The Divorce Act, 1869 (4 of 1869) as amended by

The Personal Laws (Amendment) Act, 2019 (6 of 2019) (w.e.f. 1-3-2019) with

Short Comments

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CONTENTS

THE DIVORCE ACT, 1869 Section Preamble

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I—PRELIMINARY 1. Short title Commencement of Act 2. Extent of Act Extent of power to grant relief generally and to make decrees of dissolution or of nullity 3. Interpretation clause II—JURISDICTION 4. Matrimonial jurisdiction of High Courts to be exercised subject to Act—Exception 5. Enforcement of decrees or orders made heretofore by Supreme or High Court 6. Pending suits 7. [Omitted] 8. Extraordinary jurisdiction of High Court Power to transfer suits 9. Reference to High Courts III—DISSOLUTION OF MARRIAGE 10. Grounds for dissolution of marriage 10-A. Dissolution of marriage by mutual consent 11. Adulterer or adulteress to be co-respondent 12. Court to be satisfied of absence of collusion 13. Dismissal of petition 14. Power to Court to pronounce decree for dissolving marriage Condonation 15. Relief in case of opposition on certain grounds 16. Decrees for dissolution to be nisi Collusion 17. Power of High Court to remove certain suits 17-A. [Omitted] IV—NULLITY OF MARRIAGE 18. Petition for decree of nullity 19. Grounds of decree 20. [Omitted] 21. Children of annulled marriage V—JUDICIAL SEPARATION 22. Bar to decree for divorce a mensa et toro; but judicial separation obtainable by husband or wife 23. Application for separation made by petition 24. Separated wife deemed spinster with respect to after-acquired property 25. Separated wife deemed spinster for purposes of contract and suing

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CONTENTS

Section

Page Reversal of Decree of Separation

26. Decree of separation obtained during absence of husband or wife may be reversed 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56.

VI—PROTECTION ORDERS Deserted wife may apply to Court for protection Court may grant protection order Discharge or variation of orders Liability of husband seizing wife’s property after notice of order Wife’s legal position during continuance of order VII—RESTITUTION OF CONJUGAL RIGHTS Petition for restitution of conjugal rights Answer to petition VIII—DAMAGES AND COSTS [Omitted] [Omitted] IX—ALIMONY Alimony pendente lite Power to order permanent alimony Power to order monthly or weekly payments Court may direct payment of alimony to wife or to her trustee X—SETTLEMENTS [Omitted] Inquiry into existence of ante-nuptial or post-nuptial settlements XI—CUSTODY OF CHILDREN Power to make orders as to custody of children in suit for separation Power to make such orders after decree Power to make orders as to custody of children in suits for dissolution or nullity Power to make such orders after decree or confirmation XII—PROCEDURE Code of Civil Procedure to apply Forms of petitions and statements Petition to state absence of collusion Statements to be verified Suits on behalf of lunatics Suits by minors Service of petition Mode of taking evidence Competence of husband and wife to give evidence as to cruelty or desertion Power to close doors Power to adjourn Enforcement of, and appeals from, orders and decrees No appeal as to costs Appeal to the Supreme Court

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CONTENTS

Section 57. 58. 59.

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Page XIII—RE-MARRIAGE Liberty to parties to marry again English clergyman not compelled to solemnize marriages of persons divorced for adultery English Minister refusing to perform ceremony to permit use of his Church XIV—MISCELLANEOUS Decree for separation or protection order valid as to persons dealing with wife before reversal Indemnity of persons making payment to wife without notice of reversal of decree or protection order Bar of suit for criminal conversation Power to make rules SCHEDULE OF FORMS —————

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Indian Divorce (Amendment) Act, 2001—At a glance The Divorce (Amendment) Act, 2001 reforms the 132-years old Christian Law. The 1869 Law is based on a British enactment of 1852 which Britain itself had scrapped in 1923. The Divorce (Amendment) Act, 2001 gives women and men the same rights to seek annulment of marriage, widens the grounds for annulment on the lines of Hindu Law, allows divorce by mutual consent after a two-years application wait, removes the 1869 alimony ceiling of one-fifth of the husband’s earnings and deletes the existing provision barring a divorce decree till confirmed by the High Court.

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List of Amending Acts/Adaptation Orders 1. Court-fees Act, 1870 (7 of 1870) 2. Repealing Act, 1873 (12 of 1873) 3. Indian Divorce (Amendment) Act, 1912 (10 of 1912) 4. Indian Divorce (Amendment) Act, 1926 (25 of 1926) 5. Indian Divorce (Second Amendment) Act, 1927 (30 of 1927) 6. Government of India (Adaptation of Indian Laws) Order, 1937 7. Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948 8. Adaptation of Laws Order, 1950 9. Part B States (Laws) Act, 1951 (3 of 1951) 10. Adaptation of Laws (No. 2) Order, 1956 11. Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1968 12. Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968. 13. Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1973 14. Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974 15. Marriage Laws (Amendment) Act, 2001 (49 of 2001) 16. Indian Divorce (Amendment) Act, 2001 (51 of 2001) 17. Personal Laws (Amendment) Act, 2019 (6 of 2019)

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THE 1 [* * *] DIVORCE ACT, 1869 2 (4 OF 1869)

[26th February, 1869] An Act to amend the law relating to Divorce and Matrimonial Causes 3[* * *] Preamble.—WHEREAS it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial; It is hereby enacted as follows:— Statement of Objects and Reasons.—The object of this Bill is to place the Matrimonial Law administered by the High Courts, in the exercise of their original jurisdiction, on the same footing as the Matrimonial Law administered by the Court for Divorce and Matrimonial Causes in England. The 9th Section of the Act of Parliament for establishing High Courts of Judicature in India, (24 and 25 Vic. Ch. 104) provides that the High Courts shall exercise such Matrimonial Jurisdiction as Her Majesty by Letters Patent shall grant and direct. Under the authority thus conferred by Parliament, the 35th Section of the Letters Patent, constituting the High Courts of Judicature, provides as follows:— “And we do further ordain that the said High Court of Judicature at Fort William in Bengal shall have jurisdiction in matters Matrimonial between our subjects professing the Christian religion, and that such jurisdiction shall extend to the local limits within which the Supreme Court now has Ecclesiastical Jurisdiction. Provided always that nothing herein contained shall be held to interfere with the exercise of any Jurisdiction in matters matrimonial by any Court not established by Royal Charter within the said Presidency lawfully possessed thereof.” In the Despatch of the Secretary of State transmitting the Letters Patent (Letter from Secretary of State, Judicial No. 24, dated 14-5-1862), the 33rd and 34th paragraphs are to the following effect:— 33. “Her Majesty’s Government are desirous of placing the Christian subjects of the Crown within the Presidency in the same position under the High Court, as to matters matrimonial in general as they now are under the Supreme Court, and this they believe to be effected by Clause 35 of the Charter. But they consider expedient that the High Court should possess, in addition, the powers of decreeing divorce, which the Supreme Court does not possess, in other words, that the High Court should have the same jurisdiction as the Court for Divorce and Matrimonial Causes in England, established in virtue of the Act 20 and 21 Vic. C. 85, and in regard to which further provisions were made by 22 and 23 Vic. C. 61, and 1. The word “Indian” omitted by Act 51 of 2001, S. 2 (w.e.f. 3-10-2001). 2. The Act has been declared in force in the Sonthal Parganas by S. 3 of the Sonthal Parganas Settlement Regulation (2 of 1872) as amended by the Sonthal Parganas Justice and Laws Regulation (3 of 1899), ibid. It has been declared by notification under S. 3 (a) of the Scheduled Districts Act (14 of 1874), to be in force in the following Scheduled Districts, namely:— The District of Hazaribagh Lohardaga and Manbhum and Pargana Dhalbhum and the Kolhan in the District of Singbhum, see Gazette of India, 1881, Pt. I, p. 504. The District of Lohardaga included that time the present district of Palamau which was separated in 1894. The District of Lohardaga is now called the Ranchi District, see Calcutta Gazette, 1899, Pt. I, p. 44. The Scheduled District in Ganjam and Vizagapatnam, see Fort St. George Gazette, 1898, Pt. I, p. 666. The Act has been extended to the new Provinces and Merged States by the Merged States (Laws) Act, 1949, and to the States of Manipur, Tripura and Vindhya Pradesh by Act (30 of 1950). Manipur and Tripura are full-fledged States now, see Act 81 of 1971. 3. The words “In India” omitted by Act 3 of 1951.

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23 and 24 Vic. C. 144. The Act of Parliament for establishing the High Court, however, does not purport to give to the Crown clearly could not so import, such for instance as those which prescribe the period of remarriage, and those which exempt from punishment clergymen refusing to remarry adulterers. All these are, in truth, matters for Indian legislation, and I request that you will immediately take the subject into your consideration and introduce into your Council a Bill for conferring upon the High Court the jurisdiction and powers of the Divorce Court in England, one of the provisions of which should be to give an appeal to the Privy Council in those cases in which the Divorce Court Act gives an appeal to the House of Lords. 34. The objects of the proviso at the end of Clause 35 is to obviate any doubt that may possibly arise as to whether, by vesting the High Court with the powers of the Court for Divorce and Matrimonial Causes in England, it was intended to take away from the Courts within divisions of the Presidency not established by Royal Charter any jurisdiction which they might have in matters matrimonial, as for instance, in a suit for alimony between Armenians or Native Christians. With any such jurisdiction it is not intended to interfere.” In addition to the Act of Parliament mentioned by the Secretary of State as regulating the jurisdiction of the English Divorce Court the Statutes 25 and 26 Vic. Ch. 81 has been passed in the year just expired (1862). The object of this Statute is to render perpetual 23 and 24 Vic. Ch. 144 the duration of which had been originally limited to two years. The draft of a Bill has been prepared to give effect to the Secretary of State instructions, but some variations from the English Statutes in respect of Procedure have been adopted. With a view to uniformity in practice in the several branches of jurisdiction, the Bill provides that the Procedure of the Code of Civil Procedure shall be followed, instead of the Rules of Her Majesty’s Court for Divorce and Matrimonial Causes in England and it omits the provision in 20 and 21 Vic. Ch. 85 respecting the occasional trial of questions of fact by juries. In respect of fees, it has been considered that the Act 20 of 1862 (lately continued by the Governor-General in Council for another year) renders special legislation unnecessary. The power of intervening in suits, given by 23 and 24 Vic. Ch. 144, to the Attorney General and the Queen’s Proctor is, in this Bill, given to the Advocate General and the Solicitor to Government. There are also other variations of a minor and verbal character. The Draft Bill having been submitted to the Judges of the several High Courts, with request that they would favour the Government with their opinions on it communications have been received, from the Judges at Calcutta and Bombay and will be laid before the Council. In these letters there are several important suggestions, and the Honourable the Chief Justice of the High Court at Calcutta has intimated that he considers it doubtful whether decrees by the High Court under the proposed Act, dissolving the marriages of persons who have been married in England would have legal effect there. The question is one of considerable difficulty as well as of great importance, and has been stated to the Secretary of State, with the view of obtaining the opinion of Her Majesty’s Law Officers, and, if necessary, some legislative measure to remove all doubts.”—Calcutta Gazette, 1863, p. 173.

Amendment Act 49 of 2001—Statement of Objects and Reasons.—The Law Commission of India in its 27th , 54th and 129th Reports and the Committee on Subordinate Legislation (11th Lok Sabha) had recommended that the tendency to obtain the adjournments on frivolous grounds in the cases pending in Courts should be curbed. The Malimath Committee also recommended that remedial measures should be taken immediately for speedy disposal of the cases pending in Courts. 2. Sections 36 and 41 of the Indian Divorce Act, 1869, sections 39 and 49 of the Parsi Marriage and Divorce Act, 1936, sections 36 and 38 of the Special Marriage Act, 1954 and sections 24 and 26 of the Hindu Marriage Act, 1955 do not contain any time-limit for

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disposal of applications for alimony pendente lite or the maintenance and education of minor children. More than 670 cases are understood to be pending in various High Courts under section 24 of the Hindu Marriage Act, 1955. 3. As part of the judicial reforms process, it is proposed to make necessary amendments in the enactments mentioned in paragraph 2 with a view to making provisions that an application for alimony pendente lite or the maintenance and education of minor children shall be disposed of within sixty days from the date of service of notice on the respondent. Amendment Act 51 of 2001—Statement of Objects and Reasons.—The Law Commission of India in its 164th Report on “The Indian Divorce Act (4 of 1869)” presented to the Government in November, 1998, has, inter alia, recommended that Parliament may enact a comprehensive law governing marriage and divorce and other allied aspects of the Christians in India. The Commission, relying on the judgments and observations of certain High Courts, has also urged the Central Government to take immediate measures— (i) to amend section 10 of the Indian Divorce Act, 1869 relating to grounds of dissolution of marriages so that the female spouses are not discriminated vis-a-vis male spouses in obtaining a decree of dissolution of marriage; (ii) to amend suitably sections 17 and 20 of the Act to do away with the procedural requirement of obtaining confirmation from the High Court in respect of a decree of dissolution of marriage or decree of nullity of marriage as such a procedure is long-drawn and strenuous. 2. With a view to ascertaining the views of the Christian community on proposal for a unified law on marriage and divorce, the Central Government convened a meeting of leaders of prominent Churches in India and the Members of Parliament belonging to the Christian community on the 28th April, 2000 but there was no consensus for bringing in a comprehensive legislation on Christian marriages and matrimonial causes. However, there is no opposition from any one to amend sections 10, 17 and 20 of the Indian Divorce Act, 1869 suitably to remove the gender inequality as contained in section 10 and to do away with the procedural delays in obtaining divorce due to the provisions contained in sections 17 and 20 of the Act. The Government, therefore, proposes to make suitable changes in the Indian Divorce Act, 1869 for removing hardship to all concerned. 3. The Commission on Review of Administrative Laws which was set up by the Central Government on the 8th May, 1998 has, inter alia, recommended repeal of various enactments including three British Statutes relating to Christian Personal Law still in force. It is proposed to repeal these enactments also as they have become obsolete.

I—PRELIMINARY 1. Short title. Commencement of Act.—This Act may be called THE 4[* * *] DIVORCE ACT, and shall come into operation on the first day of April, 1869. 2. Extent of Act.—This Act extends to 5[the whole of India except the State of Jammu and Kashmir]. Extent of power to grant relief generally.—6[Nothing hereinafter contained shall authorise any Court to grant any relief under this Act, except where the petitioner 7[or respondent] professes the Christian religion, and to make decrees of dissolution.—or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the time when the petition is presented, 4. The word “Indian” omitted by Act 51 of 2001, S. 2 (w.e.f. 3-10-2001). 5. Substituted by A.O. 1950 and Act 3 of 1951. 6. This and the succeeding three paras were substituted for the 2nd, 3rd and 4th paras by Act 25 of 1926, S. 2. 7. Inserted by Act 30 of 1927, S. 2.

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or of nullity.—or to make decrees of nullity of marriage except where the marriage has been solemnized in India, and the petitioner is resident in India at the time of presenting the petition, or to grant any relief under this Act other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition.] COMMENTS The Act applies to Nagaland also: Nihoto Sema v. Kani Li Kini Limi (1986) 1 Hindu L.R. 614 (Gau.). The Indian Divorce Act, 1869 can be invoked to dissolve the marriage between the parties professing Christian religion and who are domiciled in India, even if the marriage was solemnized out of India: Vincent Joseph Konath v. Jacintha Angela Vincent Konath A.I.R. 1994 Bom. 120. The two requirements for filing a petition for a decree of nullity of marriage are: (i) the marriage having been solemnized in India; and (ii) the petitioner being resident in India when the petition is presented: Mary Kurian v. T.T. Joseph A.I.R. 1980 Ker. 131 (D.B.). The Act does not require that the parties’ marriage should have been solemnized in any particular form; it is sufficient that one of the parties was a Christian when the petition was filed: Pramilla Khosla v. Rajnish Kumar Khosla A.I.R. 1979 Del. 78. But see G. Packia Raj v. P. Subbammal A.I.R. 1991 Mad. 319 (S.B.), where marriage between a Hindu and a Christian was performed according to ‘seethirutha’ form of marriage, held, the marriage being not valid, no relief could be claimed under S. 10 of the Divorce Act.

3. Interpretation clause.—In this Act, unless there be something repugnant in the subject or context,— 8 [(1) “High Court”.—“High Court” means with reference to any area— (a) in a State, the High Court for that State; 9 [(b) in Delhi, the High Court of Delhi; 10 [* * *]]. (c) in Manipur and Tripura, the High Court of Assam;11 (d) in the Andaman and Nicobar islands, the High Court at Calcutta; (e) in the 12[Lakshadweep], the High Court of Kerala; 13 [(ee) in Chandigarh, the High Court of Punjab and Haryana;] and in the case of any petition under this Act, “High Court” means the High Court for the area where the husband and wife reside or last resided together;] (2) “District Judge”.—14[“District Judge” means a Judge of a principal civil Court of original jurisdiction however designated;] 8. Substituted by the Adaptation of Laws (No. 2) Order, 1956 9. Substituted by Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1968, with effect from 1st November, 1966. 10. Cl. (bb) omitted by Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1973, with retrospective effect from 25th January, 1971. 11. Now Gauhati High Court. 12. Substituted by Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974, with retrospective effect from 1st November, 1973. 13. Inserted by the Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968, with effect from 1st November, 1966. 14. Substituted by A.O. 1950.

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(3) “District Court”.—“District Court” means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, 15[or of whose jurisdiction under this Act the marriage was solemnized or], the husband and wife, reside or last resided together; (4) “Court”.—“Court” means the High Court or the District Court, as the case may be; (5) “Minor children”.—“minor children” means, in the case of sons of native fathers, boys who have not completed the age of sixteen years, and, in the case of daughters of native fathers, girls who have not completed the age of thirteen years; in other cases, it means unmarried children who have not completed the age of eighteen years; 16

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(8) “Marriage with another woman”.—“marriage with another woman” means marriage of any person, being married, to any other person, during the life of the former wife, whether the second marriage shall have taken place within 17[India] or elsewhere; (9) “Desertion”.—“desertion” implies an abandonment against the wish of the person charging it; and (10) “Property”.—“property” includes, in the case of a wife, any property to which she is entitled for an estate in remainder or reversion or as a trustee, executrix, or administratrix; and, the date of the death of the testator or intestate shall be deemed to be the time at which any such wife becomes entitled as executrix or administratrix. Objects and Reasons—Clause 3.—It is proposed to remove gender inequality in the matter of grounds of divorce as available to husband and wife under section 10 of the Act by substituting that section vide clause 4 of the Bill. As the expressions “incestuous adultery” and “bigamy with adultery” as occurring in section 10 of the Act will no longer be in the said section, these expressions have become redundant. This clause, therefore, seeks to omit the definitions of those expressions. COMMENTS A petition for a decree of nullity of marriage for the consent of either party having been obtained by force or fraud has necessarily to be heard by the High Court which alone has the exclusive jurisdiction in that behalf; it is difficult to comprehend that the statute makes available such a ground only to a limited class of persons residing in the limits of the High Court’s original civil jurisdiction; thus, where neither of the parties to the marriage had resided within such limits of the Bombay High Court but had last resided at a place outside 15. Substituted by Act 51 of 2001, S. 3, for “or of whose jurisdiction under this Act” (w.e.f. 3-10-2001). 16. Cls. (6) and (7) omitted by Act 51 of 2001, S. 3 (w.e.f. 3-10-2001). Prior to their omission, Cls. (6) and (7) read as under:— “(6)“Incestuous adultery”.—“incestuous adultery” means adultery committed by a husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage by reason of her being within the prohibited degrees of consanguinity (whether natural or legal) or affinity; (7)“Bigamy with adultery”.—“bigamy with adultery” means adultery with the same woman with whom the bigamy was committed;” 17. Substituted by A.O. 1950.

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such limits, held, the Bombay High Court had jurisdiction to entertain the petition under S. 19: A v. B A.I.R. 1993 Bom. 61 (S.B.). The essential ingredients of desertion are: (i) separation of one spouse from the other; (ii) intention of the deserting spouse to put an end to marital cohabitation; but (iii) without reasonable excuse. There must also be absence of (a) the other spouse’s consent; and (b) conduct reasonably causing the deserting spouse to form intention of bringing the cohabitation to an end: Ka Ersilian Lyngdoh v. U. Kordring Rao Sad A.I.R. 1986 Gau. 42.

II—JURISDICTION 4. Matrimonial jurisdiction of High Courts to be exercised subject to Act—Exception.—The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise; except so far as relates to the granting of marriage licenses, which may be granted as if this Act had not been passed. 5. Enforcement of decrees or orders made heretofore by Supreme or High Court.—Any decree or order of the late Supreme Court of Judicature at Calcutta, Madras or Bombay sitting on the ecclesiastical side, or of any of the said High Courts sitting in the exercise of their matrimonial jurisdiction, respectively, in any cause or matter matrimonial, may be enforced and dealt with by the said High Courts, respectively, as hereinafter mentioned, in like manner as if such decree or order had been originally made under this Act by the Court so enforcing or dealing with the same. 6. Pending suits.—All suits and proceedings in causes and matters matrimonial, which when this Act comes into operation are pending in any High Court, shall be dealt with and decided by such Court, so far as may be, as if they had been originally instituted therein under this Act. 18 7. Court to act on principles of English Divorce Court.—[Omitted by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), section 4 (w.e.f. 3-10-2001).] 8. Extraordinary jurisdiction of High Court.—The High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under this Act. Power to transfer suits.—The High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such District Judge. COMMENTS The power of transfer to the High Court under S. 8 can be invoked only during the pendency of the petition and not after its dismissal. Once the petition for dissolution of marriage is dismissed, the petitioner’s remedy is an appeal therefrom under S. 55: Osborne Lewis Jordan v. Phylis Sylvia Jordan A.I.R. 1986 Del. 72 (D.B.). 18. Prior to its omission, S. 7 read as under:— “7. Court to act on principles of English Divorce Court.—Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief: Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded.”

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9. Reference to High Courts.—When any question of law or usage having the force of law arises at any point in the proceedings previous to the hearing of any suit under this Act by a District Court or at any subsequent stage of such suit, or in the execution of the decree therein or order thereon, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the case and refer it, with the Court’s own opinion thereon to the decision of the High Court. If the question has arisen previous to or in the hearing, the District Court may either stay such proceedings, or proceed in the case pending such reference, and pass a decree contingent upon the opinion of the High Court upon it. If a decree or order has been made, its execution shall be stayed until the receipt of the order of the High Court upon such reference. III—DISSOLUTION OF MARRIAGE 19 [10. Grounds for dissolution of marriage.—(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent— (i) has committed adultery; or (ii) has ceased to be Christian by conversion to another religion; or (iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or 19a [* * *] 19. Substituted by Act 51 of 2001, S. 5, for S. 10 (w.e.f. 3-10-2001). Prior to its substitution, S. 10 read as under:— “10. When 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. When wife may petition for dissolution.—Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman, or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro, or of adultery coupled with desertion, without reasonable excuse for two years or upwards. Contents of petition.—Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.” 19a. Cl. (iv) omitted by Act 6 of 2019, S. 2 (w.e.f. 1-3-2019). Prior to its omission, Cl. (iv) read as under:—“(iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or”.

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DIVORCE ACT, 1869

[S. 10

(v) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or (vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or (vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or (viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent. (2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.] Objects and Reasons—Clause 5.—This clause seeks to provide the grounds of dissolution of marriage. Existing provisions of section 10 of the Act make a distinction between the husband and the wife in the matter of grounds on which they could obtain dissolution of marriage. While adultery, without any other ground, is a ground for seeking dissolution of marriage by the husband, in the case of the petition by the wife, there is in addition another requirement that it should be incestuous adultery or bigamy with adultery or adultery coupled with cruelty or desertion for two years. Certain High Courts including the High Court of Kerala have struck down the words “incestuous” and “adultery coupled with” in section 10 on the ground of gender inequality. (Ammini E.J. v. Union of India A.I.R. 1995 Ker. 252 (S.B.); N. Sarada Mani v. G. Alexander A.I.R. 1988 Andh. Pra. 157 (S.B.)). This clause seeks to substitute the said section 10 with a new section providing same grounds for husband and wife for seeking dissolution of marriage. However, a wife may also get divorce on the ground that the husband has since the solemnization of marriage been guilty of rape, sodomy or bestiality. At present a petition for dissolution of marriage could be presented either to the District Court or to the High Court. It is proposed that the petition may henceforth be presented to the District Court only. COMMENTS In view of S. 2, the Courts has jurisdiction under S. 10 to grant a decree for dissolution of marriage where even one of the spouses is a Christian: G.S. Dhanamani v. G.V. Benerjee A.I.R. 1985 Andh. Pra. 237 (S.B.). Simply because the matrimonial advertisement was given with a different address, it cannot be said to be a fraud when in response to the advertisement the wife’s father sent a letter, the husband’s father gave a detailed reply, wherein his address had been correctly noted: A v. B A.I.R. 2001 Ker. 71. Adultery is a matrimonial offence when there is consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage: Dawn Henderson v. D. Henderson A.I.R. 1970 Mad. 104 (S.B.); Ka. Ersilian Lyngdoh v. U. Kordring Roy Sad A.I.R. 1986 Gau. 42.

S. 10-A]

DIVORCE ACT, 1869

9

It is not possible to import the definition of “adultery” found in S. 497 of the Indian Penal Code, while considering the provisions of the Indian Divorce Act. Thus, even where the husband was only having intercourse with a woman whom he had married and she not being the wife of another man, he could be said to have committed adultery: M.T. Carunya v. S. Joseph Chellappa (1996-1) 117 Mad.L.W. 130 (F.B.). Adultery is a very serious allegation. Appreciation of evidence in such cases must be careful and proper. It is only when the evidence is cogent, consistent and irrefragible that the finding of adultery could be recorded. But where the evidence of the petitioner is lacking in corroboration and is inconsistent and unnatural, no finding of adultery could be recorded even when the alleged adulterer, remained ex parte: S. Mallaiah v. Eisther (1994) 2 Hindu L.R. 45: (1994) 2 An.L.T. 356 (F.B.). It is established that adultery is not likely to be proved by direct evidence; it is proved mainly by circumstantial evidence and on the Court being satisfied about want of collusion and availability of opportunity to have guilty intercourse; it is, however, necessary to remember that the petitioner’s evidence must be such as would lead the guarded discretion of a reasonable and just man to reach the conclusion of adultery: Noreen Judith Sandhurst v. Reymond Bernard Sandhurst A.I.R. 1982 Karn. 102 (S.B.). Mere fact that a woman is seen going with a male other than her husband not a proof of adultery by itself: R. Amirda Amalraj v. Thamima (1995) 1 Hindu L.R. 611 (Mad.) (F.B.). What constitutes cruelty depends on circumstances of each particular case like the parties’ physical and mental condition, character and social status: Ka. Amal Lyngdoh v. U. Jabin Pakem A.I.R. 1987 Gau. 69. Sex plays an important role in matrimonial life. Therefore, conduct of one among the parties towards the other in the matter of sex is an important factor in the married life. Insistence of unnatural sex, continued compulsion for oral sex, sex through anus causing pain and physical injury to make the wife to concede to such unnatural sex will certainly amount to cruelty: Bini T. John v. Saji Kuruvila A.I.R. 1997 Ker. 247; Annu J. Thomas v. Thomas Koshy (1997) 67 Del.L.T. 263 (F.B.). The essential ingredients of desertion are: (i) separation of one spouse from the other; (ii) intention of the deserting spouse to put an end to marital cohabitation; but (iii) without reasonable excuse. There must also be absence of (a) the other spouse’s consent; and (b) conduct reasonably causing the deserting spouse to form intention of bringing the cohabitation to an end: Ka. Ersilian Lyngdoh v. U. Kordring Roy Sad A.I.R. 1986 Gau. 42.

[10-A. Dissolution of marriage by mutual consent.—(1) 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, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.] 20

20. Inserted by Act 51 of 2001, S. 6 (w.e.f. 3-10-2001).