These are frequently asked questions about the Indian Divorce Act, 1869.

Type – II: Write Short Notes on the following (4 M / 5 M / 6 M)

a) Grounds of Divorce Under Divorce Act, 1869 After Amendments:

The Divorce Act is applicable only to those people who profess the Christian religion. Both the husband as well as wife can seek divorce on the grounds given in Section 10 of the Divorce Act. 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. To avail a divorce, the husband or wife must file a petition before the District Court under whose jurisdiction the parties solemnized their marriage, or they reside or last resided together.

According to Section 10 of the Act, the court may grant a divorce under any of the following grounds:

1. When one of the parties commits adultery;
2. If a party ceases to be a Christian;
3. In case of a party being of unsound mind for two years;
4. If a party has been suffering from leprosy or a venereal disease for two years;
5. has not been heard of respondent 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
6. In case of a party wilfully refusing to consummate the marriage;
7. When a party has deserted the spouse for two years or more;
8. When party 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
9. In case of a party treating the spouse with cruelty.

Apart from these grounds, the wife can present a petition of divorce on additional grounds that her husband has, since the solemnization of the marriage, been guilty of adultery, bigamy, cruelty, desertion, rape, sodomy, or bestiality. Under Section 10A the parties can obtain divorce by mutual consent.

b) Adultery Under the Indian Divorce Act:

Adultery may be defined as the act of a married person having sexual intercourse with a person of opposite gender other than the wife or husband of the person. Adultery is a ground for divorce under all personal laws. Adultery is a ground of divorce under the Divorce Act, 1869. Section 22 of the Indian Divorce Act bars divorce mensa et toro, however, it makes provisions for a decree of judicial separation on the grounds of adultery.

The essential ingredients of the offence of adultery:

1. There should be an act of sexual intercourse outside the marriage, and
2. That such intercourse should be voluntary.

Direct evidence of the adultery is not insisted upon, as it would be, its very nature, quite rare. In most cases, therefore, the courts have to rely upon circumstantial evidence.

The procedure for divorce in India under the Indian Christian Marriage Act is dual in nature. Firstly, the couple has to obtain an annulment from the Church and then they may approach the court for a decree of divorce. However, under the Act, the wife had to prove the presence of other grounds along with adultery such as such as, cruelty, change in religion, insanity, etc., whereas the husband only had to prove that his wife had indulged in an adulterous Act. Section 11 of the Act, however, provides that the adulterer has to be pleaded as co-respondent. 

The Bombay High Court in the case of Pragati Varghese vs. Cyril George Varghese, commented upon this by stating that this puts unnecessary pressure on the wife and is blatantly unfair, and allowed adultery as an independent ground.

In the case of Ammini E.J. v. Union of India, the Kerala High Court held that a Christian woman having to prove the offence of cruelty or desertion coupled with adultery is violative of Section 21 of the Constitution of India.

The provisions for Judicial separation under the Indian Divorce Act allows Christian women to file judicial separation on the grounds of adultery. Section 22 of the Indian Divorce Act bars a decree of divorce, but states that a judicial separation may be obtained by both the husband and the wife on the grounds of adultery.

c) Cruelty as Grounds for Dissolution of Marriage:

Cruelty is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other.

A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty.

Some instances of cruelty are

• The husband spreading false reports about his wife’s adultery.
• The husband’s behaviour towards his wife in a public street, to show her as a prostitute
• Insisting on oral and anal sex

But mere use of violent words, insult, bad language, abuse which does not raise a reasonable apprehension of bodily harm is not considered as a legal cruelty.

d) Constructive Desertion:

Under most of the Indian statutes, desertion is a ground for divorce or judicial separation or for both. Under the Indian Divorce Act, 1869 desertion as such is not a ground of divorce for either spouse. But in case of wife’s petition for divorce, husband’s desertion for a continuous period of two years coupled with his adultery is a ground for divorce. However, two years’ desertion without reasonable cause is a ground for judicial separation for either spouse.

Section 3 of the Divorce Act defines ‘desertion’ as an abandonment against the wish of the person charging it. Desertion means withdrawing from matrimonial obligations. It is a negation of living together which is essence of any matrimonial relationship. It is total repudiation of marital obligations. Following are the essential requirements of desertion – 

1.     Factum of separation of one spouse from other.

2.     Animus deserendi, i.e., intention to desert permanently.

3.     The deserted spouse must not have agreed to the desertion.

4.     The desertion must be without reasonable cause.

5.     This state of affairs must have continued for at least two years.

Constructive desertion requires the same 5 elements listed above. The most common ground for constructive desertion is cruelty. Constructive desertion is when one spouse makes the household unliveable for the other spouse. Misconduct that qualifies constructive desertion can include domestic violence and excessive emotional harassment. Willful and continual refusal of sexual relations for 12 months can also contribute to constructive desertion. Constructive desertion occurs when a spouse is caused to leave home by the other spouse’s misconduct. In this case, even though one spouse physically leaves the home, the spouse engaging in misconduct is at fault.

To obtain divorce on this ground, it must be shown that the other party has deserted the petitioner for continuous period of not less than two years immediately preceding the presentation of petition without reasonable excuse or against the wish of petitioner. However, before granting the decree of divorce on this ground, the court must be fully satisfied that the respondent had animus deserendi i.e., intention to desert and for that purpose the circumstances and the purpose for which desertion has taken place shall be examined. In case of genuine cause, the animus deserendi would be missing.

e) Divorce by Mutual Consent Under Divorce Act:

The concept of divorce by mutual concept was first incorporated in the Special Marriage Act, 1954. Thereafter, in 1976 and 1988 divorce by mutual concept was inserted as a provision in the Hindu Marriage Act and Parsi Marriage and Divorce Act, respectively. Divorce by Mutual Consent or Mutual Divorce is when both husband and wife mutually agree that they cannot live together anymore and that the best solution being Divorce, they would present a Mutual Divorce petition jointly before the honourable court, without putting forth any allegations against each other.

According to Section 10A subsection 1 of Divorce Act 1869, subject to the provisions of the Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.

According to Section 10A subsection 2, on the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.

f) Decree of Nullity of Marriage Under the Divorce Act:

Nullity, in general, means an act that is legally void in nature. In case of a marriage, it means a legal statement by the family court that there was the marriage didn’t exist between two people, and marriage was not valid. The declaration makes it clear that the marriage never took place. As mentioned, the nullity of marriage is a legal declaration that marriage was not in existence. It points out the validity of marriage according to law it was performed. This means that there was not a valid marriage has performed between the parties; either the parties or the circumstance is not valid by the law. It is to be noted that under divorce, the validity of a marriage is not questioned, but the continuation of marriage remains in question, while in nullity of marriage, the validity of the marriage itself id in question.

Any husband or wife may present a petition to the District Court or to the High Court Division, praying that his or her marriage may be declared null and void.

In the year 2001, The Indian Divorce Act 1869 was amended and the grounds for nullity of a marriage under the act (Section 19) are:

• In case the respondent was impotent at the time of marriage and also at the time of institution of the suit.
• Bigamy: Either of the party has living husband or wife at the time of marriage and that marriage is in force
• Marriage between the persons within the prohibited degree of consanguinity or affinity
• Either party was lunatic at the time of marriage.

According to Section 21 of the Act, where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.

g) Void Marriages Under the Indian Christian Marriage Act:

The Indian Christian Marriage Act, 1872 is applicable in matter of marriages. According to this Act on following ground marriage can be declared null and void:

1. At least one of the parties to the marriage is not Christian (Section 4)
2. Respondent was impotent at the time of marriage and at the time of institution of suit,
3. Either of the party has living husband or wife at the time of marriage and that marriage is in force i.e., bigamy
4. Marriage between the persons within the prohibited degree of consanguinity or affinity
5. Either party was lunatic or idiot at the time of marriage.

In the year 2001, The Indian Divorce Act 1869 was amended and the grounds for nullity of a marriage under the act (Section 19) are:

• In case the respondent was impotent at the time of marriage and also at the time of institution of the suit.
• Bigamy: Either of the party has living husband or wife at the time of marriage and that marriage is in force
• Marriage between the persons within the prohibited degree of consanguinity or affinity
• Either party was lunatic at the time of marriage.

h) Restitution of Conjugal Rights under Divorce Act:

Conjugal Rights are those (sexual) rights and privileges that are involved in a marital relationship. These rights and privileges are mostly an implied aspect of marriage. These essentially mean the right to stay or live together. Restitution of Conjugal Rights as the name suggests means, restoring the rights to live together. The fundamental ideology behind recognizing the Restitution of Conjugal Rights is to protect the sanctity of the institution of marriage.

Section 32 and 33 of the Indian Divorce Act, 1869, deals with the restitution of conjugal rights among Christians.  A petition for restitution of conjugal rights by the husband/wife can be filed before the District Court or the High Court under Section 32 of the Indian Divorce Act, 1869, when either the husband or the wife, without reasonable excuse, withdraws himself/herself from the society of the other. Accordingly, the Court may decree restitution of conjugal rights on being satisfied of the truth of the statements made in such petition, and there being no legal ground why the application should not be granted. Nothing which would not be a ground for a decree of nullity of marriage or a suit for judicial separation can be pleaded as a defence against a petition for restitution of conjugal rights under Section 33 of the Indian Divorce Act, 1869.

Anything which amounts to a ground for judicial separatio9n or nullity of marriage under the Act would be a complete defence for such a petition. In such petition the burden of proof is always on the petitioner. The provision of the restitution of conjugal right is many times challenged to be ultra vires to the provisions of the right of privacy and human dignity guaranteed under Article 19 of the constitution.

i) Protection Orders Under Divorce Act:

Sections 27 to 30 of the Divorce Act, 1869 deal with the protection of a deserted wife’s property. According to Section 27 of the Act, any wife to whom section 4 of the Indian Succession Act, 1865, (10 of 1865) does not apply, may, when deserted by her husband, present a petition to the District Court or the High Court, at any time after such desertion, for an order to protect any property which she may have acquired or may acquire, and any property of which she may have become possessed or may become possessed after such desertion, against her husband or his creditors, or any person claiming under him.

According to Section 28 of the Act, the court, if satisfied of the fact of such desertion, and that the same was without reasonable excuse, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earning and other property from her husband and all creditors and persons claiming under him. Every such order shall state the time at which the desertion commenced, and shall, as regards all persons dealing with the wife in reliance thereon, be conclusive as to such time.

According to Section 29 of the Act, the husband or any creditor of, or person claiming under him, may apply to the court by which such order was made for the discharge or variation thereof, and the court, if the desertion has ceased, or if for any other reason it thinks fit so to do, may discharge or vary the order accordingly.

According to Section 30 of the Act,  if the husband, or any creditor of, or person claiming under the husband, seizes or continues to hold any property of the wife after notice of any such order, he shall be liable, at the suit of the wife (which she is hereby empowered to bring), to return or deliver to her the specific property, and also to pay her a sum equal to double its value.

According to section 31 of the Act, so long as any such order of protection remains in force the wife shall be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts and suing and being sued, as she would be under this Act, if she obtained a decree of judicial separation.

j) Alimony under the Divorce Act:

When a couple decides to end their marriage by way of a divorce, there is usually some kind of monetary compensation given by one spouse to the other, so that they are able to maintain the standard of living that they are accustomed to even after the divorce. Such compensation is mandated by law and is ordinarily paid by the spouse who is in a financially stronger position, to the other spouse. After divorce either of the spouse has the right to claim alimony. Though not an absolute right, it can be granted by the court depending upon the circumstances and financial conditions of both the spouses.

The alimony claims of either spouse (though, in the vast majority of cases, it is the wife) depends on whether the husband has sufficient means. While deciding that the alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (the property is given to the wife) and his liabilities. 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.

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. 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.

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.

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