Section 49 of the Divorce Act, 1869 - Suits by Minors
Section 49 of the Divorce Act, 1869 prescribes how a petition under the Act is to be presented when the petitioner is a minor. The minor must sue through a next friend approved by the Court, and the next friend must give a written undertaking to answer for costs before the petition is filed.
Updated legal reference: September 24, 2026
Text and meaning of Section 49
Section 49 - Suits by minors.
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 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.
Historical note: the former words requiring the undertaking to bear a stamp of eight annas were repealed by the Court-fees Act, 1870 (Act 7 of 1870).
What is a next friend?
A next friend is the person through whom a minor institutes legal proceedings because the minor does not conduct the proceeding independently. Under Section 49, the next friend is not merely named in the petition: the person must be approved by the Court and must accept the statutory responsibility for costs in writing.
Requirements under Section 49
- The petitioner must be a minor.
- The petition must be brought through a next friend.
- The Court must approve the next friend.
- Before the petition is filed, the next friend must undertake in writing to be answerable for costs.
- The written undertaking must be filed in Court.
- After filing the undertaking, the next friend is liable for costs in the same manner and to the same extent as a plaintiff in an ordinary suit.
Relationship with the Code of Civil Procedure, 1908
Section 45 of the Divorce Act provides for application of the Code of Civil Procedure, 1908, subject to the provisions of the Divorce Act. Order XXXII of the CPC contains the general procedural rules for suits by or against minors and persons of unsound mind. In particular, Order XXXII Rule 1 states that every suit by a minor is to be instituted in the minor's name by a person called the next friend.
Section 49 is the specific provision governing a minor who presents a petition under the Divorce Act. The special requirements of Court approval and the written undertaking for costs should therefore be read together with the applicable procedural rules and the rules or practice directions of the Court concerned.
Practical effect of Section 49
A petition by a minor under the Divorce Act should identify the minor petitioner and the proposed next friend and comply with the Court's procedural requirements for approval of that representative. The written undertaking concerning costs is a statutory pre-filing requirement under Section 49. Local court rules, filing requirements and applicable court-fee provisions should also be checked before presentation.
Official legal sources
For the authoritative Central Act text, refer to the Divorce Act, 1869 on India Code. For the general rules concerning minors and next friends, refer to the Code of Civil Procedure, 1908 on India Code. The Legislative Department also publishes Central legislation and official legislative documents.
Related provision
Section 48 deals with suits on behalf of persons described in the statutory text as lunatics or idiots, while Section 50 deals with service of petitions. These provisions form part of the procedural framework surrounding petitions under the Divorce Act.