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Report No. 15

Clause 76/

General.-This is a repeal clause.

Sub-clause (1).-Repeal of the Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940, and the Indian Divorce Act, 1945 (all U.K. Acts) have also been provided for. For reasons, see the note below, entitled "Colonial jurisdiction".

Sub-clause (2), paragraph (a).-This follows the language of section 51(2) of the Special Marriage Act.

So far as matrimonial relief under the Act is concerned, the substantive provision relating to decree of nullity, restitution, judicial separation, divorce etc., themselves make it clear how far the new Act is to apply to marriages solemnised before its commencement. Therefore, the saving provision under discussion may not be of much use in respect of matrimonial relief.

But it may be desirable to make it clear that the pre-Act marriages will be deemed to have been solemnised under the new Act, for other purposes. Apart from the general utility of such a provision, there may be specific cases where it will come handy-for example, in relation to punishment of bigamy.1

The paragraph under discussion will not, have the effect of attracting the nullity provisions of the new Act so as to affect the validity of any pre-Act marriages2.

Sub-clause (2), paragraph (b).-It is felt that pending suits and proceedings under the existing Acts regarding marriage and divorce should continue to be dealt with by the respective courts, notwithstanding the repeal of those Acts. A provision has been made accordingly. This is a departure from the course adopted in section 51(2)(b), S.M.A.

This provision will be "without prejudice to the general provisions of section 6 of the General Clauses Act, 1897."-See sub-clause (3). The provisions of section 6 of the General Clauses Act save previously acquired rights, liabilities etc., and it is considered that there would be no conflict between the specific provisions embodied in the sub-paragraph under discussion and those of the General Clauses Act.

Proceedings other than judicial proceedings e.g. notices of marriage etc. already given, do not, it is considered, need any savings provision. Parties can give fresh notices in such cases. This course had to be adopted in view of the fact that the continuance of such proceedings would create complications, particularly because the scheme in the proposed Act is, in some respects, different from that in the existing Act-e.g. (i) both parties must be Christians, (ii) both parties must sign, the notice, and so on.

Sub-Clause (3).-This follows the language of section 51(3), Special Marriage Act. Though a specific saving provision has been inserted in sub-clause (2), paragraph (a), regarding pre-Act marriages (following the Special Marriage Act), the words "without prejudice" in the sub-clause under discussion have been used, again following the Special Marriage Act.

The words "without prejudice" etc., are not likely to create any complications when contrasted with sub-clause (2), paragraphs (a) and (b). The position relating to sub-clause (2), paragraph (a) has been discussed above in the Notes thereto. The position relating to sub-clause (2), paragraph (b) has also been discussed above in the Notes thereto, which may be seen.

[As to the Converts' Marriage Dissolution Act, the subject has already been deal: with.3]

1. See clause 31.

2. See clause 74.

3. See the body of the Report, para. 63.

Report on the Law of Christian Marriage and Divorce Back

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