Personal law is a law that identifies what law should be applicable to a person who is belonging to a particular religion in the country. In India, there are various different personal laws for various religious groups. There are five different personal laws for the different religious groups in India as follows: Hindu personal law, Christian personal law, Muslim personal law, Parsis personal law, and Jewish personal law. Affairs like marriage, succession, divorce, adoption, etc. are covered under these personal laws. In this article, we shall study historical background and salient features of the Indian Divorce Act, 1869.
Historical Background of the Act:
Many Centuries ago, Christians came to India and settled in this country when East India Company assumed ruling power in India and established its own courts. With the establishment of the Supreme Courts, the Common Law of England was made applicable to India on many subjects including marriage and divorce among the Christian community, on the ground that it was based on the principle of equity, justice, and good conscience.
The situation of converted Christians in British India during the nineteenth century was challenging. Primarily they were Muslims or Hindus who had converted to Christianity and their old personal laws no longer applied to them, so it was unclear what kinds of laws applied to them and their offspring. It was also impossible to apply English law in cases of succession, marriage, divorce, etc. because they weren’t even British. The situation then became a little uncertain and the need for a new personal law emerged because Indian Christians found themselves in a legal void which then resulted in the need for a new personal law. Between 1865 and 1872, a number of laws were passed in response to the need to control the legal situation of Indian Christians. The Second Law Commission of India had recommended to prepare separate Acts for Christians. Accordingly, the Indian Divorce Act, 1869 (Act No. 4 of 1869) was enacted with the intention to fulfil the needs of Christian Community.
Divorce is the legal dissolution of the marital union between a man and a woman. The Indian Divorce Act, 1869 governs divorce among the Christian couples in India. According to this act, the separation is granted by the court of law after receiving a petition from either wife or husband. Divorce is followed by granting alimony, child custody, and child visitation, distribution of property and distribution of debts.
Objects of the Indian Divorce Act, 1869:
- To place the Matrimonial Law administered by the District Courts, previously before 2001 by the High Courts.
- To give matrimonial reliefs to Christians.
A Must Book for Family Law Practitioners Click on the Image
Salient Features of the Indian Divorce Act, 1869
- The Act amends the law relating to the divorce of people professing Christianity.
- The Act is enacted on 26th January 1869 and came into force from 1st April 1869.
- It has 14 Chapters containing 62 Sections and 1 Schedule.
- The Act contains provisions defining powers of courts, grounds for dissolution of marriages, nullity decrees, custody issues, etc.
- The Act came into existence on 1 April 1869 and applies to the whole India.
- Section 10 of the Indian Divorce Act contains grounds on which a court may dissolve a marriage.
- According to Section 10-A, parties may together mutually file a petition for divorce in the District Court.
- Apart from the dissolution of marriage, the Act also contains provisions for nullity of marriage.
- The Act also contains a provision for restitution of conjugal rights under Section 32.
- The Divorce Act contains some provisions governing custody of children in cases of dissolution or nullity of marriage (Section 41).
Objects and Reasons of Amendment Act, 2001:
The Indian Divorce Act, enacted a century ago contained certain harsh and discriminatory provisions, like gender discrimination since for obtaining divorce husband only has to prove adultery on the part of wife whereas the wife has to prove an additional matrimonial offence like cruelty, desertion, conversion or bigamy along with adultery. Thus, a need for reform in the Indian Divorce Act was long felt by jurists and even the Supreme Court and the Law Commission.
In Mrs. Sonia Zachariah v. Union of India, II (1995) DMC 27 case, where, the constitutionality of the controversial Section 10 of the Act was again challenged. The Kerala High Court directed the Union to take a decision towards amending the Act within 6 months.
In Ammini E J. v. Union of India, AIR 1995 Ker 252case, the Kerala High Court not only highlighted the discrimination but struck down certain phrases in order to give meaningful relief to the petitioners. The court quashed the provision which requires a Christian wife to prove that her husband had been indulging in “incestuous adultery” or “adultery coupled with cruelty or desertion” in order to obtain divorce.
The Law Commission of India submitted its 164th Report on “The Indian Divorce Act, 1869” to the Government in November 1998 and inter alia recommended that a Parliament may enact a comprehensive law governing marriages and divorce and other allied aspects of Christians of India. There was no consensus among the representative of churches, Christian Parliamentarians, but all of the agreed that the Section 10 must be amended to remove gender inequality. They also agreed to amend to Sections 17 and 20 of the Act to avoid procedural delays.
Taking into consideration the above views, the Indian Divorce (Amendment) Act, 2001 was passed by which certain amendments were introduced in the Act. Section 10 of the Act was substituted by new provision and a new Section 10-A was inserted. In Part III of the Act which deals with dissolution of marriage and Part IV relating to nullity of marriage, amendments were introduced by this Amendment Act of 2001.
A Must Book for Family Law Practitioners Click on the Image
Scheme of the Act:
The Act has 14 Chapters containing 62 Sections
- Chapter I: Preliminary (Sections 1 to 3)
- Chapter II: Jurisdiction (Sections 4 to 9)
- Chapter III: Dissolution of Marriage (Sections 10 to 17A)
- Chapter IV: Nullity of Marriage (Sections 18 to 21)
- Chapter V: Judicial Separation (Sections 22 to 26)
- Chapter VI: Protection Orders (Sections 27 to 31)
- Chapter VII: Restitution of Conjugal Rights (Sections 32 to 33)
- Chapter VIII: Damages and Costs (Sections 34 to 35): Repealed
- Chapter IX: Alimony (Sections 36 to 38)
- Chapter X: Settlements (Sections 39 to 40)
- Chapter XI: Custody of Children (Sections 41 to 44)
- Chapter XII: Procedure (Sections 45 to 56)
- Chapter XIII: Remarriage (Sections 57 to 59)
- Chapter XIV: Miscellaneous (Sections 60 to 62)
- Schedule: Contains 14 different forms
Conclusion:
The situation of converted Christians in British India during the nineteenth century was challenging. Primarily they were Muslims or Hindus who had converted to Christianity and their old personal laws no longer applied to them, so it was unclear what kinds of laws applied to them and their offspring. The Second Law Commission of India had recommended to prepare separate Acts for Christians. Accordingly, the Indian Divorce Act, 1869 (Act No. 4 of 1869) was enacted with the intention to fulfil the needs of Christian Community. The Indian Divorce Act, enacted a century ago contained certain harsh and discriminatory provisions, like gender discrimination since for obtaining divorce husband only has to prove adultery on the part of wife whereas the wife has to prove an additional matrimonial offence like cruelty, desertion, conversion or bigamy along with adultery. Thus, a need for reform in the Indian Divorce Act was long felt by jurists and even the Supreme Court and the Law Commission. To remove gender inequality in the Act, the Indian Divorce (Amendment) Act, 2001 was passed by which certain amendments were introduced in the Act. Section 10 of the Act was substituted by new provision and a new Section 10-A was inserted.