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Section 9 of The Divorce Act, 1869

When any question of law or usage having the force of law arises at any point in the proceedings previous to the hearing of any suit under this Act by a District Court or at any subsequent stage of such suit, or in the execution of the decree therein or order thereon, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the case and refer it, with the Courts own opinion thereon, to the decision of the High Court. If the question has arisen previous to or in the hearing, the District Court may either stay such proceedings, or proceed in the case pending such reference, and pass a decree contingent upon the opinion of the High Court upon it. If a decree or order has been made, its execution shall be stayed until the receipt of the order of the High Court upon such reference.

Summary

If a tricky question about the law comes up during a case, a District Court can ask the High Court for the answer.
The District Court can decide to ask this question on its own, or either person involved in the divorce can request it.
To ask the High Court, the District Court must write a statement of the facts and include its own opinion on the answer.
If the case is still going on, the District Court can either pause the trial, or it can finish the trial and make a decision that will only be final if the High Court agrees.
If a decision or order was already made, the court must pause enforcing it until the High Court sends its answer.

Practical examples

1During a divorce trial, a judge is not sure how a new property rule applies. The judge writes down the details of the case, adds her own thoughts, and sends it to the High Court. She pauses the trial until she gets a reply.

2A husband asks the local judge to refer a legal question to the High Court. The judge agrees, finishes the trial, and issues an order that says "This order is only valid if the High Court agrees with my legal reasoning."

FAQ

1. What kind of questions can be sent to the High Court?

Only questions of law or usage having the force of law.

2. Who can suggest that a question be sent to the High Court?

The court can do it on its own, or any of the parties involved in the case can ask for it.

3. Does the District Court just send the question by itself?

No, the court must draw up a statement of the case and include its own opinion on it.

4. What happens if an order was already made before the High Court answers?

The execution (carrying out) of the order must be paused until the High Court sends its decision.

Test yourself

Q1.Under Section 9 of The Divorce Act, 1869, what happens to the execution of a decree if it has already been made while waiting for the High Court's answer?

Q2.Under Section 9 of The Divorce Act, 1869, what must the District Court include when it draws up the statement of the case to send to the High Court?

Q3.Under Section 9 of The Divorce Act, 1869, who is allowed to initiate the process of referring a question to the High Court?

Q4.Under Section 9 of The Divorce Act, 1869, if the question arises before the hearing finishes, what two options does the District Court have?

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