Section 51 of the Divorce Act, 1869: Mode of Taking Evidence
Section 51 regulates how witness and party evidence may be taken in proceedings under the Divorce Act, 1869. It recognizes oral examination as the ordinary mode where attendance can be secured, while also permitting verification by affidavit subject to cross-examination.
What Section 51 provides
In proceedings before the court, witnesses whose attendance can be obtained are to be examined orally. A party may also appear as a witness and may be examined, cross-examined and re-examined in the same manner as another witness.
Section 51 further permits the parties to verify their cases, wholly or partly, by affidavit. However, the person making the affidavit may be required to attend for oral cross-examination on the application of the opposite party or by direction of the Court, and may thereafter be orally re-examined.
The above is a plain-language presentation of the statutory rule. For the authoritative text, refer to the official India Code copy of the Divorce Act, 1869.
Meaning and scope of Section 51
The provision deals with the mode of recording evidence in proceedings governed by the Divorce Act. Its central rule is that, where a witness can attend court, evidence may be taken orally. It also expressly makes the parties competent to offer themselves as witnesses for the purpose contemplated by this section.
The affidavit proviso gives procedural flexibility, but affidavit evidence is not necessarily insulated from oral testing. If the opposite party applies for cross-examination, or if the Court directs it, the deponent is subject to oral cross-examination. Re-examination may follow after cross-examination.
Key legal expressions explained
Examination-in-chief
This is the examination of a witness by the party who calls that witness. Section 51 permits a party to offer himself or herself as a witness and contemplates examination in the same procedural setting as other witnesses.
Cross-examination
Cross-examination is questioning of a witness or affidavit deponent by or on behalf of the opposite party. Under Section 51, an affidavit deponent may be required to submit to oral cross-examination.
Re-examination
Re-examination follows cross-examination and is conducted by or on behalf of the party who called the witness or filed the affidavit, subject to the applicable law and procedure.
Affidavit evidence
An affidavit is a written statement affirmed or sworn in the manner recognized by law. Section 51 allows a party to verify the whole or part of the case by affidavit, while preserving the possibility of oral cross-examination of the deponent.
How Section 51 operates with procedural and evidence law
Section 45 of the Divorce Act provides for application of the Code of Civil Procedure, 1908, subject to the provisions contained in the Divorce Act. Section 51 is therefore a specific provision within the Act dealing with the manner in which evidence may be given and tested in proceedings under it.
Questions concerning admissibility, proof and evidentiary procedure must also be considered with the evidence law and procedural rules applicable to the particular proceeding. The Bharatiya Sakshya Adhiniyam, 2023 is the current general evidence statute for proceedings to which it applies from 1 July 2024, subject to its commencement and savings provisions.
Section 51 at a glance
- Witnesses may be examined orally where their attendance can be obtained.
- A party may offer himself or herself as a witness.
- A witness may be examined, cross-examined and re-examined.
- A party may verify the whole or part of the case by affidavit.
- An affidavit deponent may be required to attend for oral cross-examination.
- After cross-examination, the deponent may be orally re-examined.
Related provision
Legal information reviewed against official central legislation sources on 24 September 2026. Court rules and the law applicable to a particular proceeding should also be checked.