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Report No. 15

Clause 26

Sub-clause (1).-The provision that it shall not be obligatory for the petitioner to cohabit with the respondent, has been framed on the lines of the Hindu Marriage Act, and the Special Marriage Act. Though a subsequent clause1 allows either party (after a decree for judicial separation) to apply for divorce, it is considered that the release from the obligation to co-habit should not extend to the respondent in the decree for separation.

Existing section 26, proviso, Indian Divorce Act refers to capacity to contract debts. This has been omitted as unnecessary.

Sub-clause (2).-Under the existing Act, the court can rescind the decree on the ground that it was obtained in the absence of the party applying for rescission and that there was reasonable cause for the alleged desertion (where desertion was a ground for decree). There is, however, some amount of confusion in the existing provision, because it mixes up the question on merits (reasonable cause) with the question of procedure (previous decree obtained in absence). Moreover, so far as absence is concerned, the normal proceedings for setting aside an ex parte decree should suffice; and so far as reasonable cause for desertion is concerned, that could have been investigated in the earlier proceedings. The only justification, it is felt, for setting aside a decree of judicial separation, would be a change in the circumstances. Hence the power has been limited to cases where-

(a) the parties desire to come together, or

(b) for any other reason the court considers it just and reasonable to rescind the decree.

Category (b) above will preserve the wide discretion of the court, found in the corresponding provision in the Hindu Marriage and the Special Marriage Act.

Compare and contrast sections 14(2) and 14(3) of the (English) Matrimonial Causes Act, 1950.

1. Clause 31.

Report on the Law of Christian Marriage and Divorce Back

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