Section 4 of the Divorce Act, 1869: Matrimonial Jurisdiction of High Courts

Section 4 of the Divorce Act, 1869 forms part of the Act's jurisdictional provisions. It requires the matrimonial jurisdiction referred to in the section to be exercised by the High Courts and District Courts subject to the Divorce Act, while preserving the stated exception concerning marriage licences.

Text of Section 4

Section 4 - Matrimonial jurisdiction of High Courts to be exercised subject to Act. Exception.
The jurisdiction now exercised by the High Courts 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.

Meaning and Scope of Section 4

The provision places the exercise of the matrimonial jurisdiction described in Section 4 within the statutory framework of the Divorce Act, 1869. In other words, where the Act governs the matrimonial proceeding, the High Court or District Court must exercise the relevant jurisdiction in accordance with the Act rather than independently of its provisions.

High Court and District Court

Section 3 of the Divorce Act contains definitions relevant to jurisdiction. For a petition under the Act, the expression "High Court" is defined by reference to the area where the husband and wife reside or last resided together. "District Judge" means a Judge of a principal civil court of original jurisdiction, however designated, and "District Court" is defined for petitions under the Act by the territorial connections specified in Section 3.

Meaning of "divorce a mensa et toro"

The expression is historical terminology appearing in the original statutory language. It refers to a form of judicial separation rather than a dissolution of the marriage bond. The phrase should therefore be read in its historical and statutory context and not as a separate modern ground of divorce.

Marriage-licence exception

The closing words of Section 4 expressly exclude the granting of marriage licences from the restriction stated in the main part of the section. The statutory text says such licences may be granted as if the Divorce Act had not been passed.

Practical Effect

The matrimonial jurisdiction mentioned in Section 4 is subject to the provisions of the Divorce Act, 1869.
Both High Courts and District Courts are expressly referred to in the provision.
Territorial and court-related definitions in Section 3 should be read with Section 4.
Section 8 separately enables the High Court, when it thinks fit, to remove and try a suit or proceeding instituted under the Act in a District Judge's court within its jurisdiction.
Where a Family Court has been established and jurisdiction is conferred on it by the Family Courts Act, 1984, the jurisdictional scheme must also be read with that Act.

Legal note: Section 4 is primarily a jurisdictional provision. Questions about the proper court for a particular matrimonial proceeding may also depend on the definitions and other provisions of the Divorce Act, the Family Courts Act, 1984, applicable notifications, and the facts establishing territorial jurisdiction.

Related Provisions

For a fuller understanding of the jurisdictional framework, see Section 3 - Interpretation clause, Section 5 - Enforcement of earlier decrees or orders, Section 6 - Pending suits, Section 8 - Extraordinary jurisdiction of High Court, Section 9 - Reference to High Court, and Section 10 - Grounds for dissolution of marriage.

This page is an informational explanation of the statutory provision. For a particular proceeding, the current statutory text, applicable court rules and jurisdictional notifications should be checked.