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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: