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Report No. 164

Part II

Urgent Necessity to Amend Sections 17 and 20 of The Act

2.7. If for any reason, there is going to be some delay in enacting a new comprehensive law as suggested in Part I and paragraph 1.5.2, supra of this report, the provisions in sections 17 and 20 may at least be amended forthwith in the circumstances and for the reasons mentioned hereinafter.

2.8. The general practice appears to be that parties seeking dissolution of marriage under this Act generally approach the District Court but that court can grant only the decree nisi which has to be confirmed by a Bench of not less than three judges of the High Court. Of course, if the High Court has only two judges then the two judges shall form a Bench and can hear such reference. (As a matter of fact, today there is no High Court with only two Judges, except perhaps Sikkim). On account of the heavy load of work in all the High Courts in the country, constitution of a three-judge Bench to hear the confirmation matters under this Act takes a long time, indeed several years.

Parties who have obtained a decree nisi of dissolution from the District Court have to wait interminably till a special bench of three judges is constituted. The personal laws governing the Hindus and Muslims do not contain any provision for confirmation by a special Bench of three judges. Under the Hindu Marriage Act, 1955, a decree for divorce or dissolution can be made by a District Judge finally and it is upto a losing party to file an appeal to the High Court which of course is to be heard by a Bench of two judges. Similar is the case in the case of Muslims.

Indian Divorce Act, 1869 Back

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