These are frequently asked questions about the Indian Divorce Act, 1869.
Type – I: Answer in Two or Three Sentences (2 M)
a) To whom the Divorce Act is applicable?
The Divorce Act is applicable only to those people who profess the Christian religion.
b) Who can seek divorce under the Divorce Act?
Only people who profess the Christian religion can seek divorce under the Divorce Act.
c) What are the objects of the Divorce Act?
The preamble states that the Divorce Act is an amending Act, with the two fold purposes, viz. (i) to amend the law relating to divorce of Christians, and (ii) to confer upon certain Courts in India, matrimonial jurisdiction not enjoyed by them earlier.
d) Who can seek divorce under the Divorce Act?
Both the husband as well as wife can seek divorce on the grounds given in Section 10 of the Divorce Act.
e) Can a Christian woman seek divorce under the Divorce Act?
A Christian wife may 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 adultery, bigamy, cruelty, desertion, rape, sodomy, or bestiality.
f) State the grounds of divorce under the Divorce Act.
The grounds of divorce under the Divorce Act are adultery, conversion to other religion, unsound mind, venereal disease, not been heard of as being alive for a period of seven years, wilful refusal to consummate, failed to comply the decree of restitution of conjugal rights, desertion, and cruelty.
g) State two grounds on which a Christian Woman can seek divorce.
A Christian wife may 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 adultery, bigamy, cruelty, desertion, rape, sodomy, or bestiality.
h) What is “divorce a mensa et toro” under the Divorce Act?
Mensa et toro means the parties to marriage remain husband and wife but without cohabitation. According to Section 22 of the Divorce Act, no decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as here in after mentioned.
i) What constitutes desertion under the Divorce Act?
According to the Divorce Act the term desertion refers to an abandonment of a spouse, against the wish of such spouse.
j) What is the difference between a judicial separation and a divorce?
| Judicial Separation | Divorce |
| After a decree of judicial separation is passed in favour of the parties, they are not bound to cohabit with each other but some matrimonial rights and obligation, however, continue to subsist. | After a decree of divorce is passed in favour of the parties, they are not bound to cohabit with each other and all matrimonial rights and obligation, get extinguished. |
| This petition can be filed at any time post marriage. | This petition can be filed only after completion of one year of marriage. |
| It is one step process of judgment. If grounds are satisfied, decree is granted directly. | It is two steps process of judgment. First reconciliation, then divorce. |
| It is temporary suspension of marriage. | It is an end of marriage |
| They cannot remarry during the period of separation | They can remarry after divorce and all appeals (if any) are set aside. |
| Status of the wife does not change and thus, the husband has to bear the expenses of maintenance in judicial separation. | A divorced wife retains the maintenance or alimony rights |
| Decree of judicial separation can be rescinded through application by either party if court is satisfied | Decree of divorce cannot be rescinded but can be appealed. |
| Under S. 22 Divorce Act, a Christian husband or wife can file petition for judicial separation on the grounds of adultery, cruelty, and desertion for two years or more. | Under S. 10 divorce Act, a Christian husband or wife can file petition for divorce on the grounds of adultery, conversion to other religion, unsound mind, venereal disease, not been heard of as being alive for a period of seven years, wilful refusal to consummate, failed to comply the decree of restitution of conjugal rights, desertion, and cruelty. |
k) What are the grounds on which a Court can nullity a marriage?
According Section 19 of the Indian Divorce Act the grounds of nullity of marriage are:
- Impotency;
- Bigamy;
- Lunacy or idiocy;
- Prohibited degree of consanguinity or affinity
- Consent obtained by force.
l) Define Alimony.
The term alimony is used to describe the allowance granted by a Court to a woman who is not living with her husband with the object to provide the wife a source of maintenance.
m) What are kinds of alimony?
Alimony is of two types. First, alimony pendente lite which means alimony during the matrimonial litigation and second permanent alimony which is granted by the Court when passing a decree of divorce or nullity of marriage or restitution of conjugal rights.
n) What is alimony pendente lite?
“Pendente lite” actually means “pending the litigation.” Alimony Pendente Lite is a temporary financial support arrangement, or sometimes a court order, from the husband to the wife, during pendency of suit of divorce or judicial separation or nullity of marriage or restitution of conjugal rights.
o) What is permanent alimony?
When the Court passes the final decree for dissolution of a marriage or judicial separation, it may order the husband to pay to the wife, a gross sum money or an annual amount for any term not exceeding the wife’s life, as the Court thinks reasonable.
p) Distinguish between alimony pendente lite and permanent alimony.
| Alimony Pendente Lite | Permanent Alimony |
| Alimony Pendente Lite is a temporary financial support arrangement, or sometimes a court order, from the husband to the wife, during pendency of suit for divorce or judicial separation or nullity of marriage or restitution of conjugal rights. | When the Court passes the final decree for dissolution of a marriage or judicial separation, it may order the husband to pay to the wife, a gross sum money or an annual amount for any term not exceeding the wife’s life, as the Court thinks reasonable. |
| It is granted during the pendency of the suit for divorce or judicial separation or nullity of marriage or restitution of conjugal rights. | It is granted as a final decree at the conclusion of trial of the suit for dissolution of a marriage or judicial separation. |
| It is to be paid until the final order is passed in matrimonial suit. | It is payable throughout the lifetime of the wife. |
| It is paid periodically generally every month. | It may be paid in lump sum or periodically for instance, annually or monthly. |
q) When can a Christian woman claim alimony?
When husband and wife are not living together and the suit for divorce or judicial separation or nullity of marriage or restitution of conjugal rights is pending before the Court, then a Christian woman can claim maintenance under the Divorce Act.
r) To whom can alimony be paid?
Under Section 38 of the Divorce Act, in all cases of grant of alimony, the Court may direct the amount to be paid directly to the wife or to a trustee on her behalf. Such a trustee must be approved by the Court, which can impose any terms or restrictions on him
s) In what cases, domicile is required under the Divorce Act?
As far as decrees of dissolution of marriage are concerned, it is provided in the Divorce Act applies only if the parties to the marriage are domiciled in India at the time when petition is presented.
t) Can decree of nullity be claimed under Indian Divorce Act, if party is not domiciled in India?
No, under Section 2 of the divorce Act, the Act is applicable to the party domiciled in India only.
u) Can non-Christian married to Christian seek divorce under the Indian Divorce Act?
Yes, because under Section 2 of the Divorce Act, to obtain relief under the Divorce Act, by any Court, one of the parties to the matrimonial suit (either the petitioner or the respondent) must profess the Christian religion.
v) What is “dicortium a inculomatrmani” under the Indian Divorce Act?
It means divorce from bed and board’ or judicial separation.
w) Can a Christian, not of Indian domicile, seek divorce?
No, because as far as decrees of dissolution of marriage are concerned, it is provided in the Divorce Act applies only if the parties to the marriage are domiciled in India at the time when petition is presented.