Section 56 Divorce Act 1869 - Appeal to the Supreme Court

Section 56 of the Divorce Act, 1869 deals with appeals to the Supreme Court from specified decrees and orders under the Act. The provision excludes a decree nisi and requires the High Court to declare the case fit for appeal in the circumstances stated in the section.

Section 56 - Appeal to the Supreme Court

Statutory text: Any person may appeal to the Supreme Court from any decree, other than a decree nisi, or order under the Divorce Act, 1869 of a High Court made on appeal or otherwise, and from any decree, other than a decree nisi, or order made in the exercise of original jurisdiction by Judges of a High Court or of any Division Court from which an appeal does not lie to the High Court, when the High Court declares that the case is a fit one for appeal to the Supreme Court.

The words "the Supreme Court" were substituted by the Adaptation of Laws Order, 1950 for the former expression "Her Majesty in Council". The current official text of the Divorce Act, 1869 continues to set out Section 56 under the heading "Appeal to the Supreme Court".

Meaning and scope of Section 56

Section 56 provides a statutory route from qualifying decrees or orders under the Divorce Act, 1869 to the Supreme Court. It is not framed as an unrestricted appeal against every order. The nature of the decree or order, the court from which it originates, the availability of an appeal to the High Court, and the required declaration by the High Court must be considered.

Who may appeal: The section uses the expression "any person", subject to the legal requirements governing the appeal.
Orders covered: It refers to a decree or order under the Divorce Act made by a High Court on appeal or otherwise, and to specified decrees or orders made in original jurisdiction where no appeal lies to the High Court.
Decree nisi excluded: A decree nisi is expressly excluded by Section 56.
High Court declaration: The section requires the High Court to declare the case fit for appeal to the Supreme Court.

What is a decree nisi?

In the terminology historically used by the Divorce Act, a decree nisi is a provisional decree which does not by itself represent the final stage contemplated for dissolution. Section 56 expressly states that an appeal under this provision does not lie from a decree nisi.

High Court certificate and the Constitution

The statutory language of Section 56 should be read together with the constitutional framework governing the Supreme Court's appellate jurisdiction. Under Article 133 of the Constitution, an appeal in a civil proceeding may lie from a judgment, decree or final order of a High Court when the High Court certifies under Article 134A that the case involves a substantial question of law of general importance and that the question needs to be decided by the Supreme Court.

Article 134A governs consideration by a High Court of a certificate for appeal in cases falling within Articles 132, 133 or 134. Separately, Article 136 confers discretionary power on the Supreme Court to grant special leave to appeal from a judgment, decree, determination, sentence or order of a court or tribunal in India, subject to the constitutional exception relating to courts or tribunals constituted under laws relating to the Armed Forces.

Practical note: Section 56 should not be read as dispensing with the Constitution, the Supreme Court Rules, limitation requirements, or applicable filing procedure. The correct appellate route depends on the judgment or order proposed to be challenged and the procedural history of the case.

Related provision - Section 55

Section 55 of the Divorce Act, 1869 deals generally with enforcement of, and appeals from, orders and decrees under the Act. Section 56 specifically addresses the route of appeal to the Supreme Court.

Official legal resources

India Code - Divorce Act, 1869 official text Supreme Court of India - Jurisdiction Supreme Court of India - Supreme Court Rules Supreme Court of India - E-filing Supreme Court of India - Forms

Summary

Section 56 of the Divorce Act, 1869 concerns appeals to the Supreme Court from specified decrees and orders under the Act. A decree nisi is excluded, and the provision expressly contemplates a declaration by the High Court that the case is fit for appeal. In present practice, the statutory provision operates within the constitutional framework for Supreme Court appeals, including Articles 133, 134A and 136, together with the Supreme Court Rules and applicable procedural requirements.