Section 9 of the Divorce Act, 1869: Reference to High Court
Section 9 provides a procedural mechanism by which a District Court dealing with a suit under the Divorce Act, 1869 may refer a question of law, or a usage having the force of law, to the High Court for its decision.
What Section 9 provides
Reference to High Court. Where a question of law or a usage having the force of law arises before the hearing of a suit under the Act in a District Court, during a later stage of the suit, or during execution of the decree or order, the District Court may state the case and refer the question, together with its own opinion, to the High Court.
If the question arises before or during the hearing, the District Court may stay the proceedings or continue with the case while the reference is pending and may pass a decree contingent on the High Court's opinion.
Where a decree or order has already been made, execution is stayed until the High Court's order on the reference is received.
Meaning and scope of the provision
The section deals with a reference, not an ordinary appeal. Its purpose is to permit the District Court to obtain the High Court's decision when a qualifying legal question arises in proceedings under the Act. The statutory trigger is a question of law or a usage that has the force of law.
Who may initiate the reference?
The District Court may act on its own motion or on the application of a party. The court draws up a statement of the case, records its own opinion on the question and sends the reference to the High Court.
At what stage can Section 9 operate?
The wording is broad enough to cover a question arising before the hearing, at a later stage of the suit, or in execution of the decree or order. The procedural consequence differs depending on the stage at which the question arises.
Effect on pending proceedings and execution
- Before or during hearing: the District Court may stay the proceedings.
- Proceeding despite reference: it may instead continue and pass a decree made contingent upon the High Court's opinion.
- After decree or order: execution must remain stayed until the High Court's order on the reference is received.
Key expressions in Section 9
Question of law: a legal issue requiring determination of the applicable law, its meaning or legal effect. Usage having the force of law: a usage or custom that is legally recognized and enforceable, rather than a mere social practice. Statement of the case: the District Court's formulated statement setting out the relevant matter for the High Court's decision, accompanied by the District Court's own opinion.
Practical significance
Section 9 enables an authoritative ruling from the High Court on a legal question arising in a District Court proceeding under the Divorce Act. It also protects the effectiveness of that ruling by permitting a stay before decree and by requiring a stay of execution where a decree or order has already been made.
This page is a general explanation of the statutory provision and should be read with the current text of the Divorce Act, 1869 and applicable procedural law.