Section 45 of the Divorce Act, 1869 - Code of Civil Procedure to Apply

Section 45 connects proceedings under the Divorce Act, 1869 with the procedural framework of the Code of Civil Procedure, 1908 (CPC). The CPC regulates proceedings between parties unless the Divorce Act itself contains a provision governing the matter.

Updated: 24 September 2026

Text of Section 45

The reference to the Code of Civil Procedure, 1908 was substituted by the Marriage Laws (Amendment) Act, 2001 (Act 51 of 2001), section 27, with effect from 3 October 2001.

Meaning and Scope of Section 45

The opening words, "Subject to the provisions herein contained", make the Divorce Act the primary statute for proceedings brought under it. Where the Divorce Act contains a specific procedural rule, that rule governs. Where it does not provide a different procedure, Section 45 makes the CPC applicable to proceedings between the parties.

In practical terms, the CPC supplies the general civil-procedure framework for matters such as institution and conduct of proceedings, pleadings, service, applications, production of documents, procedural orders and other civil-court processes, subject always to the Divorce Act and any applicable court rules.

What is the Code of Civil Procedure, 1908?

The Code of Civil Procedure, 1908 (Act 5 of 1908) is the principal central legislation consolidating and amending the law relating to the procedure of civil courts. It came into force on 1 January 1909. Section 45 of the Divorce Act expressly adopts this procedural code for proceedings between parties under the Divorce Act, subject to the Act's own provisions.

How Section 45 Operates

• Divorce Act prevails on a specific procedure: if the Divorce Act contains a special procedural requirement, it is followed first.
• CPC fills procedural gaps: where the Divorce Act does not prescribe a different procedure, the relevant CPC provisions regulate the proceeding.
• Application is procedural: Section 45 is a procedural link; it does not replace the substantive matrimonial rights and remedies created by the Divorce Act.
• Court rules may also matter: parties should check applicable High Court, Family Court and local procedural rules in addition to the central statutes.

Relationship with Nearby Provisions

Section 45 should be read with the provisions that follow it. Section 46 deals with forms of petitions and statements, while Section 47 requires a petition to state the absence of collusion. These provisions illustrate why the CPC applies subject to the specific requirements contained in the Divorce Act.

Official Legal Sources

For the authoritative statutory text, consult the Divorce Act, 1869 on India Code and the Code of Civil Procedure, 1908 on India Code. The Legislative Department also publishes the central legislation collection.