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Chapter XVI – Statement of Objects and Reasons

THE object of this Bill is to place the Matrimonial Law administered by the High Courts, in the exercise of their original jurisdiction, on the same footing as the Matrimonial Law administered by the Court for Divorce and Matrimonial Causes in England.

The 9th Section of the Act of Parliament for establishing High Courts of Judicature in India (24 & 25 Vic., Ch. 10 (4) provides that the High Courts shall exercise such Matrimonial Jurisdiction as Her Majesty by Letters Patent shall grant and direct. Under the authority thus conferred by Parliament, the 35th Section of the Letters Patent, constituting the High Courts of Judicature, provides as follows:-

“And we do further ordain that the said High Court of Judicature at Fort William in Bengal shall have Jurisdiction in matters matrimonial between our subjects professing the Christian religion, and that such Jurisdiction shall extend to the local limits within which the Supreme Court now has Ecclesiastical Jurisdiction. Provided always that nothing herein contained shall be held to interfere with the exercise of any Jurisdiction in matters Matrimonial by any Court not established by Royal Charter within the said Presidency lawfully possessed thereof.”

Letter from Secretary of State, Judicial No. 24, dated 14th May, 1862.

In the Despatch of the Secretary of State transmitting the Letters Patent, the 33rd and 34th paragraphs are to the following effect:-

“Her Majesty’s Government are desirous of placing the Christian subjects of the Crown within the Presidency in the same position under the High Court, as to matters matrimonial in general, as they now are under the Supreme Court, and this they believe, to be effected by Clause 35 of the Charter. But they consider it expedient that the High Court should possess, in addition, the power of decreeing divorce which the Supreme Court does not possess, in other words, that the High Court should have the same Jurisdiction as the Court for Divorce and Matrimonial Causes in England, established in virtue of Act 20 and 21 Vic., C. 85 and in regard to which further provisions were made by 22 and 23 Vic., C. 61, and 23 and 24 Vic., C. 144. The Act of Parliament for establishing the High Courts, however, does not purport to give to the Crown the power of importing into the Charter all the provisions of the Divorce Court Act, and some of them, the Crown clearly could not so import, such, for instance, as those which prescribe the period of re-marriage, and those which exempt from punishment clergymen refusing to re-marry adulterers. All these are, in truth, matters for Indian legislation, and I request that you will immediately take the subject into your consideration, and introduce into your Council a Bill for conferring upon the High Court, the Jurisdiction and Powers of the Divorce Court in England, one of the provisions of which should be to give an appeal to the Privy Council in those cases in which the Divorce Court Act gives an appeal to the House of Lords.”

“The object of the provision at the end of Clause 35 is to obviate any doubt that may possibly arise as to whether, by vesting the High Court with the powers of the Court for Divorce and Matrimonial Causes in England, it was intended to take away from the Courts within the division of the Presidency, not established by Royal Charter, any Jurisdiction which they might have in matters matrimonial, as for instance in a suit for alimony between Armenians or Native Christians. With any such Jurisdiction it is not intended to interfere.”

In addition to the Act of Parliament mentioned by the Secretary of State as regulating the Jurisdiction of the English Divorce Court, the Statute 25 & 26 Vic., Ch. 81 has been passed in the year just expired (1862). The object of this Statute is to render perpetual 23 and 24 Vic., Ch. 144, the duration of which had been originally limited to two years.

The Draft of a Bill has been prepared to give effect to the Secretary of State’s instructions but some variations from the English Statutes in respect of Procedure have been adopted.

With a view to uniformity in practice in the several branches of Jurisdiction, the Bill provides that the Procedure of the Code of Civil Procedure shall be followed, instead of the Rules of Her Majesty’s Court for Divorce and Matrimonial Causes in England, and it omits the provision in 20 and 21 Vic., Ch. 85 respecting the occasional trial of questions of fact by Juries.

In respect of fees, it has been considered that the Act XX of 1862, (lately continued by the Governor-General in Council for another year), renders special legislation unnecessary.

The power of intervening in suits, given by 23 and 24 Vic., Ch. 144, to the Attorney General and the Queen’s Proctor is, in this Bill, given to the Advocate General and the Solicitor to Government.

There are also other variations of a minor and verbal character.

The Draft Bill having been submitted to the Judges of the several High Courts, with a request that they would favour the Government with their opinions on it, communications have been received, and will be laid before the Council, from the Judges at Calcutta and Bombay. In these letters there are several important suggestions, and the Honorable the Chief Justice of the High Court at Calcutta has intimated that he considers it doubtful whether decrees by the High Court under the proposed Act, dissolving the marriages of persons who have been married in England, would have legal effect there. The question is one of considerable difficulty as well as of great importance, and has been stated to the Secretary of State, with the view of obtaining the opinion of Her Majesty’s Law officers, and, if necessary, some legislative measure to remove all doubt. 1st January, 1863.

HENRY S.MAINE.