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Indian Divorce Act, 1869

Introduction: The Indian Divorce Act, 1869 is one of the Indian personal laws for Christians. The term personal laws mean that different religions have different laws and their applications. The Act mentions about the provisions of the power of courts, decrees, custody issues, grounds for nullifying marriages, etc.

The Indian Divorce Act, 1869 is the only law for the Christian community which is related to divorce amongst the Christians. This law was first enacted by the Britishers, and it still prevails.

The Act had come into existence from 1st April, 1869, which was applicable to the whole of India, except Jammu and Kashmir. A pre-requisite of this law is that the parties must be a resident of India.

Bases for Dissolution of Marriage: Section 10 of the Indian Divorce Act mentions the grounds which can lead to the dissolution of marriage. In order to file a divorce case, either of the parties must file a petition before the District Court. The District Court is the basic court which solemnizes their marriage.

The grounds for granting a divorce are as follows:

(a) If one of the parties commits adultery, then the other party can file a suit.

(b) When one of the parties ceases to be a Christian, then the other party can file for a divorce.

(c) When one party is of unsound mind for two years.

(d) If one of the parties is suffering from leprosy or a venereal disease for two years.

(e) When one of the parties willfully refuses to continue with the marriage.

(f) When one of the parties has deserted the other spouse for two or more years.

(g) If one of the parties is being illtreated, then he/she can file for a divorce.

Beyond these grounds too, the wife can file a divorce case like, if she has found her spouse to be guilty in criminal acts like rape, bestiality, etc.

Petition Filed by the Husband: The Christian husband can file a petition to the District Court praying to dissolve his marriage. The marriage can be dissolved by the husband on the grounds of adultery since the solemnization of marriage.

Divorce by Mutual Consent: Section 10A of the Act mentions that both the parties can file for mutual divorce in the District Court. The requirement for mutual divorce is that both the parties must live separately minimum for two years, and they must be unable to live mutually. If both the parties do not wish to withdraw the petition filed between 6 to 18 months, then the court may dissolve their marriage.

Nullity of Marriage: The Act also provides provisions related to the nullity of marriages. For this, either of the parties has to file a petition in the District Court. Some of the grounds related to the nullity of marriages are impotency or lunacy of a party at the time of their marriage. If one of the parties find the other party continuing his/her previous marriage, then it will lead to nullifying the second marriage.

Restitution of Conjugal Rights: Section 32 of the Indian Divorce Act, 1869, mentions about restitution of conjugal rights. Under this provision, a party may seek restitution if his/her spouse withdraws from their company. In this situation, the marriage continues, but both the parties do not perform their marital rights on a temporary purpose.

Custody of Children: Section 41 of the Act empowers the courts to make interim orders related to custody. Even after passing a final decree of separation, the court may award custody of the child to any one of the parties.

Alimony or Maintenance Issues: The word “alimony” means the maintenance (in the form of money) of the wife that is taken over by the husband after divorce. Just like all personal laws, there’s no maximum limit to claim alimony by the wife.

Property Rights: As per the Indian Divorce Act, 1869, all sorts of property, whether movable or immovable, the property gets divided. This is applicable even in the case of bank accounts. But, even after the divorce, the person has the right to occupy the property. If it is found that the person takes care of the child/children, then the property can be granted to one or the other spouse in the divorce settlement.

Dismissal of petition: The Court can dismiss the petition on the following grounds:

(a) The court can dismiss the petition if the court finds that the case filed by the petitioner is not well proved.

(b) The court can dismiss the petition if the evidence laid by the petitioner is not well satisfying.

(c) The court can dismiss the petition if the court finds out that adultery has not been committed by the alleged party.

(d) The court can dismiss the petition if the court finds that if the petition is prosecuted with either of the respondents and any of the said cases.

Therefore, if the District Court dismisses the petition on any of the above-mentioned grounds, filed by the aggrieved party, then the petitioner can soar up the ladder of Indian courts and move to the High Court.

Verification by the High Court: After the petitioner goes to the High Court, it will confirm the decree of dissolution of the marriage. If the bench comprises of three Judges, then the decision taken by the majority will prevail, and if the bench comprises of two Judges, then the opinion of the Senior Judge will apply. If the Hugh Court finds that it needs further enquiry or evidence, then it can direct such enquiries to be made or the pieces of evidence be taken.

The result of the enquiry and additional evidence will be certified to the High Court by the District Judge, and the High Court will make an order confirming the decree of dissolution of the marriage.

Submitted by,

Kinkini Chaudhury,

Amity University, Kolkata.


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