legal history
DESCRIPTION
Indian Divorce Act,1869TRANSCRIPT
INDIAN DIVORCE ACT, 1869
LEGAL HISTORY
SUBMITTED BY:
R. Sai Sri Lekha
Roll No: 2013088
II Semester
DAMODARAM SANJIVAYYA NATIONAL LAW
UNIVERSITY, VISAKAPATNAM
ANDHRA PRADESH
0
TABLE OF CONTENTS
S.No Content Pg.No
Aknowledgement
Abstract
0. Introduction 2
1. Hindu Divorce Law 3-4
2. Mohamedan Divorce Law 4-5
3. Parsi Divorce Law 5-6
4. Christian Divorce Law 6-8
5. Indian Divorce Act, 1869
5.1 Evolution of the Act
5.2 Amendments to the
Act
8-15
6. Bibliography 16
0. INTRODUCTION
1
While marriage law has been quite prominent in India family law cases, litigation has almost always
involved other legal problems concerning the status of the female spouse, her financial entitlements,
or inheritance rights. The legal recognition of customary marriage arrangements also often relates
closely to bigamy, maintenance law, succession, or joint family property. As a result, there is much
fuzziness over what is actually meant by ‘marriage law’. To clarify this term, it is necessary to
distinguish the process of marriage itself, i.e. marriage solemnization and registration, from the
social consequences of marriage. Many of the latter are of not central concerned, but have given rise
to the comments about marriage traditions and their legal relevance. The solemnization of marriage
is first of all a matter of social conventions and ritual elaboration, involving the dramatization of
social norms and all kinds of related beliefs. In the traditional system of marriage, there was no role
for the state, as marriage remained a private affair within the social realm. In the traditional system,
the solemn performance of a long sequence of traditional marriage rituals was assumed to evoke
mental awareness of being married, both for the spouses concerned and for those who celebrated the
marriage with them and witnessed it. The society, and not the state, legitimized and publicly
‘registered’ all proper marriages. Once the British became involved in the administration of law and
sought fixed rules, it became an issue of central importance for lawyers how such marriages are
solemnized and legally validated. A marriage of any kind can be nullified or terminated by applying
for divorce.
Divorce is the golden key to the legal cage of marriage. The term ‘divorce’ comes from the
Latin word divortium which means to turn aside or to separate. It is the legal cessation of a
matrimonial bond. Divorce was introduced in to the subject of Law for the protection of helpless
women when they were ill-treated. It was never parliament’s intention to give husbands matrimonial
variety at their option so long as they could retain a pleader. It cannot however, be denied that
divorce is not a panacea for all matrimonial problems and should be resorted to only as an
emergency exit from an unbearable situation as a lesser necessary evil.
There are different laws of divorce for different religion. Hindus (which includes Sikh, Jain, Budh)
are governed by Hindu Marriage Act, 1955.Christians are governed by Indian Divorce Act-
1869 & The Indian Christian Marriage Act, 1872.Muslims are governed by Personnel laws of
Divorce and also the Dissolution of Marriage Act, 1939 &The Muslim Women (Protection of Rights
on Divorce) Act, 1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936.
And there is also a secular law called Special Marriage Act, 1954.
2
1. HINDU DIVORCE LAW
The complex subject area of Hindu divorce law is a huge topic to which a separate monograph could
be devoted. It involves so many services relevant to present debate it will be necessary to focus on
some aspects only. Detailed analysis of traditional Hindu divorce law is complicated by the fact that
they are having and is still are two contradictory understandings of “tradition” in this field. On the
one hand, the dominant view among the scholars has been that classical Hindu law did not permit
divorce, mainly because it infringed the ideal of sacramental marriage, seen as the central foundation
of Hindu family law. At the same time, there is much evidence of the long established existence of
various ancient customary forms of divorce, among Hindus. While the British colonial regime
hesitated to get involved in this touch subject, it is broadly accepted that the axiom that Hindus have
no right to divorce. However, while British India experienced timidity towards law-making in this
area, several princely states introduced pioneering divorce reforms, making this remedy formally
available to Hindus on specific grounds and in certain situations. Eventually, the post-colonial
construction of knowledge about a ‘traditional’ and ‘religious’ Hindu divorce law which simply did
not permit divorce motivated reformers to demand wide-ranging grounds for divorce among Hindus.
The Indian legislature moved cautiously, though, partly because during the 1950s divorce was also
not accepted so freely in England, which continued to constitute a guiding model for reformers
during that time.1
However, given that customary divorces were available to virtually all Hindus, the alleged
restrictiveness of the old law led to confused modernist analysis over the pace and direction of Hindu
divorce law reforms. Officially, it has concentrated on the effects of formal state interventions,
viewing legal reform as liberating for spouses. In some princely states, it was possible to introduce
some reforms to Hindu divorce law, even though there, too, orthodox resistance was felt. There were
various grounds on which the dissolution of marriage was allowed. They are listed as follows:
1. Disappearing for seven years or more
2. Becoming a recluse,
3. Changing his/her religion by conversion,
4. Being guilty of cruelty so as to cause danger to (a)life, (b)limb, or (c)bodily or mental health
so as to give rise to reasonable apprehension of such danger;
5. Committing adultery, or
6. Marrying second time during the lifetime of the petitioner.
1 Werner F. Menski, Hindu Law, Oxford India Paperbacks (Delhi, 2008) Pg no.427
3
The formal Hindu divorce law is introduced in Section 13 of the Hindu Marriage Act, 1955 which
lays a detailed set of rules. 2According to Section 13 of the Act, Any marriage solemnized, whether
before or after the commencement of this Act, may, on a petition presented by either the husband or
the wife, be dissolved by a decree of divorce on the ground that the other party :-
(i) Has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or
(ii) Has ceased to be a Hindu by conversion to another religion; or
(iii) Has been incurably of unsound mind, or has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent.
2. MAHOMEDAN LAW OF DIVORCE
There are different ways in which marriage may be dissolved in the Mahomedan law. They are listed
as follows:
(1) Husband divorcing wife (Talak):- Under Mahomedan law it is open to the husband to divorce
his wife without intervention of court and without assigning any reason for his action. This is
a unique feature of the mahomedan law.
(2) This arbitrary power of the husband is in practice controlled by certain safeguards. There are
three modes in which the husband can exercise his power of divorcing his wife :-
(a) The most proper method affords him sufficient opportunity to reconsider his decision and
revoke it if he had hastily decided upon divorce. In this method he pronounces divorce
during a tuhr, i.e., the interval between two menstruations.
(b) He can pronounce Talak even when his wife is in her menses. Pronouncing Talak means
declaring his intention to divorce wife. The presence of the wife is not necessary for this
purpose.
2 SubbaRao G.C.V, Family Law in India, S. Gogia & Company ( Hyderabad, 2006) Pg. no 213
4
The declaration should name the wife i.e., refer to the wife by name, and make it clear
that the marriage is dissolved. The declaration may be oral or in writing. Shia Law does
not allow talak to be effected by writing.
(c) The second method is Talak hasan. In this the Talak is pronounced during a tuhr. During
the next tuhr a second pronouncement is made. There should be abstinence from sexual
intercourse during all this time. When the third pronouncement is made Talak becomes
irrevocable. It is not necessary to wait for the whole period of Iddat for the Talak to
become completed. That is why this is not the most proper method.
(d) Third method is not approved by the Islamic theology. It is called heterodox divorce. This
is not recognised by Shia Law at all. Sunnis, however, allow this and in fact it has become
the common form among them. In this method there is no waiting period like in the
second method. In this it is irrevocably said by the husband to the wife “I divorce you by
a Talak-ul-bain”.
(3) Husband to wife divorcing by mutual consent
(a) Khula (to put off) – The wife being dissatisfied with her husband may offer to compensate
the husband for releasing her from the marriage contract. If the husband accepts the offer then
there is an immediate irrevocable divorce.
(b) Mubara’at divorce – In this method also there is mutual consent or agreement for divorce.
But here the dissatisfaction is mutual while in Khula it is only felt by the wife.
3. PARSI LAW OF DIVORCE
Zoroastrianism is an ancient religion that was founded sometime in 6 th century BC in Iran/Persia. At
one time it had among the largest followers in the world. After the end of the Persian Sassanid
Empire in 651 AD, the popularity of Zoroastrianism started declining. Zoroastrians follows the
teaching of the prophet Zoroaster. Zoroaster wrote the Yasna Haptanghaiti (7 hymns) and Gathas (5
hymns) which are sacred to Zoroastrians. Today the two largest sects of Zoroastrians are
Parsis/Parsees and Iranis. It is estimated that there are between 150,000 – 210,000 Zoroastrians
throughout the world3.
Majority of Zoroastrians/Parsis live in India followed by USA. Within India, majority of Parsis live
in Mumbai/Bombay.
3 Parsi Marriage and Divorce Act, http://mymarriagewebsite.com/indian-marriage-law/parsi-marriage-and-divorce-act-1936/ last seen at 2:45 PM, 27th March 2014
5
It is estimated that the Parsis came to India either in the middle of the 8 th century AD or in the
middle of the 10th century. In order to escape persecution in Persia, Zoroastrians/Parsis reached
Gujarat and sought refuge from the local king. Early Parsi settlements were in Sanjan and Navsari.
Parsi Marriage and Divorce Act 1936 – Marriage Law For Indian Zoroastrians, Parsis, Iranis4
This is the act that governs marriage and divorce among members of the Parsi and Irani community
in India. It is applicable throughout India, except in Jammu & Kashmir. Some salient features of the
act are as follows:
Parsi wedding has to be solemnized as per the “Ashirvad” tradition in the presence of a Parsi
priest or Parsi Dastur or Mobed. 2 witnesses should be present at the time of the marriage.
The Parsi Priest/ Dastur/Mobed who conducts the wedding should issue a wedding certificate
signed by the priest, the couple and two witnesses.
All Parsi/Irani/Zoroastrian weddings have to be registered with the marriage registrar.
Noncompliance can lead to a fine and even imprisonment.
Only Parsi men over the age of 21 and Parsi women over the age of 18 can marry.
Marriage is not allowed between blood relatives. The act list 33 relatives that neither a Parsi
man nor woman can marry.
Bigamy and Polygamy are not allowed.
The act also states dos and don’ts for the Parsi Priest/ Dastur/Mobed, couple and witnesses.
The act also covers divorce between Parsi couples.
2. CHRISTIAN LAW OF DIVROCE
The British colonization in India, has had a tremendous impact on the legal system in India. In many
respects, English law in letter and spirit came to be applied in India. Even when the law relating
to Christian marriage was still in a fluid state, British Indian Administration thought it necessary to
bring in a law for divorce among Christians. They thought that the English law on the subject,
the Matrimonial Causes Act of 1857 with necessary modifications, could be applied in India.
Thus, the Indian Divorce Act 1869 came to be enacted in India by the Governor General in Council
and applied to the Christians throughout India except Princely
States, Portuguese and French settlements and certain tribal areas. Subject to such exceptions,
generally speaking, the Indian Divorce Act, 1869 is the law of divorce for Christians in India. The
4The Parsi Marriage and Divorce Act, 1936, Accessed at: http://bdlaws.minlaw.gov.bd/pdf_part.php?id=168, last seen: 2:05 PM 27th February, 2014
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Indian Divorce Act was enacted in 1869 to "amend" the then existing law on divorce and
matrimonial causes of Christians, and to confer jurisdiction upon the High Courts and District
Courts in matters matrimonial5. It does not appear to be a comprehensive legislation on the subject.
This is evident from the Preamble to the Indian Divorce Act, 1869 which states: "Whereas it is
expedient to amend the law relating to the divorce of persons professing the Christian religion, and to
confer upon certain court’s jurisdiction in matters matrimonial…”
It is pertinent to note that it was not to 'make' or 'consolidate' the law, but to 'amend' the law that the
Act was passed. This means that there was some law then existing and the Divorce Act was to be
part of that law.
The grounds for filing a divorce in Christian law are similar to that of the Hindu divorce law
i.e., adultery, cruelty, mutual consent, etc. Either of the partners can make a petition for dissolution
of marriage on the grounds that cohabitation is not existing for more than 1 year. The Competent
court shall decide on the custody of the child depending on the age of child, capacity of either
parents, willingness of the child, etc. The law for Christians with regard to dissolution of marriage
provided under the Divorce Act, 1869, was amended in 2001 and number of amendments made
therein and one of this was insertion of section 10A. Dissolution of Marriage by mutual consent. The
separate living for the couples seeking divorce under this provision is definitely two years whereas
for couples seeking divorce by mutual consent under the Hindu Marriage Act, 1955 or the Special
Marriage Act, 1954 is oneyear.
Now here the confusion which is always raised by couples who seek divorce by mutual consent
is that they want to dissolve their marriage under such provision but they are residing at the same
place or same house. The Supreme Court of India had held that "The expression 'living separately'
connotes not living like husband and wife. It has no reference to the place of living.
The parties may live under the same roof and yet may not be living as husband and wife. The parties
should have no desire to perform marital obligations."
GROUNDS FOR DISSOLUTION OF MARRIAGE
5 SubbaRao G.C.V, Family Law in India, S. Gogia & Company ( Hyderabad, 2006) Pg. no 408
7
A husband may present a petition for dissolution of marriage on the ground that his wife has been
guilty of adultery, since solemnisation of marriage. The petition may be presented to district court or
the High Court having jurisdiction.
A wife may present a petition for dissolution of marriage on the ground that, since the solemnization
thereof, her husband
(i) Has exchanged his profession of Christianity for the profession of some other religion, and gone
through a form of marriage with another woman; or
(ii) Has been guilty of incestuous adultery, or
(iii) Has been guilty of bigamy with adultery, or
(iv) Has been guilty of marriage with another woman with adultery, or
(v) Has been guilty of rape, sodomy or bestiality, or
(vi) Has been guilty of adultery coupled with such cruelty as without adultery would have entitled
her to a divorce a mensa et toro, or
(viii) Has been guilty of adultery coupled with desertion, without reasonable excuse, for two years or
upwards.
There grounds for dissolution of marriage are mentioned in Section 10 of The Indian Divorce Act,
1869. According to that particular section, 6
10. When husband may petition for dissolution. - Any husband may present a petition to the District
Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife
has, since the solemnization thereof, been guilty of adultery. When wife may petition for dissolution.
When wife may petition for dissolution.- Any wife may present a petition to the District Court or to
the High Court, praying that her marriage may be dissolved on the ground that, since the
solemnization thereof, her husband has exchanged his profession of Christianity for the profession of
some other religion, and gone through a form of marriage with another woman; or has been guilty of
incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or
of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would
have entitled her to a divorce a mensa et toro, or of adultery coupled with desertion, without
reasonable excuse, for two years or upwards. Contents of petition. Contents of petition. -- Every such
6 Indian Divorce Act, 1869 Section 10 of the Bare Act
8
petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have
such marriage dissolved is founded.
5. INDIAN DIVORCE ACT, 1869
5.1 EVOLUTION OF INDIAN DIVORCE ACT, 1869
After going through a gamut of paperbacks, articles and websites it is much evident that the Indian
Divorce Act, 1869 was enacted for providing divorce laws for the Christianity religion. It was
WhitelyStokes who framed the Bill on Indian Divorce. The Draft of the Bill was submitted to the
several High Courts for their opinion and the communications received from the Judges at Calcutta
and Bombay were laid before the Council of the Governor–General. Sir Henry Maine originally
introduced the Bill on the 24 December 1862. While introducing the Bill, Sir Henry Maine stated in
the Legislative Council thus: "This measure is obviously one of great importance…. It is
substantially a consolidation measure.
It puts together the English Statute Law on the subject in a more orderly form and in clearer
language, and it incorporates the recent decisions of the Divorce Court. But in the main its principles
are those of the Statute regulating the jurisdiction of the English Court of Divorce and Matrimonial
Causes" "It is also to give effect to the policy embodied in the High Courts Act passed in 1861, (24
and 25 Vict. Ch. 104) and to the Letters Patent issued by Her Majesty for constituting the High
Courts. The object of the High Court’s Act seemed to have been not so much to create new branches
of jurisdiction, as to constitute and redistribute the power, which already existed. The 9th clause gave
power to Her Majesty to confer on the High Courts such matrimonial jurisdiction as she thought fit;
but Her Majesty did not attempt to confer on the High Courts such jurisdiction as was exercised by
the Divorce Court in England.
The Secretary of State, therefore, requested the Governor-General to introduce a measure conferring
a jurisdiction on the High Courts in India similar to that exercised by the Divorce Court sitting in
London. Hence the Act." The Bill, after remaining for seven years before the Council of the
Governor-General, received the assent of the Governor-General, on 26 February 1869.7
The object of the above measure was to place the matrimonial law administered by the High Courts,
in exercise of their original jurisdiction, on the same footing as that of the matrimonial law
administered by the Court for Divorce and Matrimonial Causes in England.
7 Christian Divorce Law, http://en.wikipedia.org/wiki/Christian_Personal_Law, last seen at 3:00 PM 27th February 2014
9
In other words, the High Court should have the same jurisdiction as the Court for Divorce and
Matrimonial Causes in England established under the Matrimonial Causes Act, 1857 and in regard to
which further provisions were made by the Matrimonial Causes Act, 1859, and the Matrimonial
Causes Act, 1860.8 It was further specified that by vesting the High Court with powers of the Court
for Divorce and Matrimonial Causes in England, it was not intended to take away from the courts
within divisions of the Presidency not established by Royal Charter any jurisdiction which they had
in matters matrimonial. For example, a suit based on the ground of non-observance of the essential
ceremonies of marriage was still to be instituted in the ordinary court of civil jurisdiction and not in
the High Court. Whereas, when a marriage is solemnized outside India, the matrimonial courts in
India have no jurisdiction to grant a decree of nullity. In such cases, the jurisdiction of the civil court
to entertain a suit for declaration that the marriage is a nullity, is not barred by the provisions of the
Act. The Civil Court can grant such a relief under section 42 of the Specific Relief Act, because it
involves the adjudication of a status. Moreover, the jurisdiction of the matrimonial courts under this
Act does not extend to entertain a suit for a declaration that a certain marriage is valid.
Further, when a marriage is void under the provisions of sections 4 and 5 of the Indian Christian
Marriage Act of 1872, again it is the ordinary court of civil jurisdiction that should be moved for a
decree of nullity of marriage and not the matrimonial court under the Indian Divorce Act, 1869. But
in the course of an adjudication of matrimonial dispute, if the validity of a marriage is challenged
otherwise than under the provisions of the Indian Divorce Act, the matrimonial court is not precluded
from looking into the validity or otherwise of a marriage. However, by virtue of the provisions of
Explanation (b) of section 7 of the Family Courts Act, 1984, the jurisdiction of the Civil Courts in
matters matrimonial is now being exercised by the Family Courts in India. The above fact situation
would show that the Divorce Act of 1869 is not to be construed as a comprehensive legislation in
these matters.
The Draft of the Bill had been prepared to give effect to the Secretary of State's instruction, but some
variations from the English Statutes in respect of procedure have been adopted.
For the purpose of uniformity in procedure in the several branches of jurisdiction, the Bill provided
for adoption of the procedure of the C.P.C, instead of the Rules of Her Majesty's Court for Divorce
and Matrimonial Causes in England, as is evident from section 45 of Divorce Act of 1869.
Now, therefore, it emerges that the courts in India were to grant relief based on the
principles and rules of the Court for Divorce and Matrimonial Causes in England; and the English
8 Christian Divorce Law, http://en.wikipedia.org/wiki/Christian_Personal_Law, last seen at 3:00 PM 27th February 2014
10
Courts, in turn, were to follow the principles and practice of the old Ecclesiastical Courts. In other
words, the Courts in India granted relief in matrimonial causes (under the Indian Divorce Act, 1869)
on the basis of the principles evolved by the old Ecclesiastical Courts in England. Question arose as
to what extent those principles can be applied here. It was held that in all matters, which are provided
for in the Code of Civil Procedure, the Courts must regulate their procedure in accordance with the
provisions contained therein. But in the absence of any provision on the subject in the Code of Civil
Procedure, the Courts in this country are to follow as nearly as may be, the practice of the English
Courts, and the decisions of those courts are to be taken as a guide to the Courts in India, under the
Divorce Act of 1869. The Supreme Court also had an occasion to dwell on the applicability of
English law in these matters. The Supreme Court held that the rules laid down by the House of Lords
would provide the principles and rules, which the Indian Courts should apply to cases governed by
the Indian Divorce Act. But the Court asserted that it was unthinkable that legislation whenever
made by the Parliament of a foreign state should automatically become part of the law of another
sovereign state. According to it legislation by incorporation can never go that far.
The Kerala High Court also has had several occasions to deal with the question while tackling
intricate issues in matrimonial matters and took recourse to the Principles of English Divorce Courts
and granted relief. However, with the 2001 amendment of the Divorce Act of 1869, section 7 is
deleted, but no guiding principles are incorporated to fill the vacuum.
Since 1869, the Indian Divorce Act did not undergo any major change and thus Christian law on
divorce in India remained embedded on the principles of Victorian vintage for more than a century
and a quarter. Even though there were pressing demands to update the law to be in tune with the
times, both in and out of Parliament at least from 1962 onwards nothing worthwhile could be done
for about half a century. While so, the Law Commission of India in its 164th Report on "The Indian
Divorce Act (IV of 1869)" presented to the Government in November, 1998 has, inter alia,
recommended that Parliament may enact a comprehensive law governing marriage and divorce and
other allied aspects of the Christians in India9.
The Commission, relying on the judgments and observations of certain High Courts, has also urged
the Central Government to take immediate measures to amend section 10 of the Indian Divorce Act,
1869 relating to grounds of dissolution of marriages so that the female spouses are not discriminated
vis a vis male spouses in obtaining a decree of dissolution of marriage.
9 Christian Divorce Law, http://en.wikipedia.org/wiki/Christian_Personal_Law, last seen at 3:00 PM 27th February 2014 SubbaRao G.C.V, Family Law in India, S. Gogia & Company ( Hyderabad, 2006) Pg. no 280
11
The Commission also urged the Government to amend suitably sections 17 and 20 of the Act to do
away with the procedural requirement of obtaining confirmation from the High Court in respect of a
decree of dissolution of marriage or decree of nullity of marriage, as such procedure is a long-drawn
and strenuous one as is provided in the Indian Divorce Act, 1869, so as to remove the hardships of
all concerned.
The Act was to amend the law relating to Divorce and Matrimonial Causes 2. It was called the
Indian Divorce Act, and was put into operation on the first day of April, 1869 and it was extended to
the whole of India except for the state of Jammu and Kashmir.
5.2 AMENDMENTS TO THE INDIAN DIVORCE ACT, 1869
In order to give effect to the recommendations of the Law Commission of India in its 164th Report
and the recommendations of the Commission on Review of Administrative Laws, at last, the Indian
Divorce (Amendment) Act, 2001 has been enacted. It received the President’s assent on 24 th
September 2001 and came in to force on 3rd October 2001 when it was notified through gazette.
Now, therefore, the intention of the legislature in bringing out the Indian Divorce (Amendment) Act,
2001, is to be ascertained with the aid of this background of the law. However, it is made clear that
the amendment has no retrospective operation.
There are certain noteworthy deletions from the Act. Nearly 32 changes have been made to the
Principal Act. The following are the major changes.
1. In the title of the Indian Divorce Act the word “Indian” is omitted.
2. Section 3 (6) and (7) which explain the terms ‘incestuous adultery’ and ‘bigamy with
adultery’ are omitted, as there expressions do not occur in the amended Act in the changed
Section 10.
3. Section 7, which required that the “courts to act on principles of English Divorce Court” is
omitted.
4. A new Section 10 is substituted for the old section, which had created dissensions. The
discriminatory aspects of divorce are removed. The grounds of divorce are expanded on the
similar lines as that of Special Marriage Act and Hindu Marriage Act. Same grounds of
divorce are recognised for husband and wife.10
10 SubbaRao G.C.V, Family Law in India, S. Gogia & Company ( Hyderabad, 2006) Pg. no 281
12
Adultery, conversion, unsound mind, virulent and incurable leprosy, suffering from venereal
disease in a communicable form, not heard for seven years, wilful refusal to consummate the
marriage, failure to comply with the decree of restitution of conjugal rights, desertion and
cruelty are recognised as the grounds of divorce. Wife is given one more ground for the
dissolution of marriage on the ground that the husband is guilty of rape, sodomy and
bestiality. Consequential changes that are necessary in view of insertion of new Section 10
are made elsewhere in the amended Act. Section 10 prior to the amendment said, 10. When
husband may petition for dissolution. - Any husband may present a petition to the District
Court or to the High Court, praying that his marriage may be dissolved on the ground that his
wife has, since the solemnization thereof, been guilty of adultery. When wife may petition for
dissolution. When wife may petition for dissolution.- Any wife may present a petition to the
District Court or to the High Court, praying that her marriage may be dissolved on the ground
that, since the solemnization thereof, her husband has exchanged his profession of
Christianity for the profession of some other religion, and gone through a form of marriage
with another woman; or has been guilty of incestuous adultery, or of bigamy with adultery, or
of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of
adultery coupled with such cruelty as without adultery would have entitled her to a divorce a
mensa et toro, or of adultery coupled with desertion, without reasonable excuse, for two years
or upwards.
Contents of petition. Contents of petition. -- Every such petition shall state, as distinctly as
the nature of the case permits, the facts on which the claim to have such marriage dissolved is
founded. And after the amendment it said
10. Grounds for dissolution of marriage,- (1) Any marriage solemnized, whether before or
after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition
presented to the District Court either by the husband or the wife, be dissolved on the ground
that since the solemnization of the marriage, the respondent-
(i) Has committed adultery; or
(ii) Has ceased to be Christian by conversion to another religion; or
13
(iii) Has been incurably of unsound mind for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(iv) Has, for a period of not less than two years immediately preceding the presentation of the
petition, been suffering from a virulent and incurable form of leprosy; or
(v) Has, for a period of not less than two years immediately preceding the presentation of the
petition, been suffering from venereal disease in a communicable form; or
(vi) Has not been heard of as being alive for a period of seven years or more by those persons who
would naturally have heard of the respondent if the respondent had been alive; or
(vii) Has wilfully refused to consummate the marriage and the marriage has not therefore been
consummated; or
(viii) Has failed to comply with a decree for restitution of conjugal rights for a period of two years
or upwards after the passing of the decree against the respondent; or
(ix) Has deserted the petitioner for at least two years immediately preceding the presentation of the
petition; or
(x) Has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of
the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
(2) A wife may also present a petition for the dissolution of her marriage on the ground that the
husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
5. Section 10- A has been added providing for divorce by mutual consent.
6. As a sequel to remove gender discrimination Section 11 has been recasted to implead adulterer or
adulteresses as co-respondents as against the provision of impleading only adulterer in the pre-
existing section.
7. Another major change that has been introduced is to remove the old Section 17 which provided for
confirmation by the High Court the decree for dissolution of marriage passed by the District Judge.
14
Instead a new Section 17 introduced conferring power on the High Court concerned to remove
certain suits from the district courts on suspicion that there is collusion between the parties.
8. Section 17-A, which was a colonial, hang over providing for the appointment of officer to exercise
duties of King’s Porctor- is omitted.
9. Section 34 which facilitates husband to claim damages from the adulterer is omitted.
10. Section 52 is made equitable by including wife also to give evidence as to cruelty.
It may be noted that the Marriage Laws (Amendment) Act, 2001 hs made amendment to Section 36
and 41 as under:
In section 36:-
(a) For the words “the wife may present the petition for expenses of the proceedings and alumni
pending suits are substituted”
(b) For the words for payment to the wife of alumni pending the suit, the words for payment of
the wife of the expenses of the proceedings and alumni pending the suit are substituted
(c) After the proviso the following proviso is inserted:
“Provided further that the petition for expenses of the proceedings an alumni pending the suit,
shall, as far as possible, be disposed off within 60 days of service of such petition on the
husband”
In Section 41 of the Divorce Act, the following proviso is added
“Provided that the application with respect to the maintenance and education of the minor children
pending the suit, shall, as far as possible be disposed of within sixty days from the date of service of
notice on the respondent.”
The above provisions were introduced in order to mitigate the delay in the procedure. It may
be noted that the amendments do not refer to judicial preparation. The period of non-
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compliance of restitution decree under the amended Act is two years unlike other personal
laws where it is only one year. Under the amended Act only the party in whose favour the
decree is given is entitled to seek divorce for non-compliance. Section 21, which provides
only partial legitimacy, is not changed.
6. BIBLIOGRAPHY
Books:
0. Hindu Law by Werner F, Menski, Oxford India Paperback, New York
1. Family Law in India by Prof. G.C.V Subba Rao, 10th ed.,2011 S.Gogia and Company,
Hyderabad
2. Family Law Lectures by Prof. Kusum, 3rd ed.,2010 Lexis Nexis, Haryana
Websites:
1. http://www.divorcelawyers.co.in
2. htttp://www.wikepedia.com
3. http://www.legalcrystal.com
4. http://www.bharatchugh.wordpress.com
5. http://www.indiankanoon.com
ACKNOWLEDGEMENT
I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them. I am
highly indebted to Mr Viswachandra Madasu for her guidance and constant supervision as well as
for providing necessary information regarding the project & also for their support in completing the
project.
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ABSTRACT
A divorce is the formal ending of a marriage by law. Indian Divorce Act 1869 came in to existence
on the first day of April, 1869. This act extends to every state of In This act was enacted in order to
amend the law relating to Divorce and matrimonial Causes. The main objective of this project is to
emphasise on the reason of initiation of the act, it’s utility, the amendments which were done to it
and it’s role in the current scenario.
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