Summary on Indian Divorce Act, 1869

The act originally called the Indian Divorce Act was framed to cover all the Christians residing in India but excluding the princely states and the settlements occupied by Portugal and France. The act was mainly built upon the Matrimonial causes Act, 1857 which was applied in England. The Supreme Court has said that the principles and rules established by the House of Lords shall be applicable by the Indian courts in cases governed by the Divorce Act. Although the court expressed its displeasure by saying that incorporation of a statute cannot go this far. Even the Kerala High Court had to deal with issues regarding the application of English principles in deciding Indian cases. This was followed by the amendment of the act in 2001 where sec.7 was deleted which had expressly stated that principles of English courts ought to be applied but there were no alternative reference to principles mentioned which shall be applicable. There were no significant changes since the act was framed and hence the Indian law on Christian divorce had become one and the same as the one followed in England. The law commission of India had recommended some changes which was necessary to meet present requirements such as amendment to sec.10 of the act so that there are no discrimination based on gender for the grounds for divorce and also to simplify the procedures for divorce.

Some significant changes brought through the amendment were that the deletion of the section which said the adulterer has to pay compensation to the husband which was based on the concept that women formed a part of the husband’s property and any damage to his property required compensation, this concept having undergone a radical change since the Victorian era when this act was framed and was long over due to be reformed. Then there was the inclusion of women being liable to equal rights on compensation and property. But there were also changes which favored men for example increasing the number of grounds under which men can sue for divorce thus bringing an equal platform for both genders. There has also been the inclusion of a section where it is possible for both the parties to get divorce through mutual consent which was not possible before the amendment was made and the parties had to resort to accuse each other on the grounds mentioned in the act even though they agreed to get divorce mutually. It would take a maximum of 18 months for a court to decide a case on mutual consent divorce.

Getting into the details of the act Sec.10 provides for the grounds on which divorce can be applied under the act and they are 1.Adultery, 2.Cruelty, 3.Desertion for more than seven years,4.Insanity for more than two years, 5.Incurable leprosy for more than two years,6.Conversion to other religion, 7.Willful refusal to consummate the marriage, 8.Not being heard for seven years, 9.Venereal disease which is communicable for more than two years, 10.Failure to obey the order for restitution for conjugal rights . There are three more grounds but are exclusive to the wife and them being rape, sodomy and bestiality. There are also provisions for declaring the marriage null and void: if the respondent party was impotent at the time of marriage and institution of the suit, the parties are within the prohibited degrees of consanguinity, If one of the parties was a lunatic at the time of marriage and the last being that if either of the parties had been into a marriage already and that wife or husband is still alive at the time of marriage and institution of the suit. The bottom line on which a marriage can be declared null and void lies on the issue of consent. If there is no consent then it is deemed that there was no marriage. Now parties can move to the district or family court to get a suit initiated and that court’s decree would be held final if no appeal has been referred. The mandatory procedure of getting the confirmation from a High Court after getting a decree from a district court has been done away with and now no such confirmations are required. Provisions for alimony under the act has been made very beneficial to women where a cap of one-fifth was maintained but now it was made to be decided based on the circumstances of each case. Such alimony are valid only till the wife gets remarried. If the husband refuses to pay the alimony the court may take appropriate actions to ensure, that the wife is paid the alimony she is entitled to.

Article by
Geejo Francis
3rd year student, LLB
School of Law,
Christ University,