Section 44 of the Divorce Act, 1869 - Orders for Minor Children After Decree
Section 44 of the Divorce Act, 1869 empowers the District Court, after a decree of dissolution or nullity of marriage has been passed, to make further orders concerning the custody, maintenance, education and protection of the minor children of the marriage.
Section: 44
Act: The Divorce Act, 1869 (Act No. 4 of 1869)
Subject: Post-decree orders relating to minor children
Court: District Court, upon an application by petition
Text of Section 44
44. Power to make such orders after decree or confirmation. - Where a decree of dissolution or nullity of marriage has been passed, the District Court may, upon application by petition for the purpose, make from time to time all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents was the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree absolute or decree (as the case may be), or by such interim orders as aforesaid.
The opening words of Section 44 were substituted by Section 26 of the Indian Divorce (Amendment) Act, 2001, with effect from 3 October 2001.
Meaning and scope of Section 44
Section 44 gives the District Court a continuing power to deal with arrangements for minor children even after the matrimonial court has passed a decree dissolving the marriage or declaring it null. The provision recognises that a child's needs and circumstances may change after the decree and therefore permits the court to make orders "from time to time" on matters specified in the section.
The power under Section 44 covers four connected areas: custody of the minor child, maintenance, education, and placement of the child under the protection of the court. An order is not automatic. The section expressly contemplates an application by petition to the District Court.
When can Section 44 be invoked?
Section 44 applies where a decree of dissolution of marriage or nullity of marriage has already been passed. A party seeking a further order concerning the minor children may apply by petition. Because the section authorises orders "from time to time", the court may revisit appropriate arrangements when a subsequent application is made and the circumstances justify a further order.
Orders the District Court may make
| Subject | Scope under Section 44 |
|---|---|
| Custody | Orders concerning the care and custody of the minor children of the marriage. |
| Maintenance | Orders making provision for the maintenance of the minor children. |
| Education | Orders concerning educational provision for the minor children. |
| Protection | Orders placing the children under the protection of the court where legally appropriate. |
Meaning of District Court under the Divorce Act
Section 3(3) of the Divorce Act defines "District Court", for a petition under the Act, by reference to the Court of the District Judge having the territorial jurisdiction specified in that provision. The statutory definition should be read with any applicable law governing Family Courts and local court jurisdiction when deciding the proper forum for filing a petition.
Meaning of minor children
The Divorce Act contains a specific definition of "minor children" in Section 3(5). Because Section 44 uses that defined expression, the statutory definition in Section 3 should be checked when determining whether the provision applies to a particular child.
Relationship with Sections 41 to 43
Sections 41 to 44 form Part XI of the Divorce Act dealing with custody of children. Section 41 concerns custody-related orders in a suit for judicial separation, Section 42 permits further orders after a decree of judicial separation, Section 43 deals with custody-related orders in suits for dissolution or nullity, and Section 44 provides for further orders after a decree of dissolution or nullity.
2001 amendment to Section 44
The Indian Divorce (Amendment) Act, 2001 substantially modernised the Divorce Act. In Section 44, the earlier opening language referring separately to the High Court after a decree absolute and the District Court after confirmation was replaced. The present provision begins with a decree of dissolution or nullity having been passed and confers the post-decree power on the District Court upon application by petition.
Section 44 should be read with the other provisions of the Divorce Act and the procedural and jurisdictional law applicable to the court concerned. The appropriate relief depends on the facts of the case and the welfare-related circumstances of the child.
Official legal source
For the authoritative consolidated text of the central legislation, refer to the Government of India's India Code copy of The Divorce Act, 1869.