Report No. 15
The reasons for omitting the following sections of the existing Acts have been given below:-
Indian Christian Marriage Act, 1872
|Section 3- definitions of various Churches, and of "Indian Christian" and "Roman Catholic"||Omitted, as unnecessary.|
|Section 9, 10 and 11||Omitted, as unnecessary.|
|Section 20, 21 and 22||Omitted, as unnecessary.|
|Section 37||Omitted, as unnecessary in the present day conditions.|
|Section 43||Omitted, as unnecessary.|
|Section 44 2nd and 3rd paragraphs||Omitted, as unnecessary.|
|Section 48||Omitted, as unnecessary.|
|Section 60 to 65||Omitted, consequent on the proposed abolition of marriage by certificate.|
|Section 74||Omitted, as unnecessary.|
|Section 81||Omitted, as unnecessary.|
|Section 85||Omitted, as unnecessary.|
|Section 87||Omitted, as unnecessary.|
Indian Divorce Act, 1860
|Section 3(1) part, "High Court"||Omitted for reason given already.|
|Section 3(2)||Omitted, as unnecessary.|
|Section 3(4)||Omitted, as unnecessary.|
|Section 3(6) and 3(7)||Omitted, as unnecessary.|
|Section 3(8)||Omitted, as unnecessary.|
|Section 3(10)||Omitted, as unnecessary.|
|Section 4 to 6||Omitted, as unnecessary.|
Section 7.-Section 7 provides that in all suits and proceedings under the Act, relief should be granted as nearly as may be on principles and rules followed by the Court for Divorce and Matrimonial Causes in England. The opinion is generally against the retention of such a provision, and hence it has been omitted. It is true that decisions of English courts might afford valuable assistance, as the branch of law is one with which English courts had to deal with for a considerable length of time. But that is not a ground for laying down that the Indian courts should act in conformity with the rules laid down in the English Divorce Courts. Courts in India might refer to them for guidance as indeed they do in respect of other subjects as well.
Sections 8 and 9.-Under the proposed scheme, there will be a regular appeal to the High Court against decisions given by the district court in proceedings under the Act, and that will assimilate these proceedings to other civil proceedings. There is no need, therefore, to confer an extraordinary jurisdiction on the High Courts to transfer proceedings duly taken in the mufassil courts.
As regards section 9, it should be noted that under existing section 45, Indian Divorce Act, the provisions of the Civil Procedure Code are generally to apply to the trial of proceedings under the Act, There is, therefore, no need for a special provision such as is contained in section 9.
Section 12, part (re-countercharge).-Omitted, as unnecessary.
Section 13, part.-Section 13 in part states certain grounds on which relief could be refused. All such grounds have already been provided in a single comprehensive clause. There is, however, a further provision is section 13 that when a petition is dismissed by a district court, the petitioner may nevertheless present a similar petition to the High Court. This is not necessary. Once a petitioner has moved the district court and a decision has been pronounced, the only remedy which should be open to the petitioner is to take the matter in appeal. This part of the section has, therefore, been omitted.
Section 14, part (condonation).-Omitted as unnecessary.
Section 17.-There is considerable opposition to the retention of section 17. There are no special reasons why decrees for dissolution should be put on a different footing from decrees passed by civil courts in other civil proceedings. Hence there is no need for a provision requiring that decrees for dissolution of marriage passed by a district court should be confirmed by the High Court. Section 17 has therefore been omitted.
Section 17A.-Section 17A was introduced in the Indian Divorce Act, 1869, by an amendment of 1927 and is based upon a similar provision in England. The section has not in practice been availed of to any extent. No useful purpose will be served by providing for the appointment of a (State) Proctor. It has, therefore, been omitted.
Section 20.-Omitted, as unnecessary.
Sections 24 and 25.-Omitted, as unnecessary1.
1. For a detailed discussion, see the body of the Report, para. 46.
Sections 27 to 31.-These sections confer certain rights on a wife to whom the Indian Succession Act, 1865, does not apply. The relevant provision is section 4 of the Indian Succession Act, 1865 and that has been repealed by the Indian Succession Act. 1925 and re-enacted as section 20. Under this section, two classes of persons are exempted from its operation:
(a) persons married before the 1st January, 1866. This sub-clause would have worked itself out and need not now be repeated.
(b) The wife of a marriage where either bride or bridegroom was at the time of the marriage a Hindu, a Mohammadan, a Sikh or a Jain by religion. This might have been necessary in view of the fact that the Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872, apply to marriages where one of the parties thereto is not a Christian. But under the scheme as proposed, the Act will apply only when both the parties thereto are Christians. In view of this, sections 27 to 31 are unnecessary and have been omitted.
Section 35.-This deals with costs. It is not necessary to enact any special provision in that behalf. The provisions of the Code of Civil Procedure are ample and confer on the court a discretion in the matter of awarding costs, and that must be sufficient to cover cases arising under this Act also. The section has therefore been omitted.
Section 38.-This provides that payments of alimony (granted to the wife) might be made either to her or to the trustees. There is no need for such a provision.
Section 39, first paragraph.-Omitted, for reasons already given.1 1. See notes to clause 46.
Section 39, second paragraph.-Omitted, as unnecessary.
Section 46.-Section 46 provides for the forms mentioned in the Appendix being used. There is no such provision in the Special Marriage Act or the Hindu Marriage Act. This can be left to be dealt with by the rule-making authority of the High Courts. The section has, therefore, been omitted.
Sections 48, 49 and 50.-Provisions of the Code of Civil Procedure relating to the matters mentioned in these sections will be attracted by the force of existing section 45, Indian Divorce Act. Hence the sections are unnecessary.
Sections 51-52.-These sections lay down certain special rules in the matter of taking evidence in proceedings under the Act. Subsequent to this enactment, the Indian Evidence Act was passed in 1872 and it contains general provisions applicable to all proceedings. In view of those provisions, these sections have become unnecessary. They have been omitted and the matter left to be determined in accordance with the provisions of the Evidence Act. [As to competence, see sections 118, 137 and 138 of that Act. As to compellability, see section 118 of that Act and section 179, I.P.C.].
Section 54.-There is no need for this section as the provisions of the Code of Civil Procedure will be ample for that purpose.
Section 56.-Omitted, as unnecessary.
Section 59.-Omitted for reasons already given.1
1. See note on clause 70.
Sections 60 and 61.-Omitted, as unnecessary.
Schedule of forms.-Omitted, as unnecessary (see under section 46, above).