Table of Contents
East India company came into India and they established their courts to rule our country. With that effect, the common law of England was made applicable in India in various aspects. It includes laws relating to marriage and the dissolution of marriage. Those principles were based on Equity, Justice and good conscience. Therefore the Indian Christian Marriage Act of 1872 came into effect and it regulates the legal marriage of Indian Christians. Several different laws deals with the same religion which includes the Marriages Validation Act, 1892, the Converts Marriage Dissolution Act, 1866, the Cochin Christian Civil Marriage Act, 1905, the Indian Matrimonial Causes Act, 1948, and the Indian Divorce Act, 1869.
The objective of the Indian Christian Marriage Act, 1872 is to reduce into smaller pieces and simplify the procedure of the existing law on this matter by the consolidation of the different enactments referred to, and to simultaneously amend the law in those matters in which it is defective. Therefore Divorce under Christian law is dealt with in the Indian Divorce Act, 1869.
Indian Divorce Act, 1869
Divorce is a legal dissolution of the marriage between a husband and wife.
The Indian Divorce Act came into existence in 1869. In India, divorce rules and procedures differ with the religion and community of the couple because our country is completely secular. The Indian Divorce Act regulates divorce among Christian spouses in India. The separation is granted by the court of law after receiving a petition from the spouses. It is sufficient that if any one of the parties to the marriage is a Christian to gain jurisdiction under this Act[1]. Related issues like alimony, child custody, and child visitation, distribution of assets, Property related issues and distribution of debts are considered and dealt with by the court during the process of Divorce. The Christian couple before applying for a divorce should be aware of the Christian law, its procedure and the complications involved in it. The Act, 1869 therefore only relates to the persons professing Christianity. [2] A marriage that was solemnized under the Christian law can only be dissolved by a decree of the Court passed under this Act[3]. A divorce by either side or by mutual consent can be obtained. As stated in the act, divorce is allowed concerning the fulfillment of certain grounds. It applies to both men and women, but the grounds are far more restrictive for women.
There are two types of Divorce under the Indian Divorce Act, 1869
- Mutual divorce (No-fault divorce)
- Contesting divorce (Fault divorce)
Divorce with mutual consent
In this case, the couple mutually agrees to separation where both the husband and wife are not willing to continue their married life together. After the couple has agreed to divorce, the courts will consider that as a divorce by mutual consent. Section 10A of the Indian Divorce Act, 1869, deals with the said respect and it states that the couple has to prove that they are living separately for at least two years. It is considered to be a major factor. When it comes to a mutually agreed petition, then all related matters within the marriage should be decided mutually by both the couple. Child custody, maintenance and other marital rights have to be discussed and the decision should be accepted by both parties.
Under section 10 A of this Act, a petition for dissolution of marriage may be presented before the District Court by both the parties to a marriage in a mutual manner. Factors like whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001 and that they have been living separately for more than two years and that they have not been able to survive together will be looked after. They have to mutually agree that the marriage can be dissolved without any pending requirements.
Six months after the date of filing of the petition referred to in sub-section (1) and not more than eighteen months after the said date, if the petition still exists and is not withdrawn by any of the parties, then the Court shall hear the parties and make inquiries after satisfaction that a marriage has been solemnized properly and that the details mentioned in the petition are true. Therefore a decree will be passed to dissolve the marriage with effect from the date of the decree by the competent court.
Contested divorce
This type of divorce is also called divorce without mutual consent. The law relating to divorce amongst Christians in India has a few extra grounds that are available to one of the spouses. However, under this statute, both the husband and wife can file a petition separately for dissolution of marriage under the act but few requirements have to be satisfied.
- Initially, if the Christian husband is seeking a divorce, then he can file a petition to the District Court or the High Court, depending on their residence. The prayer should contain the parts where he has to state that he needs his marriage to be dissolved on a ground that has been permitted under the act. According to this act, if those grounds are satisfied then the court will grant a divorce to the affected spouse.
- In the case where a wife has been affected by the husband, any wife can present a petition before the District Court or the High Court for dissolution of marriage.
Grounds of divorce
i. If either of the parties has converted from his/her religion to another, that is the profession of Christianity has
been exchanged to the profession of some other religion and that he/she is no longer a Christian.
ii. If one of the parties gets married to another person when the marriage is still in existence
iii. If the husband is guilty of rape, sodomy or bestiality
iv. If he has been in some incestuous adultery after the solemnization of marriage
v. If the party has been of unsound mind or has been insane for more than two years for a continuous time before filing the petition.
vi. Under the grounds of cruelty
vii. In case of adultery joined with desertion for more than two years without any reasonable cause.
viii. If the respondent has been suffering from any kind of venereal communicable disease for not less than two years.
ix. If the respondent has not been heard for more than seven years
x. If any of the parties have refused to consummate the marriage
xi. If the respondent after passing the decree for restitution of conjugal rights against him/her and if has failed to
comply with the same for two years or more.
Decree of Nullity
Any one of the following grounds has to be satisfied to get a decree of nullity. Any of the spouses can file a petition under Section 18 to the District Court, praying that his or her marriage may be declared null and void on any of the following grounds
- Impotency of the respondent at the time of marriage itself and also during the time of the institution of the suit
- If the parties are within the prohibited degrees of relationship ( A relationship through parentage or descent)
- If either of the party were insane or lunatic at the time of marriage
- If the consent of the parties were obtained through force or in a fraudulent manner. In that case, the court shall not provide a decree if
i. the proceedings have not been instituted within one year time after the force had ceased, or after the fraudulent activity has been discovered
ii. The petitioner seeking divorce has lived with the other party with free consent to the marriage as husband and wife after the coercion had ceased, or when the fraud has been discovered
Any of the spouses can file a petition to the District Court or the High Court, praying that the marriage may be ordered to be a null and void marriage. A decree of Nullity will be declared by the court on the mentioned grounds and every decree of nullity of a marriage that has been ordered by the District Judge will be verified and will be subject to confirmation by the High Court.
Decree for dissolving the marriage
The decree for divorce can only be obtained if all the evidence of a case of the petitioner has been proved, and the grounds being valid under the act. The court will then pronounce a decree stating such marriage as not valid and that it has to be dissolved.
There are few grounds on which the Court cannot be bound to pronounce such decree:
- If the petitioner seeking divorce has been made guilty of adultery
- If the petitioner himself/herself has been made guilty of unreasonable delay in presenting or prosecuting such petition before the court
- If the petitioner had willfully separated from the party without giving any reasonable excuse
- If the petitioner has been made guilty of cruelty under the act
- In case of any willful neglect from the side of the petitioner towards the other spouse as has conducted to the adultery
[1] Pramila Khosla v. Rajesh Kumar Khosla, AIR 1979 Delhi 79; cf. Ibid.
[2] Law of Marriage Divorce by PC. Pant, 2nd edn.. p-211, 2001, Orient Publishing Company, New Delhi.
[3] George Sebastian v. Molly Joseph, AIR 1995 Ker. 16 (FB)