Every decree for dissolution of marriage made by a High Court 1*** shall in the first instance, be a decree nisi, not to be made absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court, by general or special order from time to time, directs.
Collusion. During that period any person shall be at liberty, in such manner as the High Court 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 may order the cost 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 may dismiss the suit.
Simplified Explanation
Section 16 of the Indian Divorce Act, 1869 outlines the process and conditions under which a decree for dissolution of marriage is initially passed and the conditions under which it can become absolute, as well as how the Court handles cases of collusion.
Key Provisions of Section 16
1. Decree for Dissolution of Marriage – Decree Nisi
- A decree nisi is a provisional decree, which is not final and does not immediately dissolve the marriage. Instead, the decree is given by the Court as a temporary order, but it becomes absolute only after a specified period (not less than six months).
- This waiting period allows for a careful review and gives time for any objections to be raised before the decree is finalized.
- The decree nisi will be made absolute only after six months from its pronouncement, or after a time frame directed by the High Court through general or special orders. This waiting period is designed to ensure that the dissolution is not rushed and allows for further examination of the case.
2. Collusion
- Collusion refers to a situation where the parties to the divorce (husband and wife) may have secretly agreed to obtain a divorce through dishonest means, which could involve withholding material facts or fabricating evidence.
- During the six-month period after the decree nisi is pronounced, any interested person has the right to show cause (raise an objection) if they believe that the divorce was obtained by collusion or that material facts were deliberately concealed from the Court. The Court must then consider these objections.
3. Court’s Power to Act on Collusion
- If a party or person raises an objection about collusion or missing facts, the Court has several options:
- The Court can make the decree absolute if no valid objections are found.
- The Court can reverse the decree nisi if it determines that collusion or concealment of material facts occurred.
- The Court may decide to conduct further inquiry to verify the claims made about collusion or omitted facts.
- The Court’s objective here is to ensure that the divorce is not granted through fraudulent means and that justice is served.
4. Costs of Counsel and Witnesses
- If someone shows cause and raises objections to the decree nisi (such as challenging the dissolution on grounds of collusion), the Court may order the costs of counsel and witnesses to be paid by the parties involved.
- The Court may order that the parties or one or more of them pay the costs, depending on who is found to be responsible for causing the delay or objection.
- Notably, if the wife has separate property, the Court can order her to pay these costs.
5. Failure to Move for Decree Absolute
- If the petitioner (the person who filed for the divorce) fails to move the Court to make the decree nisi absolute within a reasonable time, the High Court has the power to dismiss the divorce suit entirely.
- This provision ensures that the process is not unnecessarily prolonged and that the case is finalized within a reasonable period.
Practical Implications of Section 16
- Waiting Period for Decree Nisi:
- The six-month waiting period ensures that the divorce is not finalized prematurely, giving time for objections to be raised, and for both parties to reconsider the decision or for a third party to bring any hidden or suppressed facts to light.
- Prevention of Collusion:
- The provision that allows for objections to be raised during the waiting period is aimed at preventing fraudulent divorces. It ensures that the process of dissolution of marriage is not manipulated by the parties involved.
- Power of the Court:
- The Court has broad powers to address any irregularities in the divorce process. It can reverse, modify, or inquire further into the case if there is any suspicion of collusion or misrepresentation.
- Cost Recovery:
- The provision to recover the costs from the parties involved in raising objections (especially related to collusion) is meant to discourage baseless objections and ensure that the parties act in good faith.
- Dismissal of Petition for Inactivity:
- The rule that the petition may be dismissed if the petitioner fails to move for the decree to be made absolute within a reasonable time ensures efficiency in the legal process and prevents prolonged uncertainty regarding the dissolution of marriage.
Example of Application
Suppose a husband petitions for a divorce, and the Court grants a decree nisi. During the waiting period, a third party (perhaps a family member or a concerned individual) believes that the divorce was obtained through collusion (for instance, the husband and wife may have agreed to divorce to divide assets, or the wife has not actually committed adultery). This third party can raise an objection during the six-month period.
The Court will then examine the objection and, if it finds that the divorce was granted improperly (due to collusion or omitted facts), the Court could:
- Reverse the decree nisi.
- Order an inquiry to investigate the claims.
- Dismiss the suit if it finds the objection invalid or malicious.
Conclusion
Section 16 of the Indian Divorce Act, 1869 ensures a fair process in the dissolution of marriages by allowing a provisional decree nisi to be issued and giving time for objections. It is aimed at preventing fraudulent divorces obtained through collusion or hidden facts and ensures that the process is transparent and just for both parties. The section also sets out provisions for cost recovery and dismissal of cases in certain circumstances to promote efficiency.
