Chapter VII§31–41
Jurisdiction and Procedure
How Chapter V and VI petitions are filed, tried and appealed. §31 fixes the forum (place of marriage, respondent's residence, last cohabitation, wife-petitioner's residence since 2003, or petitioner's residence in absconding-respondent cases) plus a 3-year residence ground for wife-petitioners. §32 covers pleadings and verification, and §33 keeps every proceeding in camera. §34 is the gate-keeping clause (ground exists, no condonation/connivance, no force-fraud-induced mutual consent, no collusion, no delay, no other legal bar) with a reconciliation duty. §§35–38 carry counter-claims, alimony pendente lite, permanent alimony and child custody (with 60-day disposal targets). §§39–40C cover appeals (90 days), CPC applicability, inter-court transfer, day-to-day trial within 6 months and the documentary-evidence shortcut. §41 lets the High Court make procedure rules.
15 sections · MVP coverage
Court to which petition should be made
Any of five district courts can hear an SMA Chapter V/VI petition; plus a 3-year wife-resident-in-India special ground for nullity/divorce where the husband is not resident in India.
(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 (iiia) 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.
Contents and verification of petitions
Every Chapter V/VI petition must state the facts founding the relief and that there is no collusion; verification is in plaint-form and the petition itself can be evidence at hearing.
(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.
Proceedings to be in camera and may not be printed or published
Every proceeding under the Act is held in camera, and only High Court/Supreme Court judgments may be printed or published (and only with the court's prior permission); breach attracts fine up to ₹1,000.
(1) Every proceeding under this Act shall be conducted in camera and 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.
Duty of court in passing decrees
Before any Chapter V/VI relief, the court must be satisfied of the ground, that there is no accessory-to or condonation or connivance at adultery/cruelty, no force-fraud-undue-influence in mutual consent, no collusion, no improper delay and no other legal bar; reconciliation is to be attempted first.
(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 proceedings; 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 proceedings 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.
Relief for respondent in divorce and other proceedings
In divorce, judicial-separation or restitution suits, the respondent may oppose the relief and counter-claim on the petitioner's adultery, cruelty or desertion — and if proved, the court may grant the respondent any SMA relief.
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 petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground, and if the petitioner's 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.
Alimony pendente lite
Where the wife has no independent income sufficient for support and litigation expenses, the court may order the husband to pay her the expenses of the proceeding and a weekly/monthly sum during it; such applications must (as far as possible) be disposed of within 60 days.
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 sum as having regard to the husband's 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.
Permanent alimony and maintenance
On or after any Chapter V/VI decree, the court may order the husband to secure maintenance for the wife (gross sum or periodical, up to life) — charged on his property if needed; orders may be varied on change of circumstance, and may be modified/rescinded on wife's remarriage or unchaste conduct.
(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, on 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 husband's 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 husband's 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.
Custody of children
In any Chapter V/VI proceeding the court may pass interim or final orders for custody, maintenance and education of minor children — consistent with their wishes where possible — and vary them later; pending-litigation applications must, as far as possible, be disposed of within 60 days.
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 to 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.
Appeals from decrees and orders
Every Chapter V/VI decree is appealable like any original-civil decree; non-interim §37/§38 orders are also appealable; no appeal lies on costs alone; the appeal window is 90 days (raised from 30 by the 2003 amendment).
(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 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.
Enforcement of decrees and orders
All Chapter V/VI decrees and orders are enforced in the same manner as decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being.
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.
Application of Act 5 of 1908
Subject to anything in this Act and to High Court rules, every proceeding under the Act is regulated, as far as may be, by the Code of Civil Procedure, 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 (5 of 1908).
Power to transfer petitions in certain cases
When both spouses file separate §23 or §27 petitions, the later petition is consolidated with the earlier one — in the same court if both were filed there, otherwise transferred to the court of the first-filed petition.
(1) Where— (a) a petition under this Act has 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 petitions 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 (5 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 had been empowered so to do under the said Code.
Special provisions relating to trial and disposal of petitions under the Act
SMA trials run day-to-day so far as practicable, and the court must try to conclude within 6 months of service; appeals are similarly time-bound to 3 months from service.
(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day, until its conclusions, 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.
Documentary evidence
Notwithstanding anything in any other law, no document is inadmissible at an SMA trial merely because it is not duly stamped or registered — a relaxation tailored to matrimonial disputes.
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.
Power of High Court to make rules regulating procedure
The High Court may make rules (consistent with this Act and the CPC) for Chapters V, VI and VII — including impleading the alleged adulterer as co-respondent, awarding damages, intervention by non-parties, the form of nullity/divorce petitions, and gap-filling from the Indian Divorce Act, 1869.
(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 (5 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 contents 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).