THE INDIAN DIVORCE ACT, 1869

data-matched-content-ui-type="image_card_sidebyside" data-matched-content-rows-num="1" data-matched-content-columns-num="4"

During the British period in India, the Governor General in Council applied the Matrimonial Causes Act, 1857 which regulated the divorce under Christian law in Britain, to India as well with slight modifications. In India the Act came to be known as The Indian Divorce Act, 1869 which aimed at amending the laws dealing with divorce among Christians and other matrimonial reliefs; grant authority on the District Court and High Court to deal with matters relating to matrimonial causes. The Act came into force on first day of April, 1869 which contains fourteen chapters and sixty two sections.

The Act provides that the Courts shall have authority to grant relief under the legislation, only if the parties to the dispute profess Christianity. A decree for divorce shall be obtained only if, at the time of presenting petition, the husband and wife are domiciled in India. The Act further provides that for allowing a decree for nullity of marriage, the petitioner should be resident of India when the petition in this regard is submitted. For any other relief under the current legislation, the petitioner should be residing in India during the petition is submitted.

The District Court and High Court shall have power to grant divorce and other causes as matrimonial reliefs to parties to the marriage in harmony with the provisions of the Act. But the Court shall exercise jurisdiction to endow the parties with marriage licenses as if the Act is not yet passed. The Act recognizes the jurisdiction conferred on the Supreme Court and High Courts to grant matrimonial reliefs and any order made in this behalf as if such authority had been conferred under the Act. If any suit relating to the matrimonial causes is pending before the High Court, such cases shall be dealt by that court itself as specified under the Act.

In relation to the provisions stipulated under the present legislation, the High Court and the District Courts shall have authority to grant reliefs according to the principles of the English Courts in all matters connected therewith. The Act confers power on the High Court to entertain suits and other issues directly which is instituted in the District Court. The High Court shall withdraw and transfer any case for trial and disposal to other District Court in conformity with the Act.

data-matched-content-ui-type="image_card_sidebyside" data-matched-content-rows-num="1" data-matched-content-columns-num="4"

A petition for dissolution of marriage shall be presented by the husband to the Court on the ground that his wife is guilty of the offence of adultery. The wife may approach the Court for divorce on the ground that her husband has used his service for another religion and had married some other woman or is guilty of bigamy, bigamy with adultery, rape, sodomy, bestiality and such other grounds insisted by the Act. The Court on receiving the petition shall consider the statement of facts and conduct necessary inquiry before arriving at a conclusion.

Where the Court is not satisfied with the allegations raised by the petitioner, the Court shall dismiss the petition. The Act does not prevent the aggrieved party from filing an appeal in the High Court against the order of the District Court. After examining the evidences, if the Court is satisfied with the contentions raised by the petitioner, the Court shall pass a decree dissolving marriage, but shall include certain conditions and limitations in such decree. The Court is also empowered to grant a decree to nullify marriage on the argument that husband or wife is impotent; they are within a relationship prohibited by law, unsoundness of mind etc. The Act provides provision for judicial separation on application from either of the parties to the marriage.

Where the husband or wife leaves the other without sufficient cause, the other party shall file a petition for restitution of conjugal rights, and the Court on convinced with the arguments shall pass a decree in this regard. The Court shall determine the custody of children where the parents have obtained a decree of judicial separation. The procedures to be followed by the Court shall be in accordance with the Code of Civil Procedure. The Act empowers the High Court to frame rules to comply with the provisions of the Act.

data-matched-content-ui-type="image_card_sidebyside" data-matched-content-rows-num="4" data-matched-content-columns-num="4"

But the Act cannot be declared as a comprehensive enactment because the fundamental purpose behind the legislation was to amend the Christian matrimonial law and not to ‘frame’ or ‘codify’ new law. Moreover, the Courts are required to Act according to the procedure of the English Courts and the Act is formulated similar to the provisions of Christian law in England. To overcome the drawbacks, the Central Government enacted the Indian Divorce (Amendment) Act, 2001. In the amending Act, the right of husband to claim compensation from the adulterer was deleted. Many drastic changes were also made in the status of women and the discriminating provisions relating to property was also modified. Hence, the amendment made landmark alterations in the Indian Divorce Act to make it suitable under the Indian Law.