Divorce Act, 1869

This Act may be called the Divorce Act, and shall come into operation on the first day of April, 1869.

This Act extends to the whole of Bangladesh.

Nothing hereinafter contained shall authorise any Court to grant any relief under this Act except where the petitioner or respondent professes the Christian religion,
or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in Bangladesh at the time when the petition is presented,
or to make decrees of nullity of marriage except where the marriage if solemnized, before
2
[the 26th day of March, 1971, has been solemnized in Pakistan] and if solemnized on or after that date has been solemnized in Bangladesh and the petitioner
is resident in Bangladesh at the time of presenting the petition, or to grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in Bangladesh at the time of presenting the petition:

Provided thatnothing in this paragraph shall be deemed to authorize any Court to grant any relief under this Act where the petitioner or respondent is a Muslim.

In this Act, unless there be something repugnant in the subject or context,-
2
[* * *]
3
[(2) "District Judge" means a Judge of a Principal Civil Court of a district.]

The jurisdiction now exercised by the High Court Division in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise: except so far as relates to the granting of marriage-licenses, which may be granted as if this Act had not been passed.

[Omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision And Declaration) Act, 1973
(Act No. VIII of 1973).]

[Omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision And Declaration) Act, 1973
(Act No. VIII of 1973).]

Subject to the provisions contained in this Act, the High Court Division and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief:

Provided thatnothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded.

The High Court Division may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under the Act.

The High Court Division may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such District Judge.

When any question of law or usage having the force of law arises at any point in the proceedings, previous to the hearing of any suit under this Act by a District Court or at any subsequent stage of such suit, or in the execution of the decree therein or order thereon,
the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the case and refer it, with the Court's own opinion thereon, to the decision of the High Court Division.
If the question has arisen previous to or in the hearing, the District Court may either stay such proceedings, or proceed in the case pending such reference and pass a decree contingent upon the opinion of the High Court Division upon it.
If a decree or order has been made, its execution shall be stayed until the receipt of the order of the High Court Division upon such reference.

Any husband may present a petition to the District Court or to the High Court Division, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.

Any wife may present a petition to the District court or to the High Court Division, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;
or has been guilty of incestuous adultery,
or of bigamy with adultery,
or of marriage with another woman with adultery,
or of rape, sodomy or bestiality,
or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce mensa et toro,
or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court:-

Upon any such petition for the dissolution of a marriage, the Court shall satisfy itself, so far as reasonable can, not only as to the facts alleged, but also whether or not the petitioner has been on any manner accessory to, or conniving at the going through of the said form of marriage, or the adultery, or has condoned the same, and shall also inquire into any countercharge which may be made against the petitioner.

In case the Court, on the evidence in relation to any such petition, is satisfied that the petitioner's case has not been proved, or is not satisfied that the alleged adultery has been committed,
or finds that petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,
or that the petition is presented or prosecuted in collusion with either of the respondents,
then and in any of the said cases the Court shall dismiss the petition.
When a petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court Division.

In case the Court is satisfied on the evidence that the case of the petitioner has been proved,
and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,
or that the petition is presented or prosecuted in collusion with either of the respondents,
the Court shall pronounce a decree declaring such marriage to be dissolved in the manner and subject to all the provisions and limitations in sections 16 and 17 made and declared:

Provided thatthe Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery,
or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition,
or of cruelty towards the other party to the marriage,
or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse,
or of such wilful neglect or misconduct of or towards the other party as has conduced to the adultery.

No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal co-habitation has been resumed or continued.

In any suit instituted for dissolution of marriage, if the respondent opposes the relief sought on the ground, in case of such a suit instituted by a husband, of his adultery, cruelty or desertion without reasonable excuse, or, in case of such a suit instituted by a wife, on the ground of her adultery and cruelty, the Court may in such suit give to the respondent, on his or her application, the same relief to which he or she would have been entitled in case he or she had presented a petition seeking such relief, and the respondent shall be competent to give evidence of or relating to such cruelty or desertion.

Every decree for a dissolution of marriage made by High Court Division, not being a confirmation of a decree of a District Court, shall, in the first instance, be a decree nisi, not to make absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court Division by general or special order from time to time directs.

During that period any person shall be at liberty, in such manner as the High Court Division by general or special order from time to time directs, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not being brought before the Court.
On cause being so shown, the Court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as justice may demand.
The High Court Division may order the costs of counsel and witnesses, and otherwise arising from such cause being shown, to be paid by the parties or such one or more of them as it thinks fit, including a wife if she have separate property.
Whenever a decree nisi has been made, and the petitioner fails, within a reasonable time, to move to have such decree made absolute, the High Court Division may dismiss the suit.

2
[17A. The Government may appoint an officer who shall, within the jurisdiction of the High Court Division
3
[* * *], have the like right of showing cause why a decree for the disso-lution of a marriage should not be made absolute or should not be confirmed, as the case may be, as is exercisable in England by the King's Proctor; and the Government may make rules regulating the manner in which the right shall be exercised and all matters incidental to or consequential on any exercise of the right.
4
[* * *]]

Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court Division.
Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court Division is three or upwards) by a Court composed of three such Judges, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court Division is two) by a Court composed of such two Judges, and in case of difference the opinion of the senior Judge, shall prevail.
The High Court Division, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made or such evidence to be taken.
The result of such enquiry and the additional evidence shall be certified to the High Court Division by the District Judge, and the High Court Division shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit:

Provided thatno decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court Division by general or special order from time to time directs.
During the progress of the suit in the Court of the District Judge, any person, suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court Division by general or special order from time to time directs, to apply to the High Court Division to remove the suit under section 8, and the High Court Division shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in section 16 shall apply to every suit so removed;
or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case.

Any husband or wife may present a petition to the District Court or to the High Court Division, praying that his or her marriage may be declared null and void.

Such decree may be made on any of the following grounds:-

Every decree of nullity of marriage made by a District Judge shall be subject to confirmation by the High Court Division, and the provisions of section 17, clauses 1, 2, 3 and 4, shall, mutatis mutandis, apply to such decrees.

Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.

No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.

Application for judicial separation on any one of the grounds aforesaid may be made by either husband or wife by petition to the District Court or the High Court Division; and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.

In every case of a judicial separation under this Act, the wife shall, from the date of the sentence, and whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire, or which may come to or devolve upon her.
Such property may be disposed of by her in all respects as an unmarried woman, and on her decease the same shall, in case she dies intestate, go as the same would have gone if her husband had been then dead:

Provided that, if any such wife again cohabits with her husband, all such property as she may be entitled to when such co-habitation takes place shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst separate.

In every case of a judicial separation under this Act, the wife shall whilst so separated, be considered as an unmarried woman for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding; and her husband shall not be liable in respect of any contract, act or costs entered into, done, omitted or incurred by her during the separation:

Provided thatwhere, upon any such judicial separation, alimony has been decreed or ordered to be paid to the wife, and the same is not duly paid by the husband, he shall be liable for necessaries supplied for her use:
Provided also that nothing shall prevent the wife from joining at any time during such separation, in the exercise of any joint power given to herself and her husband.

Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at any time thereafter, present a petition to the Court by which the decree was pronounced, praying for a reversal of such decree, on the ground that it was obtained in his or her absence, and that there was reasonable excuse for the alleged desertion, where desertion was the ground of such decree.
The Court may, on being satisfied of the truth of the allegations of such petition, reverse the decree accordingly; but such reversal shall not prejudice or affect the rights or remedies which any other person would have had, in case it had not been decreed, in respect of any debts, contracts or acts of the wife incurred, entered into or done between the times of the sentence of separation and of the reversal thereof.

Any wife to whom section 4 of
2
[the
Succession Act, 1925
], does not apply, may, when deserted by her husband, present a petition to the District Court or the High Court Division, at any time after such desertion, for an order to protect any property which she may have acquired or may acquire, and any property of which she may have become possessed or may become possessed after such desertion, against her husband or his creditors, or any person claiming under him.

The Court, if satisfied of the fact of such desertion, and that the same was without reasonable excuse, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and other property from her husband and all creditors and persons claiming under him. Every such order shall state the time at which the desertion commenced, and shall, as regards all persons dealing with the wife in reliance thereon, be conclusive as to such time.

The husband or any creditor of, or person claiming under him, may apply to the Court by which such order was made for the discharge or variation thereof, and the Court, if the desertion has ceased, or if for any other reason it think fit so to do, may discharge or vary the order accordingly.

If the husband, or any creditor of, or person claiming under, the husband, seizes or continues to hold any property of the wife after notice of any such order, he shall be liable, at the suit of the wife (which she is hereby empowered to bring), to return or deliver to her the specific property, and also to pay her a sum equal to double its value.

So long as any such order of protection remains in force, the wife shall be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation.

When either the husband or the wife has, without reasonable excuse with drawn from the society of the other, either wife or husband may apply, by petition to the District Court or the High Court Division, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which would not be ground for a suit for judicial separation or for a decree of nullity of marriage.

Any husband may, either in a petition for dissolution of marriage or for judicial separation, or in a petition to the District Court or the High Court Division limited to such object only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner.
Such petition shall be served on the alleged adulterer and the wife unless the Court dispenses with such service, or directs some other service to be substituted.
The damages to be recovered on any such petition shall be ascertained by the said Court, although the respondents or either of them may not appear.
After the decision has been given, the Court may direct in what manner such damages shall be paid or applied.

Whenever in any petition presented by a husband, the alleged adulterer has been made a co-respondent, and the adultery has been established, the Court may order the co-respondent to pay the whole or any part of the cost of the proceedings:

Provided thatthe co-respondent shall not be ordered to pay the petitioner's cost,

In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit.
Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statement therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just:

Provided thatalimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be.

The High Court Division may, if it thinks fit, on any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,
and the District Judge may, if it thinks fit, on the confirmation of any decree of his, declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,
order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable, and for that purpose may cause a proper instrument to be executed by all necessary parties.
In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:

Provided thatif the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit.

In all cases in which the Court makes any decree or order for alimony it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court expedient so to do.

The Court may direct that the whole or any part of the damages recovered under section 34 shall be settled for the benefit of the children of the marriage, or as a provision for the maintenance of the wife.

Whenever the Court pronounces a decree of dissolution of marriage or judicial separation for adultery of the wife, if it is made to appear to the Court that the wife is entitled to any property, the Court may, if it thinks fit, order such settlement as it thinks reasonable to be made of such property or any part thereof, for the benefit of the husband, or of the children of the marriage, or of both.
Any instrument executed pursuant to any order of the Court at the time of or after the pronouncing of a decree of dissolution of marriage or judicial separation shall be deemed valid notwithstanding the existence of the disability of covertures at the time of the execution thereof.

The High Court Division, after a decree absolute for dissolution of marriage, or a decree of nullity of marriage,
And the District Court, after its decree for dissolution of marriage or of nullity of marriage has been confirmed,
may inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders, with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or of the children (if any) of the marriage, or of both children and parents, as to the Court seems fit:

Provided thatthe Court shall not make any order for the benefit of the parents or either of them at the expense of the children.

In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the such suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the said Court.

The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time, all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.