India is a land of diverse cultures and religion. Every community has their own faith and belief, based on this they decide their own laws with respect to their community. The Constitution of India terms this as Personal Law (mentioned in Part III).
A Personal Law is a law that applies to a certain group of people based on the religion, faith and culture. The Indian Divorce Act, 1869 is one of the few codified Indian personal laws governing Christians.
HIGHLIGHTS OF THE ACT
The Act extends to the whole of India except the State of Jammu and Kashmir
Jurisdiction of Court-
Matrimonial Jurisdiction of High Court:
The matrimonial jurisdiction of High Courts is to be exercised subject to the Act.
However, the anomaly is that, the jurisdiction exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such courts and by the District Courts subject to the provisions in this Act.
Mensa et toro is a form of separation granted by the court. In such a case, neither of the spouse has the right to remarry. They are not legally obligated to live together, but their marriage has not been dissolved.
Extraordinary Jurisdiction of High Court:
The High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any district judge within its limits.
Reference to High Court:
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.
Dissolution of Marriage-
Section 10 of the Indian Divorce Act, 1869 mentions the grounds on which a court may dissolve a marriage. A petition can be filed at the District Court either by the husband or wife.
The grounds are as follows;
- When one of the party has committed adultery
- When a party has ceased to be Christian by conversion to another religion
- When a party has been of unsound mind for a period of at least two years
- When a party has been suffering from a venereal disease in a communicable form for a period of not less than two years
- When a party has not been heard of being alive for a period of seven years or more
- When a party has willfully refused to consummate the marriage
Section 10A highlights provisions of Divorce with mutual consent. The section requires the couple to be separated for at least two years, and that they have not been able to live together and have mutually consented for the marriage to be dissolved. The petition must be filed in the respective District court. In case the parties do not withdraw the petition between six to eighteen months, court may dissolve the marriage. There are three aspects regarding which the couples have to mutually agree;
- Maintenance: As per the law, there is no maximum or minimum limit of support.
- Custody of Child: Child custody in mutual consent divorce can be shared, joint or exclusive depending upon the agreement between the spouses.
- Property Rights: The couples are to decide the division of property, both movable and immovable.
Section 11 provides for Divorce on the ground of adultery. In such a scenario, the petitioner shall make the alleged adulterer or adulteress a co-respondent.
However, a petitioner may be excused by the court from doing so on the following grounds;
- The wife, being the respondent is living life as a prostitute
- The husband, being the respondent is leading an immoral life
- The identity of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has made due efforts to discover it
- The alleged adulterer of adulteress is dead
The Court can dismiss the petition on any of the following grounds;
- In case the evidence provided for the petition is not satisfactory, petitioner’s case is not proved.
- If court is not satisfied that alleged adultery has been committed.
- If petition is presented in collusion with either of respondents.
Once the court is satisfied by the evidence and case of petitioner has been proved, the court shall pronounce a decree declaring marriage to be dissolved.
However, the court does not have the power to pronounce a decree if it finds the petitioner guilty of any of the following;
- Petitioner is guilty of adultery
- Petitioner is guilty of unreasonable delay in presenting petition
- Either of party has shown cruelty towards the other
- The party has deserted or separated willfully from the other party without any reasonable excuse
Every decree for dissolution of marriage made by a District Judge will be subject to confirmation by High Court. If the court needs further enquiry or additional evidence it can direct such enquiry to be made.
Section 18 & 19:
Section 18 provides for petition for decree of nullity. According to this, a petition may be filed in the District Court hoping for the marriage to be declared as null and void.
Section 19 provides the grounds on which such petition can be filed:
- Respondent may have been ineffective at time of marriage
- Parties are within the prohibited degrees of consanguinity
- Either of the party was lunatic or of unsound mind during the time of marriage
- Former spouse of either of the party was living at time of marriage
Section 22- 26:
This section deals with Judicial Separation. In such a separation, the martial tie between the wife and husband continue to exist, and neither of them has the right to re- marriage.
As per Section 23, an application for separation can be filed on the ground of adultery, cruelty or desertion without reasonable excuse for two years or more.
Section 24 states that, in case of judicial separation, the wife during separation will be considered as an unmarried woman with respect to property, which she acquires. In case she again cohabits with her husband, the property shall be held to her separate use unless any written agreement has been made between the husband and wife while separated.
Section 25 reinforces the fact that in case of judicial separation, the wife during separation will be considered as an unmarried woman with respect to contracts, wrongs, injuries, suing and being sued in any civil proceedings. It makes clear that, the husband will not be liable for any kind of act or costs incurred by the wife during the separation. The husband may be liable for supplying necessaries to the wife in cases where, the alimony has been decreed to be paid to the wife, and the husband has not duly paid it.
Section 26 allows a petition to be filed for the reversal of Decree of Separation. It may be filed on the ground the petition was filed in his or her absence and there is a reasonable excuse for desertion by the party.
Under this section, a party may seek restitution of conjugal rights. In such a case, wither the husband or wife has, without any reasonable excuse withdrawn from the company of the other.
This section contains provisions governing the custody of a child. Section 41 deals with custody of child during suit for separation. It empowers the courts to make interim orders with respect to custody. The application with respect to maintenance and education of a minor child, shall be disposed of within sixty days from date of service.
Divorce is a traumatic event in the life of any married couple. When a couple undergoes a divorce, there is a lot of social and economic consequences to it as well. Even today there are certain segments in the society who feel that divorce is never an option, irrespective of how abusive the relation may be. Due to social stigma attached to divorce, many women find it difficult to remarry and establish a household.
Author: Arisia K,