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Name: Nidhi Gautam.
Class: T.Y.B.L.S./LL.B. [Semester 5]
Roll Number: A/15
Subject: Legal Language and Writing.
Submitted to: Assistant Prof. Joshita Lamba.
Subject: An Overview of the Divorce Act,1869.
Date:05/09/2022
An Overview of the Divorce Act,1869
● Introduction:
The Indian Divorce Act 1869 is one of the codified Indian private laws for Christians.
Divorce laws are important because they affect the Christian community, as individual laws
apply differently to all religions. The law includes rules that limit the powers of the courts,
grounds for dissolution of marriage, annulment orders and guardianship issues.
As mentioned above, Christian divorce is governed by the Indian Divorce Act 1869, the
Hindu Marriage Act 1955 for Hindus, Buddhists, Sikhs and Jains, the Islamic Divorce Act
1939 and the Parsi Marriage and Divorce Act 1939 for Parsis, civil and community marriages
under the Special Marriage Act 1936 and 1956. The State of Jammu and Kashmir is excluded
from the purview of this Divorce Act, but residents of Jammu and Kashmir with addresses in
other states are eligible under the following requirements: Rules and regulations.
The preamble to this Act amends the Christian Divorce Act. Some courts may decide these
issues. This is the only codified law governing divorce among Christians. Britain first enacted
this law before independence and it is still in force today. This Act came into force on 1st
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April 1869. It applies to all countries except Jammu and Kashmir. Moreover, this only
applies to those who follow the Christian religion. The parties must also be domiciled in India
where protection is required by law.
● Grounds for divorce:
Section 101 of the act provides for the grounds for dissolution of marriage. Both the husband
and wife can move to court to seek a decree for divorce under this act. The grounds are as
follows:
● ADULTERY: The respondent has committed adultery
● CONVERSION: The respondent has ceased to be a Christian by conversion to
another religion
● LEPROSY2: The respondent has been suffering from a virulent and incurable
form of leprosy for a period not less than two years immediately preceding the
presentation of the petition
● VENEREAL DISEASE3: The respondent has been suffering from a venereal
disease in a communicable form for a period not less than 2 years immediately
preceding the presentation of petition
● PRESUMED DEATH: The respondent has not been heard to be alive for
continuous period of 7 years or more
● NON-CONSUMMATION: The respondent has willfully refused to
consummate the marriage and therefore the marriage has not been consummated,
1 When the 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.
2 Hansen's disease (also known as leprosy) is an infection caused by slow-growing bacteria called
Mycobacterium leprae. It can affect the nerves, skin, eyes, and lining of the nose (nasal mucosa). With early
diagnosis and treatment, the disease can be cured.
3 a disease typically contracted by sexual intercourse with a person already infected; a sexually transmitted
disease.
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● FAILURE TO COMPLY WITH THE DECREE OF RESTITUTION OF
CONJUGAL RIGHTS: The respondent has failed to comply with the decree of
restitution of conjugal rights
● DESERTION: The respondent has deserted the petitioner for a continuous term
of 2 years or more immediately preceding the presentation of petition
● UNSOUND MIND4: The respondent has been incurably of unsound mind for a
continuous period of not less than two years immediately preceding the date of
presentation of the petition
● CRUELTY5: The respondent has treated the petitioner with such cruelty that it
has created a reasonable apprehension in the mind of the petitioner that it would be
injurious to live with the respondent.The act provides that the wife may also
present a petition for dissolution of marriage on the ground that the husband has
committed an act of rape, sodomy or bestiality.
● Alimony6:
Alimony is the amount paid to the wife by the husband, after and during the divorce
proceedings, for her maintenance. The wife is entitled to temporary alimony, permanent
alimony, and maintenance. Alimony pendente lite means alimony during the course of the
lawsuit. If the court determines that the wife does not have an independent income sufficient
to support the expenses of the proceedings and to support herself during the proceedings, the
court may direct the husband to pay the necessary expenses to the wife on a weekly or
monthly basis with regard to the income of the husband.
Once the court has completed the proceedings, it may, provided the wife is not able to
support herself independently, direct the husband to pay permanent alimony. The amount is
determined based on the income of the husband and is not absolute. The amount may be
increased or decreased based on changes in the husband's medical condition. In order to
4 Section 84 IPC
5 Section 498A.
6 financial support that a person is ordered by a court to give to their spouse during separation or
following divorce; maintenance.
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receive alimony, the wife should not be engaged in adultery or should not remarry any other
person.
● The Laws Governing Divorce in India:
India is a country of diversity. This is the golden vein of culture and customs. As we move
from east to west and from north to south, customs and cultures change rapidly, marriage
ceremonies and reasons for divorce also change. Marriage and divorce are part of personal
law and therefore not the same thing. The grounds for determining the validity and
dissolution of marriage are also different and are therefore defined by different laws in India.
Below are some of the relevant rules:
● Hindu Marriage Act (1955)
● Special Marriage Act (1954)
● Divorce Act (1869)
● Muslim Law
● Types of Divorce Petitions:
1. Divorce with Mutual Consent:
If the spouses agree to a divorce, the court considers it a divorce by mutual consent.
Section 10A7 The Indian Divorce Act 1869 requires spouses to declare that they have
7 Subject to the provisions of this 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.
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been separated for at least two years, during which time they have not lived as
husband and wife.
● The couple must have been divorced for at least one year.
● The spouse must be able to prove that they cannot live together
● Issues such as custody, alimony and property rights must be mutually agreed
upon.
● Alimony or Maintenance Issues:
As per the Indian Divorce Act,1869 there is no such limit or bar on the support that can be
made to the child.
● Custody of the child:
The Divorce Act contains some provisions regarding custody of children in cases of
dissolution or nullity of marriage. Section 41 of the Family Law Act gives courts the power
to make interim8 custody orders. Even after a final decree of separation, the court may award
custody to a specific party.
● Restitution of Conjugal Rights:
Section 329 The Act also contains a provision for restitution of conjugal rights. Under this
provision, a party may seek restitution if their spouse withdraws from the company. Under
restitution, the marriage remains, but neither party has all the marital rights for the time
being.
8 Interim orders are temporary orders while the Court makes its decision.
9 When either the husband or the wife has without reasonable excuse, withdrawn from the society of the other,
either wife or husband may apply, by petition to the District Court or the High Court, for restitution of conjugal
rights, and the Court, on being satisfied of the truth of the statements made in such petition.
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● Duration of Divorce:
The length of divorce by mutual consent varies from six to 18 months, depending on the
court's decision.
2. Dissolution of Marriage (Divorce without Mutual Consent):
A husband or wife may petition the district court to have their marriage declared null and
void. The grounds for presenting the petition to dissolve the marriage are as follows:
a. Petition by Husband:
A husband may present a petition to the District Court or the High Court, requesting
that the marriage be dissolved on the grounds that his wife has been unfaithful since
the solemnization of the marriage.
b. Petition by Wife:
Any wife is able to submit a petition to the District Court or the High Court for the
divorce of her marriage. A petitioner for divorce may be filed by the wife under any
of the following circumstances:
● If her husband has relinquished his profession of Christianity and adopted the
profession of some other religion.
● If the husband was married to another woman
● If her husband has been guilty of incestuous adultery since the solemnization
of the marriage,
● In the case of bigamy with adultery,
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● If you marry another woman with adultery, you will be excommunicated.
● In case of rape, sodomy or bestiality
● In the case of adultery coupled with such cruelty as would have entitled her to
a divorce, without the adultery, from bed and board.
3. Nullity of marriage
A wife is entitled to petition the District Court or the High Court for the dissolution of
her marriage. A wife may file such a petition under any of the following
circumstances:
A husband or wife may present a petition to the district court praying that his or her
marriage be declared null and void. The grounds for presenting the petition to annul
the marriage are as follows:
● The respondent was impotent at the time of marriage and at the time the suit
was instituted.
● The couples were within the prohibited degree of consanguinity or affinity.
● Either party was a lunatic or idiot at the time of marriage
● Either party's former spouse was living at the time of marriage. Any wife is
able to present a petition to the District Court or the High Court for the
dissolution of her marriage. A petition for divorce can be filed by the wife
under any of the following circumstances.
4. Judicial Separation
Under the court's decree known as judicial separation, the parties may separate from each
other. Separation of parties, whether pursuant to a court decree or by mutual agreement,
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means a separation from bed and board. After separation, the parties are under no obligation
to live together. Judicial separation is allowed only if the marriage is valid. In a separation by
agreement, the state of separation comes to an end as soon as the parties revoke the
agreement or begin cohabiting with one another. The purpose of Section 1010 is to provide
time for reconciliation between the spouses. The primary purpose of matrimonial relief is to
protect the innocent party and to dissolve the marriage only when the practical purposes of
the marriage have broken down. Any party to the marriage, whether the marriage was
solemnized before or after the commencement of this act, may present a petition to the
district court praying for a judicial separation on the grounds specified under section 1311.
Effects of Judicial Separation:
● Marriage is not dissolved
● The rights and obligations arising from the marriage are merely suspended
● The husband and the wife are not bound to cohabit with each other
● Alimony can be claimed by either party
● If either spouse marries during the period of separation, he or she will be guilty of
bigamy
● The wife shall, after separation be considered as fame sole i.e. an independent
woman
The following documents have to be furnished for filing a divorce in India according to
the Indian Divorce Act,1869:
10 When the 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.
11 Dismissal of petition.- In case the Court, on the evidence in relation to any such petition, is satisfied that the
petitioner' s case has not been proved, or is not satisfied that the alleged adultery has been committed
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● Address proof of husband
● Address proof of wife
● Marriage Certificate
● Four passport size photographs of the marriage
● Evidence for proving spouses are living separately since more than a year
● Evidence of the failed attempts of reconciliation
● Income Tax statement for the last two to years
● Details of the profession and present remuneration
● Information relating to family background
● Details of property and other assets owned by the petitioner.
● Case Laws
● Title of the case: Dr. N.G. Dastane vs Mrs. S. Dastane on 19 March,
1975
Equivalent citations: AIR 1975 SC 1534, (1975) 2 SCC 326, 1975 3 SCR
967
Bench: N Untwalia, P Goswami, Y Chandrachud
● Facts:
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In this case, the appellant Dr. Narayan Ganesh Dastane & the Respondent Sucheta Dastane
got married in April 1956. But before finalizing the marriage proposal, the Respondent’s
father, B. R. Abhyankar, informed the Appellant that the Respondent had suffered from a
‘bad attack of sunstroke’ and ‘cerebral malaria’. This adversely affected her mental condition
for a while from which she has recovered. He did not make any further inquiries. The couple
had 2 daughters and lived together until February 1961, and on the day of parting,
Respondent was three months pregnant. On February 19, 1962, proceedings were instituted in
the Trial Court where the appellant alleged that Respondent is of unsound mind and has
treated him with cruelty therefore, she is a danger to his life.
● Issue:
Whether the act of sexual intercourse amounts to condonation of cruelty.
● Submission of Applicant:
The appellant alleged that prior to the marriage, the respondent was treated in the Yerawada
Mental Hospital for Schizophrenia but her father fraudulently represented that she was treated
for sun-stroke and cerebral malaria. The trial court rejected this contention.
● Submission of Respondent :
The Respondent alleged that the letters the Appellant is talking about were sent under
coercion due to the Appellant’s parents. It was further contended by the Respondent side that
the Appellant had laid a rigid standard of behaviour for her and pressurized her to behave
expectedly. Following ‘special instructions’ were given by the appellant: To look after the
minor after waking up in the morning. Not to use brass plates, cups, or vessels for serving
meals. And after having served the first course of the meal, not to repeatedly question ‘what
do you want? But to inform about the requirements and courses of the meal in the very
beginning only. Respondent further alleged that apart from the above-stated instruction she
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was supposed not to work single-handedly, not to talk; to regularly apply ‘Kajal’ to herself
and give him tomato juice daily. It was also stated that even after the desertion, the Appellant
continued sexual relations with the Respondent leading to the birth of their third child. Thus,
this act of the Appellant amounted to condoning of cruelty. The counsel of the Respondent
also contended that it was the strict behaviour of the Appellant that used to make the
Respondent react that way. So, in a way, the Appellant was trying to take advantage of his
wrong as per Section 23(1), Hindu Marriage Act, 1955.
● Judgment :
Condonation means that when the accuser has forgiven or has chosen to ignore an act which
they are now legally complaining about. In the above case, the SC held that the spouse led a
normal sexual life despite the act of cruelty by the respondent. The purpose to restore and
forgive the offending partner to the original status can be fairly inferred because the parties
lead an existence of intimacy which represents a normal matrimonial relationship,
uninfluenced by the respondent’s conduct. Therefore divorce was not granted to Mr. and Mrs.
Dastane.
● Title of the case: Parveen Mehta vs Inderjit Mehta on 11 July, 2002
Bench: D.P. Mohapatra, Brijesh Kumar
Case No. 3930 of 2002
Date of Judgement: 11/07/2002
● Facts:
In this case, the appellant and the defendant were married on January 15, 1364. He replied
that he could not marry because the plaintiff was not cooperating. He stated that the
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petitioner was suffering from mental illness and he was not told about it either before or
after the marriage. Once Shri S.K. Jain, a senior law officer, was negotiating mediation
between the parties when the appellant grabbed the accused by the collar and made him
uncomfortable. On July 9, 2015, the plaintiff along with several accomplices went to look
for the defendant in the Khandadi court area and did not find him there, they forcibly
entered his house and threatened him. A report on this incident was prepared and sent to a
higher authority. Referring to the above-mentioned cases and circumstances, in August
1996, the defendant filed an application for divorce on the grounds of cruelty and
desertion.
● Issue:
What is the meaning and import of the expression ‘cruelty as a matrimonial offense is the
core question on the determination of which depends on the result and the fate of this
case.
● Submission of Applicant :
It was her case that she had become pregnant from the wedlock but unfortunately there was
miscarriage. It was the further case of the appellant that the respondent and his parents
wanted to pressurise the appellant and her parents to agree for a divorce by mutual consent.
● Submission of Respondent :
The respondent alleged that the state of health of the appellant continued to deteriorate; she
continued to lose weight; she suffered from asthmatic attacks; on account of her ailment her
behavior became quarrelsome; and on trifle matters she threatened to leave the matrimonial
home.
● Judgement:
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Unlike the case of physical cruelty, it is difficult to ascertain mental cruelty by
diametrical evidence. Mental cruelty can be interpreted by studying the facts and the
circumstances of a particular case. A feeling of anguish, hatred, disappointment, and
frustration in one spouse that is caused by the behavior of the other can be acknowledged
by studying the facts and the environment in which the two partners have been living.
Therefore it will not be a correct approach to take a particular instance of misbehavior in
isolation and then pose the question of whether such behavior is sufficient by itself to
cause mental cruelty. The approach should be to take the cumulative effect of the facts
and circumstances emerging from the evidence of the case under trial and then draw a fair
conclusion as to whether the petitioner in the divorce petition has been subjected to
mental cruelty due to the conduct of the other or not. Therefore, the prayer of the
respondent for dissolution of the marriage on the ground of cruelty under Section 13(1)(i)
(a) of the Act was acceptable and the decree of divorce was passed.
References:
1. https://indiankanoon.org/
2. https://www.legalserviceindia.com/
3. https://www.toppr.com/guides/legal-aptitude/family-law-I/indian-divorce-act-
1869/
4. https://blog.ipleaders.in/need-know-divorce-laws-india/
5. Ratanlal and Dhirajlal Constitutional Law
6. Ratanlal and Dhirajlal Indian Penal Code
7. Medicotoxology by Modi
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