Indian Divorce Act 1869

The Indian Divorce Act 1869 governs divorce between Christian couples in India. Divorce is the legal termination of a marriage between a man and a woman. According to this law, separation is granted by the court based on the proposal of the wife or husband. Divorce is followed by the award of alimony, child custody and visitation, alienation of property and division of debts. Before deciding to divorce, Christian married couples should be aware of the fact of divorce proceedings in our country. The law contains provisions defining the powers of courts, grounds for dissolution of marriage, decree of nullity, custody of children, etc. In this article, we will look into detailed:-

The Indian Divorce Act 1869 – An Outline

The Indian Divorce Act was framed into the Indian legal system in 1869. In India, the rules and procedure for divorce vary according to the community of the married couple. As mentioned above, divorce among Christians is govern by the Indian Divorce Act 1869. Hindus, Buddhists, Sikhs and Jains governed by the Hindu Marriage Act 1955. Muslims governed by the Dissolution of Muslim Marriages Act 1939. Parsis governed by the Parsi Marriage and Divorce Act 1936 and civil and inter-community marriages are under the Special Marriages Act, 1956. The State of Jammu and Kashmir is excluded from the purview of this Divorce Act. Although residents of other States but domiciled in Jammu and Kashmir would entitled to rules and regulations.

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Grounds For Dissolution of Marriage Under Section 10

Section 10 of the Indian Divorce Act contains the grounds on which a court can dissolve a marriage. In order to use the divorce, the spouse must file a petition in the district court. This is basically the court in whose jurisdiction the parties concluded their marriage or live together or last lived together.

A court may grant a divorce on any of the following grounds:

a) When one of the parties commits adultery;

b) If the party ceases to be a Christian;

c) if the party is not in good standing for a period of two years;

d) if the party suffers from leprosy or venereal disease for a period of two years;

e) in the event that a party willfully refuses to enter into a marriage;

f) if the party has left the spouse for two years or more;

g) In case the party treats the spouse cruelly.

In addition to these grounds, the wife may file for divorce on other grounds. For example, she can ask for a divorce if her husband has committed rape, sodomy, etc. after marriage.

Divorce By Mutual Consent

When couples agree to divorce, the courts will consider divorce by mutual consent accordingly. Section 10A of the Indian Divorce Act 1869 requires the couple to have been separated for at least 2 years. The couple need only state that they have not lived as husband and wife during that period.

  • Couples should be separated for more than a year
  • The couple should be able to prove that they were unable to live together
  • Matters of child custody, alimony and property rights must be mutually agreed upon

Alimony or Maintenance Issues

There are three aspects that couples need to reach consensus on. One of them is alimony or child support. Under divorce law, there is no minimum or maximum support limit.

Custody of children

The second consideration will be the custody of children. Child custody in a mutual consent divorce may also be shared or joint or exclusive depending on the understanding of the spouses.

Property Rights

The third is property. Spouses must decide who will receive what part of the property (both movable and immovable property). Regarding bank accounts, everything needs to be divided.

Duration of Divorce

The length of divorce by mutual agreement ranges from 6 to 18 months, depending on the court’s decision.

Dissolution of Marriage (Divorce without Mutual Consent)

Petition by Husband

Any husband can apply to the District Court or the High Court praying that his marriage be annulled on the ground that his wife has committed adultery since the marriage. Under this law, such a marriage could be solemnized under the Christian Marriage Act.

Petition by Wife

Any wife can file a petition the District Court or the High Court for divorce. A wife may make such a motion under any of the following circumstances:

  • If her husband changed his Christianity to another religion
  • If the husband went through the form of marriage with another woman
  • If her husband has committed incestuous adultery since the marriage
  • In case of bigamy with adultery
  • In case of marriage with another woman with an adultery
  • In case of rape, sodomy or bestiality
  • In the case of adultery accompanied by such cruelty as would, without the adultery, entitle her to divorce and mensa et toro
  • In case of adultery accompanied by desertion without reasonable excuse for two years or more

Contents of Petition

Any such petition should contain, as distinctly as the nature of the case permits, the facts upon which the claim for dissolution of marriage is based.

Dismissal of petition

The court will reject the motion in any of the following cases:

  • In the event that the court does not comply with any proposal or does not prove the case of the petitioner
  • If the court is not convinced that the alleged adultery has been committed, it will find that the petitioner participated in the implementation of the mentioned form of marriage or in the adultery of the other party during the marriage. marriage or condoned the adultery complained of,
  • If the proposal is prosecuted in agreement with one of the respondents and in any of the cases mentioned, the court will reject the proposal.

When the District Court rejects the petition under this Act, the petitioner may submit a similar petition to the High Court.

Decree for Dissolving the Marriage

If the court agrees and if the evidence of the petitioner’s case is proved, the court will issue an order declaring the marriage divorced. According to this law, the court will not be obliged to issue such a resolution in the following cases:

  • If he finds that the petitioner has committed adultery
  • If the petitioner is guilty of unreasonable delay in filing or prosecuting such petition,
  • In case of cruelty towards the other party of the marriage
  • If he has deserted or willfully separated from the other party before the complaint of adultery and without reasonable excuse,
  • In the event of such willful neglect or misconduct towards the other party as has committed adultery

Confirmation of decree for dissolution

Any decree of dissolution of marriage issued by a District Judge will be subject to confirmation by the High Court.

Verification by High Court

The High Court will review cases to confirm a decree of annulment. If the court is composed of three judges, the opinion of the majority prevails, or in the case of a court composed of two judges, the opinion of the senior judge is accepted. If the High Court requires further investigation or further evidence, it may order that such investigation or evidence be carried out.

The result of the investigation and additional evidence will be confirmed to the High Court by the District Judge and the High Court will issue an order confirming the dissolution of the marriage.

Nullity of Marriage

Marriage is a sacred arrangement accepted and recognized by society and religion between a man and a woman who are called husband and wife. It is a religious sacrament sometimes called a covenant between a man and a woman to live together as husband and wife. The concept of holy matrimony gave it a religious sacramental status in the religion. In India, marriage also has legal status under various personal laws such as the Hindu Marriage Act 1955, the Parsi Marriage and Divorce Act 1936, the Indian Christian Marriage Act 1872.

There is also a special Marriage Act for certain marriages of 1954. According to Muslim law, marriage is a contract. Although marriage is a holy marriage for life, due to certain complexities and future developments in modern society, there are legal grounds for ending a marriage or annulment. A marriage annulment is a legal declaration by a court that a marriage between two people did not exist and the marriage was not valid. It is a statement that assumed the marriage never took place.

A marriage annulment is a court declaration that the marriage did not exist. It concerns the validity of marriage under the law. It means that there was no valid marriage between the parties.

Nullity of Marriage Under Hindu Law

For Hindus, according to the smrities, marriage is a necessary sanskar. It is man’s duty to do this. Marriage was indissoluble and necessary for the exercise of religious and spiritual responsibility. Before the Parliamentary enactment, there was no concept of end of marriage or nullity of marriage under Hindu personal law and marriage was considered to be holy and fixed for life. But after the enforcement of the Hindu Marriage Act, 1955, there are certain grounds on which a marriage will be declared void. These grounds are set out in clause (i), (iv) and (v) of Section 5 of the Hindu Marriage Act, 1955. These grounds are as follows:

  • If either party has a living spouse at the time of the marriage, i.e. bigamy
  • If the marriage is between the prohibited degrees of relationship, if customs and usages are not permitted,
  • If the marriage is between sapindas, unless customs and usages are permitted, such marriage
  • A sagotra marriage is valid under the Hindu Marriage Act, 1955

There are also voidable marriages that are valid until declared void. A voidable marriage will be annulled by a decree of nullity under Section 12 of the Hindu Marriage Act, 1955. The parties can continue the marriage or dissolve the marriage by a court order. The reasons are as follows

  • Impotence of the respondent
  • Incapacity to give valid consent or enforced consent of the parties or mental illness or a person incapable of procreating a child
  • Underage marriage
  • If the respondent was pregnant by another person at the time of the marriage.

Nullity of Marriage Under Muslim Law

According to Islam, marriage is an indissoluble union unlike Hinduism where marriage is indissoluble. According to Muslim personal law, marriage is considered as a contract where valid consent of both parties is required and “mehar” is also decided. Thus, annulment of marriage is also permitted in both Sia and Sunni sects. Under the Muslim Marriage Dissolution Act 1939 and under the Personal Law, a marriage without valid consent of the parties or their guardian is void. There are also some other grounds on which a marriage can be declared void. These reasons are as follows:

  • An interfaith marriage of a woman has no religious status. A Muslim man also cannot marry a woman who does not follow isalm.
  • Marriage between milk relative or ‘mahari’ close blood relatives.
  • Marriage to a person who has renounced Islam or does not believe in the principles of Islam.
  • A temporary or conditional marriage is invalid in Sunni.
  • Marriage to a woman during the period of iddat.
  • Where the conditions of marriage are against the principle of Islam.

Nullity of Marriage Under Christian Law

With the development of Christianity, the status of marriage also changed. In Christianity, marriage is also indissoluble and holy and has made it a public religious ceremony. Therefore, it is difficult to declare the marriage invalid. But with the development of society and removal of discrimination against Indian Christians, there is a separate marriage law Indian Christian Marriage Act 1872 and for their divorce or nullity of marriage there is also Indian Divorce Act 1869. This Act was amended in 2001. Under this Act it can be marriage declared void:

  • The respondent was impotent at the time of the marriage and at the time of the trial,
  • Each party has a living spouse at the time of the marriage and this marriage is valid, i.e. bigamy
  • Marriage between persons within a prohibited degree of consanguinity or consanguinity
  • Both parties were insane or idiotic at the time of the wedding.

According to the Indian Divorce Act 1896, consent is not a ground for annulment of marriage.

Petition for Decree of Nullity

Any husband or wife can apply to the District Court or the High Court praying that their marriage may be declared void. A decision of invalidity will be made on the following grounds :-

  • The respondent was essential at the time of the marriage and at the time of the commencement of the suit
  • Couples are within prohibited degrees of consanguinity or affinity
  • In case one of the parties was a fool or an idiot at the time of the marriage
  • In the event that a former spouse of one of the parties was living at the time of the ceremony and the marriage to such former spouse was then valid.

Nothing in this section shall affect the jurisdiction of the High Court to grant a declaration of nullity of marriage on the ground that the consent of one of the parties was obtained by force or fraud.

Confirmation of Decree of Nullity

Any dissolution of marriage issued by a District Judge will be subject to confirmation by the High Court.

Restitution of Conjugal Rights

The law also contains a provision for restitution of conjugal rights under Section 32. Under this provision, a party can seek restitution if their spouse withdraws from their company. Under restitution, the marriage remains, but both parties temporarily do not have all marital rights.

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Documents Required to File Divorce in India

To apply for divorce in India under the Indian Divorce Act 1869, the following documents must be submitted:-

  • Address proof of husband
  • Address proof of wife
  • Marriage Certificate
  • Four passport size photographs of the marriage
  • Evidence for proving spouses are living separately since more than a year
  • Evidence of the failed attempts of reconciliation
  • Income tax statement for the last two to years
  • Details of the profession and present remuneration
  • Information relating to family background
  • Details of property and other assets owned by the petitioner

Procedure for Filing a Divorce

The procedure for filing a petition for divorce in India is generally governed by the provisions of the Code of Civil Procedure, 1908. The procedure for filing a petition for divorce is initiated by filing a petition followed by affidavits of both partners in the District Court.

The petition must contain the following information:-

  • Name of the parties
  • Status and domicile of the parties
  • Date and place of marriage
  • A principal permanent place where the parties cohabit
  • Place where the parties last resided together
  • Names of the children of the marriage( if any) with the date of birth
  • The ground of seeking divorce or separation
  • The facts and details by which the petitioner seeks the relief
  • That the parties are not deceiving the court by collaborating
  • The averments made are verified after six months couple has to re-appear in the front of court after filing a second motion petition for mutual consent divorce.
  • After hearing from both the husband and wife, if the judge satisfy that all essential grounds are filing the recruitments and meeting the needs of divorce, the couple grants a mutual divorce decree.
  • Custody of child, alimony to wife and litigation expenses will be considered on issuing a decree for divorce.

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