Where the Petitioner is a minor, he or she shall sue by his or her next friend to be approved by the Court; and no Petition presented by a minor under this Act shall be filed until the next friend has undertaken in writing to be answerable for costs. Such undertaking 1* * * shall be filed in Court, and the next friend shall thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.
Simplified Explanation
Section 49 of the Indian Divorce Act, 1869 governs the procedure for minors (individuals under the age of majority) filing petitions for divorce, judicial separation, or nullity of marriage under this Act.
Key Points of Section 49
- Suing Through a Next Friend:
- If the Petitioner is a minor, they are required to file the petition through a “next friend”, who is a person appointed to represent the minor in legal proceedings.
- The next friend must be approved by the Court, ensuring that the person representing the minor is suitable and responsible for managing the minor’s legal affairs.
- Undertaking for Costs:
- Before a minor’s petition can be filed in Court, the next friend must give an undertaking in writing, committing to be answerable for the costs of the proceedings.
- This is to ensure that the Court has assurance that any expenses incurred in the lawsuit, whether successful or not, will be covered.
- Liability of the Next Friend:
- Once the next friend has given the written undertaking, they become liable for costs in the same manner as if they were the actual plaintiff in the case.
- This liability ensures that the Court has a responsible party who can cover the financial aspects of the case, protecting both the minor and the other parties involved.
- Court’s Role in Approval:
- The Court has the power to approve or disapprove of the next friend, which ensures that the person chosen to represent the minor is competent, trustworthy, and suitable for the responsibility.
Practical Implications
- Protection of Minor’s Interests:
- The next friend represents the minor’s interests and ensures that they can access justice despite being unable to engage in legal proceedings on their own due to their age.
- Financial Accountability:
- The requirement for the next friend to undertake financial responsibility (costs) protects the Court and other parties from bearing the costs of a minor’s legal action in case it is unsuccessful.
- Legal Safeguards:
- The Court’s approval of the next friend ensures that the minor’s interests are properly safeguarded, and that the person taking responsibility is capable of handling the legal proceedings.
- The undertaking for costs helps avoid situations where the minor might not be able to meet any financial obligations that arise from the case.
- Impact on Minors Seeking Relief:
- This provision is important for minors seeking divorce, judicial separation, or nullity of marriage as it allows them to do so with appropriate legal representation. It ensures the minor’s legal rights are protected in marriage-related matters, even though they are not legally capable of managing the suit on their own.
Example of Application
- Minor Wife Seeking Divorce: If a minor wife seeks to file for divorce under the Indian Divorce Act, she would need a next friend (for example, a parent or guardian) who will be approved by the Court. The next friend must undertake in writing to be responsible for the costs of the case. This person will manage the case on her behalf, ensuring her legal rights are protected while bearing the responsibility of costs.
- Minor Husband Seeking Nullity: Similarly, if a minor husband wishes to file for nullity of marriage, he would do so through a next friend who would also bear the costs of the suit.
Conclusion
Section 49 of the Indian Divorce Act, 1869 ensures that minors are able to seek legal remedies in matters of marriage, such as divorce, judicial separation, or nullity, through the representation of a next friend. The next friend must be approved by the Court and undertake financial responsibility for the costs of the case, thereby protecting the minor’s interests while ensuring accountability.
