Section 17 of the Divorce Act, 1869 - Power of High Court to Remove Certain Suits
Section 17 of the Divorce Act, 1869 deals with suspected collusion in a divorce suit pending before a District Judge. It permits an application to the High Court for removal of the suit and gives the High Court power either to try the removed suit itself or to direct the District Judge to investigate and address the alleged collusion.
What Section 17 provides
During the progress of a divorce suit before the District Judge, a person who suspects that parties are acting, or have acted, in collusion to obtain a divorce may apply to the High Court, in the manner directed by the High Court, for removal of the suit under Section 8.
The High Court may, if it considers removal appropriate, remove the suit and try and determine it in its original jurisdiction. Section 16 then applies to the removed suit. Alternatively, the High Court may direct the District Judge to take the steps necessary concerning the alleged collusion so that a decree may be made in accordance with the justice of the case.
Meaning and purpose of Section 17
The provision is an anti-collusion safeguard. In this context, collusion refers to cooperation or an arrangement between parties designed to obtain a divorce through a case that does not fairly present the true circumstances to the court. Section 17 enables judicial scrutiny where such collusion is suspected while the suit is still pending before the District Judge.
Key elements of Section 17
- Pending proceeding: the divorce suit must be in progress before the District Judge.
- Suspicion of collusion: the provision is triggered where a person suspects collusion between parties for the purpose of obtaining a divorce.
- Application to High Court: the application must follow the manner prescribed by a general or special order of the High Court.
- Connection with Section 8: removal is sought under Section 8 of the Divorce Act, which concerns the High Court's extraordinary jurisdiction over proceedings under the Act.
- High Court's discretion: the High Court may remove the suit if it thinks fit; removal is not automatic merely because an allegation is made.
- Effect of removal: if the High Court removes the suit, it tries and determines the matter as a court of original jurisdiction and Section 16 applies.
- Alternative direction: instead of removing the suit, the High Court may direct the District Judge to take necessary steps regarding the alleged collusion.
Relationship with Sections 8 and 16
Section 8 - Extraordinary jurisdiction of the High Court
Section 17 expressly refers to removal of the suit under Section 8. The two provisions therefore operate together where the High Court is asked to intervene in a proceeding pending before a District Court.
Section 16 - Decrees for dissolution to be nisi
Section 17 expressly states that the provisions of Section 16 apply to a suit removed to the High Court under Section 17. Section 16 also contains safeguards relating to collusion and material facts in proceedings concerning a decree for dissolution.
2001 substitution of Section 17
The present Section 17 was substituted by Section 12 of the Indian Divorce (Amendment) Act, 2001, with effect from 3 October 2001. The current statutory text should therefore be read in its amended form rather than by relying on older versions of the provision.