Section 52 of the Divorce Act 1869: Husband and Wife Evidence on Cruelty or Desertion
Section 52 of the Divorce Act, 1869 deals with the competence and compellability of spouses to give evidence concerning cruelty or desertion in the divorce petitions covered by the section.
Text of Section 52
Competence of husband and wife to give evidence as to cruelty or desertion
On any petition presented, by a husband or a wife, praying that his or her marriage may be dissolved by reason of his wife or her husband, as the case may be, having been guilty of adultery, cruelty or desertion, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion.
Amendment note: The words describing the petition were substituted by section 28 of the Indian Divorce (Amendment) Act, 2001 (Act 51 of 2001), with effect from 3 October 2001.
What Section 52 Means
The provision removes doubt about whether the spouses themselves may testify about cruelty or desertion in a divorce proceeding falling within Section 52. A husband or wife is not merely a competent witness; the section also states that the spouse is compellable to give evidence relating to the alleged cruelty or desertion.
In practical terms, "competent" means legally capable of giving evidence, while "compellable" means capable of being required by the court process to testify. The provision is important because allegations of cruelty or desertion commonly concern conduct and circumstances personally experienced by the spouses.
Relationship with Section 51 of the Divorce Act
Section 51 of the Divorce Act, 1869 addresses the mode of taking evidence. It provides for oral examination of witnesses where attendance can be had, permits a party to offer himself or herself as a witness, and deals with verification by affidavit subject to cross-examination where applicable. Section 52 specifically addresses spousal evidence concerning cruelty or desertion.
Current Evidence Law: Bharatiya Sakshya Adhiniyam, 2023
The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024 and now contains the general law of evidence. Section 124 states the general rule as to who may testify, while Section 126 provides that, in civil proceedings, the parties and the husband or wife of any party are competent witnesses. Section 128 deals with communications during marriage and contains an exception, among others, for suits between married persons.
Legal context: Section 52 is a specific provision of the Divorce Act concerning the spouses' competence and compellability to give evidence about cruelty or desertion. The Bharatiya Sakshya Adhiniyam supplies the broader current evidentiary framework. Questions about admissibility, proof, privilege, examination and evidentiary weight depend on the applicable statutory provisions and the facts of the proceeding.
Key Points
- Section 52 applies to the divorce petitions described in the provision.
- Both husband and wife are expressly made competent witnesses.
- They are also compellable to give evidence relating to cruelty or desertion.
- The present wording reflects the 2001 amendment to the Divorce Act.
- General evidentiary rules are now found in the Bharatiya Sakshya Adhiniyam, 2023, in force from 1 July 2024.
Official Legal Sources
For the authoritative statutory text and current legislation, refer to the official Divorce Act, 1869 on India Code and the Bharatiya Sakshya Adhiniyam, 2023 on India Code.