the notice of the marriage;
(3) the certificate or translation thereof;
(4) the time and place at which the marriage has been solemnized;
(5) the registration of the marriage.
78. Corrections of error.- Every person charged with the duty of registering any marriage, who discovers any error in the form or substance of any such entry, may, within one month next after the discovery of such error, in the presence of the persons married, or in case of their death or absence, in the presence of two other credible witnesses, correct the error by entry in the margin, without any alteration of the original entry, and shall sign the marginal entry, and add thereto the date of such correction, and such person shall make the like marginal entry in the certificate thereof.
And every entry made under this section shall be attested by the witnesses in whose presence it was made.
And in case such certificate has been already sent to the [Registrar General of Births, Deaths and Marriages], such person shall make and send in like manner a separate certificate of the original erroneous entry, and of the marginal correction therein made.
79. Searches and copies of entries.- Every person solemnizing a marriage under this Act, are hereby required to register the same, and every Marriage Registrar or [Registrar General of Births, Deaths and Marriage] having the custody for the time being of any register of marriages, or of any certificate, or duplicate or copies of certificate, under this Act.
shall on payment of the proper fees, at all reasonable times, allow searches to be made in such register, or for such certificate, or duplicate or copies anL give a copy under his hand of any entry in the same.
80. Certified copy of entry in marriage-register, etc. to be evidence.- Every certified copy, purporting to be signed by the person entrusted under this Act with the custody of any marriage-register or certificate, or duplicate required to be kept or delivered under this Act, of any entry of a marriage in such register, or of any such certificate or duplicate, shall he received as evidence of the marriage purporting to be so entered, or of the facts purporting to be so certified therein, without further proof of such register or certificate, or duplicate or of any entry therein, respectively, or of such copy.
[81. Certificates of certain marriages to be sent to Central Government.- The Registrar General of Births, Deaths and Marriages [* * *] shall, at the end of every quarter in each year, select from the certificates of marriages forwarded to [him], during such quarter, the certificates of the [the Government by whom he was appointed] may desire the evidence shall be transmitted to England, and shall send the same certificates, signed by [him], to the [Central Government].]
82. State Government to prescribe fees.- Fees shall be chargeable under this Act for receiving and publishing notices of marriages;
issuing [Certificates for marriage] by Marriage Registrars, and registering marriages by the same;
entering protests against, or prohibition of, the issue of [Certificates for marriage] by the said Registrars, searching register-books or certificates, or duplicates of copies thereof;
giving copies of entries in the same under sections 63 and 79.
The [State] Government shall fix the amount of such fees respectively, and may from time to time vary or remit them either generally or in special cases, as to it may seem fit.
83. Power to make rules.-[(1)] The [State] Government [may,] by notification in the official Gazette, make rules in regard to the disposal of the fees mentioned in section 82, the supply of register-books, and the preparation and submission of returns of marriages solemnized under this Act.
[(2) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before the State legislature.]
84. Power to prescribe fees and rules for Indian States.-[Omitted by A.L.O., 1950.]
85. Power to declare who shall be District Judge.- The [State] Government may, by notification in the Official Gazette, declare who shall in any place to which this Act applies, be deemed to be the District Judge.
86. Powers and functions exercisable as regards Indian State.- [Omitted by A.L.O., 1950.]
87. Saving of Consular marriages.- Nothing in this Act applies to any marriage performed by any Minister, Consul, or Consular Agent between subjects of the State which he represents and according to the laws of such State.
88. Non-validation of marriages within prohibited degrees.- Nothing in this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into.

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Maintenance under Hindu Law

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CHAPTER III 
Maintenance  
The Hindu Adoptions And Maintenance Act, 1956        

18. Maintenance of wife.(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

19. Maintenance of widowed daughter-in-law.

(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law:Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance

(a) from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.

20. Maintenance of children and aged parents .(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Explanation .In this section parent includes a childless step-mother.

21. Dependants defined.For the purposes of this Chapter dependants mean the following relatives of the deceased:

(i) his or her father;

(ii) his or her mother;

(iii) his widow, so long as she does not remarry;

(iv) his or her son or the son of his predeceased son or the son of a pre-deceased son of his predeceased son, so long as he is a minor: provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his fathers or mothers estate, and in the case of a great-grandson, from the estate of his father or mother or fathers father or fathers mother;

(v) his or her unmarried daughter, or the unmarried daughter of his pre-deceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried: provided and to the extent that she is unable to obtain maintenance, in the case of a grand-daughter from her fathers or mothers estate and in the case of a great-grand-daughter from the estate of her father or mother or fathers father or fathers mother;

(vi) his widowed daughter: provided and to the extent that she is unable to obtain maintenance

(a) from the estate of her husband; or

(b) from her son or daughter, if any, or his or her estate; or

(c) from her father-in-law or his father or the estate of either of them;

(vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry: provided and to the extent that she is unable to obtain maintenance from her husbands estate, or from her son or daughter, if any, or his or her estate; or in the case of a grandsons widow, also from her father-in-laws estate;

(viii) his or her minor illegitimate son, so long as he remains a minor;

(ix) his or her illegitimate daughter, so long as she remains unmarried.

22. Maintenance of dependants.

(1) Subject to the provisions of sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.

(2) Where a dependant has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.

(3) The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her.

(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependant shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.

23. Amount of maintenance.(1) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the considerations set out in sub-section (2) or sub-section (3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether the claimant is justified in doing so;

(d) the value of the claimants property and any income derived from such property, or from the claimants own earnings or from any other source;

(e) the number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to

(a) the net value of the estate of the deceased after providing for the payment of his debts;

(b) the provision, if any, made under a will of the deceased in respect of the dependant;

(c) the degree of relationship between the two;

(d) the reasonable wants of the dependant;

(e) the past relations between the dependant and the deceased;

(f) the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other source;

(g) the number of dependants entitled to maintenance under this Act.

24. Claimant to maintenance should be a Hindu.No person shall be entitled to claim maintenance under this Chapter if he or she has ceased to be a Hindu by conversion to another religion.

25. Amount of maintenance may be altered on change of circumstances.The amount of maintenance, whether fixed by a decree of Court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.

26. Debts to have priority.Subject to the provisions contained in section 27 debts of every description contracted or payable by the deceased shall have priority over the claims of his dependants for maintenance under this Act.

27. Maintenance when to be a charge.A dependants claim for maintenance under this Act shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of Court, by agreement between the dependant and the owner of the estate or portion, or otherwise.

28. Effect of transfer of property on right to maintenance.Where a dependant has a right to receive maintenance out of an estate and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right.

The Hindu Marriage (Validation Of Proceedings) Act, 1960

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The Hindu Marriage (Validation Of Proceedings) Act, 1960

(19 OF 1960)

[28th September, 1916]

An Act to validate certain proceedings under the Hindu Marriage Act, 1955.

Be it enacted by Parliament in the Eleventh year of the Republic of India as follows:—

1. Short title and extent .—(1) The Act may be called The Hindu Marriage (Validation of Proceedings) Act, 1960.

2. Validation of proceedings of certain Courts under Act 25 of 1955.—(1) All proceedings taken and decrees and orders passed before the commencement of the Act by any of the Courts referred to in sub-section (2), exercising or purporting to exercise jurisdiction under the Hindu Marriage Act, 1955, shall, notwithstanding any judgment, decree or order of any Court, be deemed to be as good and valid in law as if the Court exercising or purporting to exercise such jurisdiction had been a District Court within the meaning of the said Act.

(2) The Courts referred to in sub-section (1) are the following, namely:—

The Court of an Additional Judge, Additional District Judge, Joint District Judge, Assistant District Judge, Assistant Judge and any other Court, by whatever name called not being lower in rank than the Courts of a Subordinate Judge.


 

The Hindu Disposition Of Property Act, 1916

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The Hindu Disposition Of Property Act, 1916

(15 of 1916)

[28th September, 1916]

An Act to remove certain existing disabilities in respect of the power of disposition of property by Hindus for the benefit of persons not in existence at the date of such disposition.

Whereas it is expedient to remove certain existing disabilities in respect of the power of disposition of property by Hindus for the benefit of persons not in existence at the date of such disposition; It is hereby enacted as follows:

1. Short title and extent .(1) This Act may be called The Hindu Disposition of Property Act, 1916 .[(2) It extends to the whole of India except the State of Jammu and Kashmir.]

2. Dispositions for the benefit of persons not in existence.Subject to the limitations and provisions specified in this Act, no disposition of property by a Hindu, whether by transfer inter vivos or by Will, shall be invalid by reason only that any person for whose benefit it may have been made was not in existence at the date of such disposition.3. Limitations and conditions.The limitations and provisions referred to in section 2 shall be the following, namely:

(a) in respect of dispositions by transfer inter vivos, those contained in [Chapter II] of the Transfer of Property Act, 1882 (4 of 1882), and

(b) in respect of dispositions by Will, those contained in [sections 113, 114, 115 and 116 of the Indian Succession Act, 1925 (39 of 1925).]

4. Failure of prior disposition.[Repealed by the Transfer of Property (Amendment) (Supplementary) Act, 1929 (21 of 1929), section 12.]

5. Application of this Act to the Khoja community.Where the [State Government] is of opinion that the Khoja community in [the State] or any part thereof desire that the provisions of this Act should be extended to such community, [it] may, by notification in the [Official Gazette], declare that the provisions of this Act, with the substitution of the word Khojas or Khoja, as the case may be, for the word Hindus or Hindu wherever those words occur, shall apply to that community in such area as may be specified in the notification, and this Act shall thereupon have effect accordingly.


 

D. Velusamy Vs D. Patchaiammal[SC 2010 October]

KeyWords:– Maintenance-Delay-a relationship in the nature of marriage-Polimony-common law marriage⇒

Criminal Law-min

It is not for Supreme Court to legislate or amend law—Parliament has used expression “relationship in nature of marriage” and not live-in-relationship—Court in garb of interpretation cannot change language of statute.

The petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent.

AIR 2011 SC 479 : (2011) CriLJ SC 320 : JT 2010 (11) SC 325 : (2010) 11 SCALE 112 : (2010) 10 SCC 469

(SUPREME COURT OF INDIA)

D. Velusamy Appellant
Versus
D. Patchaiammal Respondent

(Before : Markandey Katju and T. S. Thakur, JJ.)

Criminal Appeal Nos. 2028-2029 of 2010 (Arising out of Special Leave Petition (Crl.) Nos. 2273-2274/2010); Decided On: 21-10-2010

Criminal Procedure Code, 1973—Sections 125 and 125(1)—Protection of Women from Domestic Violence Act, 2005—Sections 2(a), 20(1)(d), 12(2), 26(1) and 2(s).

JUDGMENT

Markandey Katju, J—Leave granted.

2. Heard learned Counsel for the appellant. None has appeared for the respondent although she has been served notice. We had earlier requested Mr. Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in the case, and we record our appreciation of Mr. Bhushan who was of considerable assistance to us.

3. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009.

4. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.

5. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her father’s house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent’s father and started living in his native place, but would visit the respondent occasionally.

6. It is alleged that the appellant herein (respondent in the petition under Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the proceeding under Section 125 Cr.P.C.) two or three years after marrying her in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent (appellant herein) is a Secondary Grade Teacher drawing a salary of ` 10000/- per month. Hence it was prayed that the respondent (appellant herein) be directed to pay ` 500/- per month as maintenance to the petitioner.

7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her father’s house.

8. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein.

9. In his counter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voter’s identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc.

10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.

11. In our opinion, since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status vis-à-vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights. And if no such declaration could have been given obviously no declaration could validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.

12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word ‘wife’ has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows:

Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

13. In Vimala (K) v. Veeraswamy (K), (1991) 2 SCC 375, a three- Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word ‘wife’ the Court held:

…the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision.

14. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya v. State of Gujarat and Ors., AIR 2005 SC 1809, this Court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of ‘wife’. The Bench held that this inadequacy in law can be amended only by the Legislature.

15. Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.

16. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act states:

2(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

Section 2(f) states :

2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

Section 2(s) states :

2(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

Section 3(a) states that an act will constitute domestic violence in case it-

3(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;” or

                                                                          (emphasis supplied)

17. The expression “economic abuse” has been defined to include :

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance.

(emphasis supplied)

18. An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).

19. Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.

20. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression ‘domestic relationship’ includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression ‘a relationship in the nature of marriage’. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.

21. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.

22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo v. Kanniammal and Anr., (2010) 5 SCC 600 (vide para 31).

23. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.

24. In USA the expression ‘palimony’ was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see ‘palimony’ on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin v. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.

25. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.

26. In Taylor v. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.

27. However, the New Jersey Supreme Court in Devaney v. L’ Esperance 195 N.J. 247 (2008) held that cohabitation is not necessary to claim palimony, rather “it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony”. A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.

28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. 29. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.

30. However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.

31. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.

32. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).

33. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(see ‘Common Law Marriage’ in Wikipedia on Google)

In our opinion a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

34. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’

35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live in relationship’. The Court in the grab of interpretation cannot change the language of the statute.

36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel ‘Anna Karenina’, Gustave Flaubert’s novel ‘Madame Bovary’ and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.

37. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.

38. Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue notice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding.

39. There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above. Appeals allowed.