Section 40: Application of Act 5 of 1908
Special Marriage Act • Official Statutory Text & Practice Guide
Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1954
Special Marriage Act • Official Statutory Text & Practice Guide
Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (V of 1908).
40-A. Power to transfer petitions in certain cases
(1) Where
(a) a petition under this Act 0has been presented to the district Court having jurisdiction by a party to the marriage praying for a decree for judicial separation under section 23 or for a decree of divorce under section 27, and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for decree for judicial separation under section 23, or for decree of divorce under section 27 on any ground whether in the same district Court or in a different district Court, in the same State or in a different State,
the petition shall be dealt with as specified in sub-section (2).
(2) In a case where sub-section (1)
applies,
(a) if the petitions are presented to the same district Court, both the petitions shall be tried and heard together by that district Court;
(b) if the petitions are presented to different district Courts, the petition presented later shall be transferred to the district Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district Court in which the earlier petition was presented.
(3) In a case where clause (b) of sub-section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (V of 1908), to transfer any suit or proceeding from the district Court in which the later petition has been presented to the district Court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it has been empowered so to do under the said Code.
B. Special provision relating to trial and disposal of petitions under the Act
(1) The trial of a petition under this Act shall, so far as it practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(2) Every petition under this Act shall be tried as expeditiously as possible, and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.
C. Documentary evidence
Notwithstanding anything contained in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.
Legal Commentary & Landmark Judgments: Section 40
Section 40 establishes the procedural supremacy of the Code of Civil Procedure, 1908 in regulating all proceedings under the Special Marriage Act, subject to other provisions and High Court rules.
Utilize CPC procedural remedies effectively: file Order VII Rule 11 applications where the divorce petition lacks cause of action or violates Section 29, and seek amendment under Order VI Rule 17 to incorporate subsequent matrimonial developments.