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Indian Divorce Act 1869

Indian Divorce Act, 1869

April 14, 2023

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This article is written by Upasana Sarkar, a student at Jogesh Chandra Chaudhuri Law College. This article provides a detailed understanding of the Indian Divorce Act, 1869, and how Christian couples residing in India can obtain divorce.

It has been published by Rachit Garg.

Introduction

The Indian Divorce Act, 1869, also known as the Divorce Act, 1869 was introduced to govern the divorce laws for Christian couples in India. It deals with the dissolution of marriage between a man and a woman in the Christian community. It is a codified Indian personal law. It states that when either the husband or the wife files a petition for divorce, the court of law grants separation in accordance with the provisions of this Act. The provisions of this Act deal with various rights after divorce, which include grounds for dissolution of marriage, custody of the child, alimony, distribution of property, visiting the child, and likewise. It also specifies the power of the courts and situations that can nullify the decree.

Background of the Indian Divorce Act, 1869

The Indian Divorce Act, 1869, amends the laws that govern the divorce of people who profess Christianity. The British had enforced this Act before independence. This Act came into effect on 1st April, 1869, and is applicable to the whole of India, though the state of Jammu and Kashmir is excluded. In India, the Hindus, Sikhs, Buddhists, and Jains are governed by the Hindu Marriage Act, 1955, the dissolution of Muslim marriages is governed by the Muslim Marriage Act, 1939, the Parsis are governed by the Parsi Marriage and Divorce Act, 1936, and inter-community by the Special Marriage Act, 1954. In the same way, parties professing Christianity and residing in India are administered by the Indian Divorce Act, 1869.

Grounds for dissolution of marriage

According to Section 10 of the Indian Divorce Act, 1869, it encompasses various grounds for dissolution of marriage. The wife or husband has to present a petition to the district court for a divorce. It is also necessary to file that petition in the court under whose jurisdiction they have formalised their marriage or in which they reside or have last resided together.

The various grounds under which a court can grant a divorce are as follows:

If either of the parties commits adultery; or
If either party ceases to be a Christian; or
If either party is of unsound mind for a period of two years; or
In case any of the party is suffering from a disease like leprosy or a venereal disease for a term of two years; or
If either of the parties willingly refuses to consummate the marriage; or
If either party desserts the other for a period of two years or more; or
In case any of the party treats another cruelly.

In addition to the above grounds, a wife is also allowed to file a petition for divorce if the husband is guilty of committing rape, bestiality, etc., after their marriage.

Different ways for obtaining divorce

Divorce by mutual consent of the parties

When the parties mutually agree to present a petition for divorce under Section 10A of the Indian Divorce Act, 1869, the court will regard it as a divorce by mutual consent. To get divorced under this heading, the parties filing the petition must have lived separately for at least two years. Otherwise, the court will not accept the petition. The couple has to prove the following factors, which are as follows-

They have been living separately, i.e., not as husband and wife, for a minimum of two years.
They are unable to stay with each other due to certain reasons.
They have mutually agreed to share those rights regarding custody of the children, property, and maintenance without any conflict.

Rights regarding maintenance

If the couple who are mutually filing for divorce have reached a consensus on the issue of maintenance or alimony, then they can easily obtain a divorce from the court. There is no maximum or minimum limit prescribed for maintenance.

Rights regarding the custody of the children

The rights regarding the custody of the children must be taken into consideration for those divorces that happen with mutual consent. The spouses can have joint, shared, or exclusive custody of the children with their mutual understanding.

Rights regarding property

The couple, with their mutual understanding, must decide who will enjoy which part of the property. The property includes movable as well as immovable property.

Divorce that is not by mutual consent

Either of the parties can present a petition for divorce under this Act. The various circumstances for which they can file for dissolution of marriage are as follows-

Petition filed by husband

A husband can submit a petition for divorce to the district court or the high court, pleading with the court to dissolve their marriage as his wife has been guilty of adultery since the solemnization of their marriage.

Petition filed by wife

A wife can submit a petition for divorce to the district court or the high court, pleading with the court to dissolve their marriage on the following grounds-

If her husband has professed a different religion by converting to any other religion for the purpose of profession.
If her husband has married another woman by following all the rituals.
If her husband has been guilty of adultery for a continuous period since the solemnization of their marriage.
If he is guilty of bigamy along with adultery.
If he has married another woman along with adultery.
If he is guilty of rape, sodomy, or bestiality.
If he is guilty of adultery along with cruelty, as in the case where he was not guilty of adultery, then also she would have been entitled to a divorce mensa et toro.
If he is guilty of adultery together with desertion without any sufficient and reasonable excuse for a term of two years or more.

Grounds on which a petition can be dismissed

The petition can be dismissed by the court under the following circumstances-

If proper evidence is not produced to the court, and the court is not satisfied with the evidence, or the case of the petitioner has not been proved, or
If the court is not satisfied with the evidence presented by the petitioner, which proves that the alleged had committed adultery since the solemnization of marriage, or
If the petition is filled or prosecuted in collusion with either of the respondents, or
In any other case, the petition shall be dismissed by the court.

If a district court dismisses a petition for divorce under this Act, a similar petition can be presented to the high court.

Decree for dissolution of marriage

If the evidence presented by the petitioner is proved, and the court is satisfied with the evidence, then the court will declare its judgement by stating that the marriage is dissolved. The court will not be obligated to pronounce its judgement under the following circumstances-

In case the petitioner has been found guilty of adultery, or
If the court finds that the petitioner has unreasonably delayed in presenting or prosecuting such petition, or
If the court finds that the petitioner has treated another party with cruelty, or
If the petitioner has willingly deserted or separated himself or herself from the other spouse before it has been proved that the other party is guilty of adultery and without a proper and reasonable excuse, or
If the petitioner willfully neglected the other party or did any misconduct towards the other party, which led to adultery by the other party.

Confirmation of dissolution of marriage

Any decree or judgement for the dissolution of marriage awarded by the district court needs to be confirmed by the high court.

Verification of decree by high court

The decree passed by the district court for dissolution of marriage shall be verified by the high court. If the panel consists of three judges, the majority opinion will be upheld. On the other hand, if the panel consists of two judges, then the senior judge’s opinion will be taken into consideration. If the high court wants to do further enquiry or obtain additional evidence, it can do that to its satisfaction. After enquiring and examining all the evidence provided to the high court by the district court, the high court will pass a decree affirming the decree for dissolution of marriage.

Decree of nullity of marriage

A marriage may be declared null and void under Section 19 of the Indian Divorce Act, 1869. Other than dissolution of marriage, this Act also has provisions regarding nullity of marriage. Either of the spouses can file a petition with the District Court or High Court, pleading that the court declare his or her marriage null and void. A marriage may be declared null and void on any of the following grounds-

The respondent was impotent at the time of solemnization of marriage and at the time of instituting the proceeding; or
The parties to the marriage are within the prohibited degrees of consanguinity or affinity; or
In case either of the spouses was lunatic or idiot during the time when marriage was solemnised; or
If, at the time the marriage was solemnised, the previous marriage of either of the spouses was in effect or the former husband or wife of either party was alive at the time of the marriage.

The high court may pass a decree of nullity of marriage in cases where the consent of either party to the marriage was obtained by force or fraud.

Judicial separation

Judicial separation may be granted by a court when either the husband or the wife files a petition for legal separation. Judicial separation is a situation when the marriage between the parties is not dissolved. The marriage continues to exist, and they are not free to remarry. Either of the spouses can apply for judicial separation on any of the following grounds-

Adultery; or
Cruelty; or
Deserted the other party for two years without any reasonable excuse.

If the district court or high court under whose jurisdiction the petition is filed is satisfied that the statements made in the petition are true, it will grant the decree for judicial separation under this Act.

Custody of children

When a divorce takes place without the mutual consent of the parties, the court will grant custody of the child after examining the capabilities of the father or mother as a parent to the child. In most of the families, where the mother is a housewife, custody of the child is given to her, and the father is directed to provide financial support and the occasional visits.

Alimony or maintenance

The court, while deciding the alimony that needs to be paid, takes into consideration the earning potential of the husband. The court sees whether the husband has the capacity to regenerate his fortune and his duties and liabilities. If the wife is economically dependent, then the property is given to her. The alimony is given to the spouse, dependent children and aging parents.

Judicial pronouncements

In the case of Major Frank Ralston Samuel Raj v. Kezia Padmini Swarna Pandian (2016), the husband presented an appeal against the petitioner, his wife, who had filed for restitution of conjugal rights. The Madras High Court observed that the parties had been living apart for more than fifteen years, so there was no emotional attachment between them. The wife had refused to consummate the marriage. The court held that a marriage can be dissolved under Section 10 of the Indian Divorce Act, 1869. If either party, after the solemnization of marriage, does not cooperate to consummate the marriage and therefore the marriage has not been consummated, the other is entitled to divorce.
In the case of Tomy Joseph v. Smitha Tomy (2018), the couple, by their mutual consent, filed a divorce petition in the family court. The court dismissed the petition on the ground that there is no provision to waive the six month period to file for dissolution of marriage under Section 10A of the Indian Divorce Act. The couple appealed to the Kerala High Court where the court held that divorce by mutual consent is secular in nature. There should not be any kind of discrimination on the basis of religion. The High Court waived the time for ‘cooling off’ for dissolution of marriage for a Christian couple.

The Indian Divorce (Amendment) Act, 2001

The Indian Divorce Act, 1869, was amended, and the new Act was introduced. This Act was repealed, and the Indian Divorce (Amendment) Act, 2001, was enacted with the assent of the President on 24th September, 2001. This amended Act not only revolutionised the Christian divorce laws but also made a positive impact towards the goal of a uniform divorce law. The Act was amended to have a uniform civil code for all the citizens of India. The objective can be achieved by reforming various personal laws.

Conclusion

The Indian Divorce Act, 1869, was considered outdated and harsh. So it was repealed as it discriminates on the basis of gender as well as religion. It was ultra vires to the Constitution of India, as it is against the right to equality. The Indian Divorce (Amendment) Act, 2001, was introduced to remove all this discrimination and provide a big step towards the goal of uniformity. It aims to provide a uniform divorce law for the whole country. This article highlights the historical background of the Act and how it applies to Christian couples in India. However, it should be noted that the Indian Divorce Act, 1869, has been repealed and replaced by the Personal Laws (Amendment) Act, 2019, which came into effect on 1st August, 2019. Therefore, the Indian Divorce Act, 1869, is no longer applicable for Christian couples seeking divorce in India.

Frequently Asked Questions (FAQs)

What is adultery?

Adultery is an act of indulgence in any kind of sexual relationship, which includes intercourse with any other person outside marriage. Adultery was considered a criminal offence before. But the criminality of adultery under the Indian Penal Code was struck down by the Supreme Court on 27th September, 2018. But a single act of adultery can be grounds for filing for divorce.

What is cruelty?

Cruelty includes both mental and physical injury that can cause danger to life, health, and limb. Mental cruelty is intangible in nature which is judged by looking into a number of incidents. Mental torture includes not giving food, continuously harassing for dowry, and likewise. Physical torture by the husband includes beatings, sexual abuses, etc.

What is a venereal disease?

A spouse can file for divorce if the other party is suffering from some kind of serious disease that is communicable in nature. AIDS (acquired immunodeficiency syndrome) is a sexually transmitted disease that is considered a venereal disease.

References

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Indian Divorce Act, 1869

Introduction

Background of the Indian Divorce Act, 1869

Grounds for dissolution of marriage

Different ways for obtaining divorce