Question: Discuss the grounds for divorce under the Indian Divorce Act,

1869
Indian Divorce Act 1869
This is the only codified law regulating divorces amongst Christians. The British had first enacted this law
before Independence and it continues to be force today.
The Act came into existence on 1 April 1869. It applies only to those people who profess the Christian
religion.
According to the preamble of this Act, it amends the law relating to the divorce of people professing
Christianity. It even confers upon certain courts the jurisdiction to settle these matters.
The parties must also reside in India to apply for any remedy under the Act. The Act contains provisions
defining powers of courts, grounds for dissolution of marriages, nullity decrees, custody issues, etc.
The act was mainly built upon the Matrimonial causes Act, 1857 which was appliedin 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.
Grounds for Dissolution of Marriage
Section 10 of the Indian Divorce Act contains grounds on which a court may dissolve a marriage.
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
(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(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.]
Divorce by Mutual Consent
Dissolution of marriage by mutual consent 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. On the motion of both
the parties made not earlier 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. [Section 10-A].
Impleading Co-respondent as Adulterer
Adulterer or adulteress to be co-respondent On a petition for dissolution of
marriage presented by a husband or wife on the ground of adultery, the petition
shall make the alleged adulterer or adulteress a co-respondent, unless the
petitioner is excused by the Court from so doing on any of the following grounds,
namely: that the wife, being the respondent is leading the life of a prostitute or the
husband being respondent is leading an immoral life and that the petitioner knows
of no person with whom the adultery has been committed; that the name of the
alleged adulterer or adulteress is unknown to the petitioner although the petitioner
has made due efforts to discover it; that the alleged adulterer or adulteress is dead.
[Section 11].
In two cases the Gauhati High Court refused to confirm the decrees for non-
compliance of this requirement.
In Wenmanard Marak vs. Poiby Momin (27.01.1988 - GUHC) the husband alleged
adultery by the wife and he named the adulteror at the hearing. Even the wife
admitted the charge. The court, however, did not grant the decree. It held that. the
adulteror should have been made a co-respondent unless he was excused on any of
the three grounds mentioned in the section vis. (a) the respondent is leading the life
of a prostitute and the petitioner does not know of the person with whom adultery
has been committed, (b) the name of the alleged adulteror is not known to the
petitioner even though efforts have been made; and (c) the alleged adulteror is
dead. If there is no exemption and he has not been impleaded then the petition is
not maintainable. According to the court, there are two reasons for this - first,
adultery is a serious matrimonial charge which casts a reflection on the co-
respondent; and second, when the respondent disputes the charge, the impleading
of the adulteror prevents collusive divorce.
In the second case, Lal Changmunga vs. Lianpari (07.01.1988 - GUHC), also, the
husband alleged that the wife had intimacy with someone. The court held that mere
intimacy does not imply adultery. Moreover, the husband had not complied with the
mandatory requirement of impleading the alleged adulteror as co-respondent.
Accordingly, the decree of dissolution of marriage passed by the district judge was
not confirmed in proceedings under section .17.
Absence of collusion:
The Court must satisfy that there is no collusion between the parties to obtain the
dissolution of marriage, or any fraud or coercion etc. on any one of the parties by
the other. Upon any such petition for the dissolution of a marriage, the Court shall
satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also
whether or not the petition has been in any manner accessory to, or conniving at,
the going through of the said form of marriage, or the adultery, or has condoned
the same, and shall also enquire into any counter charge which may be made
against the petitioner. [Section 12].
Dismissal of petition
Incase the Court, on the evidence in relation to any such petition, is satisfied that
the petitioner’s case has not been proved, or is not satisfied that the alleged
adultery has been committed, or finds that the petitioner has, during the marriage,
been accessory to, or conniving at, the going through of the said form of marriage,
or the adultery of the other party to the marriage, or has condoned the adultery
complained of, or that the petition is presented or prosecuted in collusion with
either of the respondents, then and in any of the said cases the Court shall dismiss
the petition. [Section 13].
Power of Court to pronounce decree for dissolving marriage
Incase the Court is satisfied on the evidence that the case of the petitioner has been
proved, and does not find that the petitioner has been in any manner accessory to,
or conniving at, the going through of the said form of marriage, or the adultery of
the other party to the marriage, or has condoned the adultery complained of, or
that the petition is presented or prosecuted in collusion with either of the
respondents, the Court shall pronounce a decree declaring such marriage to be
dissolved: Provided that the Court shall not be bound to pronounce such decree if it
finds that the petitioner has, during the marriage, been guilty of adultery, or if the
petitioner has, in the opinion of the Court, been guilty of unreasonable delay in
presenting or prosecuting such petition, or of cruelty towards the other party to the
marriage, or of having deserted or wilfully separated himself or herself from the
other party before the adultery complained of, and without reasonable excuse, or of
such wilful neglect or misconduct of or towards the other party as has conduced to
the adultery. Condonation No adultery shall be deemed to have been condoned
within the meaning of this Act unless where conjugal cohabitation has been
resumed or continued. [Section 14].
Relief in case of opposition on certain grounds
In any suit instituted for dissolution of marriage, if the respondent opposes the
relief sought on the ground, in case of such a suit instituted by a husband, of his
adultery, cruelty, or desertion or, in case of such a suit instituted by a wife, on the
ground of her adultery or cruelty or desertion, the Court may in such suit give to the
respondent, on his or her application, the same relief to which he or she would have
been entitled in case he or she had presented a petition seeking such relief, and the
respondent shall be competent to give evidence of or relating to such adultery,
cruelty or desertion. [Section 15].
Decree for dissolution to be nisi
Every decree for dissolution of marriage made by a High Court shall, in the first
instance, be a decree nisi, not to be made absolute till after the expiration of such
time, not less than six months from the pronouncing thereof, as the High Court, by
general or special order from time to time, directs. Collusion:– During that period
any person shall be at liberty, in such manner as the High Court by general or
special order from time to time directs, to show cause why the said decree should
not be made absolute by reason of the same having been obtained by collusion or
by reason of material facts not being brought before the Court. On cause being so
shown, the Court shall deal with the case by making the decree absolute, or by
reserving the decree nisi, or by requiring further inquiry, or otherwise as justice
may demand. The High Court may order the costs of counsel and witnesses and
otherwise arising from such cause being shown, to be paid by the parties or such
one or more of them as it thinks fit, including a wife if she has separate property.
Whenever a decree nisi, has been made, and the petitioner fails within a reasonable
time, to move to have such decree made absolute, the High Court may dismiss the suit.
[Section 16].
Power of High Court to remove certain suits
During the progress of the suit in the Court of the District Judge, any person
suspecting that any parties to the suit are or have been acting in collusion for the
purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court
by general or special order from time to time directs, to apply to the High Court to
remove the suit under Section 8, and the High Court shall thereupon, if it thinks fit,
remove such suit and try and determine the same as a Court of original jurisdiction,
and the provisions contained in Section 16 shall apply to every suit so removed; or
it may direct the District Judge to take such steps in respect of the alleged collusion
as may be necessary, to enable him to make a decree in accordance with the justice
of the case. [Section 17].
Under the Indian Divorce Act mere incompatibility between spouses or the prospect of unhappy
married life cannot be a valid ground either for divorce or for a declaration that the marriage was null
and void.430 - Solomon v. Josephine, AIR 1959 Mad. 151
Minor psychological problems are also no ground to declare a marriage void, even, if it existed at the
time of marriage.432 Joy Kutty Mathew v. Valasamma Kuruvilla, AIR 1990 Ker. 262.
Irretrievable breakdown of marriage:
The Law Commission in its 15th Report made a strong recommendation for reformation of the Divorce
Act. The Ministry of Law reciprocated to this proposal and drafted a Bill and referred it to the Law
Commission again. After collecting public opinion, the Law Commission in its 22nd Report in the year,
1961 reiterated its stand for amending the Marriage Law of Christians. Though the legislative concern
remained in limbo, the poor spouses of irretrievably broken down matrimonial ties in the Christian
Community remain without any relief while members of other communities are privileged to be
benefited by realistic relief‟s by the laws applicable to them.451
Divorce being an evil, it must be avoided as far as possible. But some
times, this evil becomes a necessity. When it is impossible for the parties to carry
on their union with mutual love and affection, it is better to allow them to be
separate instead of compelling them to live together in an atmosphere of hatred
and sufferings. Moreover, it is necessary to amend Section 10 of the Divorce Act,
1869 and may be inserted the new ground of „irretrievable breakdown of
marriage . It will be helpful to the grievance couple for thei ‟ r dissolution of
marriage as soon as possible, due to which they may live happily in their
remaining valuable life as the life of human being is very short.