PREAMBLE
I. PRELIMINARY
Section 3: Interpretation-clause.
II. JURISDICTION
Section 4: Matrimonial jurisdiction of High Courts to be exercised subject to Act. Exception.
Section 5: Enforcement of decrees or orders made heretofore by Supreme or High Court.
Section 7: [Omitted.]
Section 8: Extraordinary jurisdiction of High Court. Power to transfer suits.
Section 9: Reference to High Court.
III. DISSOLUTION OF MARRIAGE
Section 10: Grounds for dissolution of marriage.
Section 10A: Dissolution of marriage by mutual consent.
Section 11: Adulterer to be co-respondent.
Section 12: Court to be satisfied of absence of collusion.
Section 13: Dismissal of petition.
Section 14: Power to Court to pronounce decree for dissolving marriage. Condonation.
Section 15: Relief in case of opposition on certain grounds.
Section 16: Decrees for dissolution to be nisi. Collusion.
Section 17: Power of High Court to remove certain suits.
Section 17A: [Omitted.]
IV. NULLITY OF MARRIAGE
Section 18: Petition for decree of nullity.
Section 19: Grounds of decree.
Section 20: [Omitted.]
Section 21: Children of annulled marriage.
V. JUDICIAL SEPARATION
Section 23: Application for separation made by petition.
Section 24: Separated wife deemed spinster with respect to after-acquired property.
Section 25: Separated wife deemed spinster for purposes of contract and suing.
Section 26: Decree of separation obtained during absence of husband or wife may be reversed.
VI. PROTECTION-ORDERS
Section 27: Deserted wife may apply to court for protection.
Section 28: Court may grant protection-order.
Section 29: Discharge or variation of orders.
Section 30: Liability of husband seizing wife’s property after notice of order.
Section 31: Wife’s legal position during continuance of order.
VII. RESTITUTION OF CONJUGAL RIGHTS
Section 32: Petition for restitution of conjugal rights.
Section 33: Answer to petition.
VIII. DAMAGES AND COSTS
Section 34: [Omitted.]
Section 35: [Omitted.]
IX. ALIMONY
Section 36: Alimony pendente lite.
Section 37: Power to order permanent alimony. Power to order monthly or weekly payments.
Section 38: Court may direct payment of alimony to wife or to her trustee.
X. SETTLEMENTS
Section 39: [Omitted.]
Section 40: Inquiry into existence of ante-nuptial or post-nuptial settlements.
XI. CUSTODY OF CHILDREN
Section 41: Power to make orders as to custody of children in suit for separation.
Section 42: Power to make such orders after decree.
Section 43: Power to make orders as to custody of children in suits for dissolution or nullity.
Section 44: Power to make such orders after decree or confirmation.
XII. PROCEDURE
Section 45: Code of Civil Procedure to apply.
Section 46: Forms of petitions and statements.
Section 47: Petition to state absence of collusion. Statements to be verified.
Section 48: Suits on behalf of lunatics.
Section 50: Service of petition.
Section 51: Mode of taking evidence.
Section 52: Competence of husband and wife to give evidence as to cruelty or desertion.
Section 53: Power to close doors.
Section 55: Enforcement of, and appeals from, orders and decrees. No appeal as to costs.
Section 56: Appeal to the Supreme Court.
XIII. RE-MARRIAGE
Section 57: Liberty to parties to marry again.
Section 58: English clergyman not compelled to solemnize marriages of persons divorced for adultery.
Section 59: English Minister refusing to perform ceremony to permit use of his Church.
XIV. MISCELLANEOUS
Section 61: Bar of suit for criminal conversation.
Section 62: Power to make rules.
SCHEDULE OF FORMS
Form 2: Respondent’s statement in answer to No. 1.
Form 3: Co-respondent’s statement in answer to No. 1.
Form 4: Petition for decree of Nullity of Marriage.
Form 5: Petition by wife for judicial separation on the ground of her husband’s adultery.
Form 6: Statement in answer to No. 5.
Form 7: Statement in reply to No. 6.
Form 8: Petition for a judicial separation by reason of cruelty.
Form 9: Statement in answer to No. 8.
Form 10: Petition for reversal of decree of separation.
Form 11: Petition for protection-order.
Form 12: Petition for Alimony pending the suit.
Form 13: Statement in answer to No. 12.
Form 14: Undertaking by minor’s next friend to be answerable for respondent’s costs.
Chapter XVI – Statement of Objects and Reasons
Indian Divorce Act: Detailed Information
1. Historical Background
The Indian Divorce Act, 1869 was enacted by the British government under colonial rule, primarily aimed at governing divorce proceedings for Christian married couples in India. Prior to this Act, there was no specific law for Christian marriages and divorces in India, and the dissolution of marriages was subject to the personal laws of the Christian community.
Before the Indian Divorce Act, Christians in India could divorce under personal laws based on ecclesiastical laws (laws related to the Church). However, the personal laws provided for very limited grounds and procedures for divorce.
The Indian Divorce Act, 1869 was the first statutory law that allowed the dissolution of Christian marriages in India. The law was modeled after the Divorce and Matrimonial Causes Act of 1857 in the United Kingdom.
2. Key Provisions and Changes
The Indian Divorce Act underwent various changes over time. Below are the key provisions and their updates:
Pre-2020 Provisions
The Indian Divorce Act initially allowed divorce for specific reasons like adultery, cruelty, desertion, and insanity. The Act also provided for judicial separation, maintenance, alimony, and custody of children in the event of a marriage breakdown.
Recent Changes (2020 Amendment)
The Indian Divorce Act, 1869 was amended in 2020 under the Indian Divorce (Amendment) Act, 2020, bringing significant changes aimed at promoting gender equality and simplifying divorce proceedings for Christian couples. These changes were aimed to remove discriminatory provisions and align the law with contemporary views on divorce, human rights, and gender justice. The Indian Divorce (Amendment) Act, 2020 received presidential assent in 2021.
Here are the major amendments:
- Dissolution of Marriage by Mutual Consent (Section 10A):
- The amendment introduced Section 10A, allowing divorce by mutual consent for Christian couples. Previously, mutual consent divorce was not provided under the Indian Divorce Act. This change enabled Christian couples to seek divorce if both parties agreed, which made the process more accessible and less contentious.
- Grounds for Divorce (Section 10):
- Previously, divorce could only be granted on limited grounds (e.g., adultery, cruelty, desertion, and conversion to another religion). The amendment expanded the grounds to include irretrievable breakdown of marriage. This allows the court to grant a divorce even if the marriage is irreparably broken, reducing the wait time and the burden of proving specific grounds like adultery.
- Reduction of Waiting Period for Divorce (Section 10A):
- The amendment reduced the waiting period for divorce from two years to one year for couples seeking a divorce by mutual consent. This change is intended to make divorce proceedings faster and more efficient.
- Provision for Alimony (Section 37):
- The amended law improved provisions for alimony or maintenance payments for spouses, ensuring that both men and women are supported post-divorce. While previously it was often the wife who sought alimony, the amended law opens the door for alimony to be granted to men as well, reflecting modern understandings of marriage and gender roles.
- Custody of Children (Sections 41-44):
- The amendment focused on ensuring child custody matters are handled in a more child-centric manner. The court now considers the best interests of the child, rather than the traditional idea of automatically awarding custody to the mother.
- This reflects the growing awareness of both parents’ rights and duties in child upbringing post-divorce.
- Removal of Discriminatory Provisions:
- One of the major changes was the removal of discriminatory practices, particularly those related to gender bias. For example, a wife could file for divorce on grounds of her husband’s adultery, but the husband could not file on similar grounds. This discrimination was removed by the 2020 amendment, ensuring equal rights for both genders.
3. Current Key Features of the Indian Divorce Act
- Jurisdiction: The Act specifies the jurisdiction of the High Courts to hear divorce petitions from Christian couples. The High Courts have the authority to grant decrees of divorce, judicial separation, and nullity of marriage. These decrees can be appealed to the Supreme Court of India under specific circumstances.
- Grounds for Divorce:
- Adultery: If one spouse is found guilty of committing adultery, the other spouse can petition for divorce.
- Cruelty: Either spouse can file for divorce if they have been subjected to cruelty by the other.
- Desertion: If one spouse deserts the other for more than two years, the deserted spouse may file for divorce.
- Incurable Insanity: A person suffering from incurable mental illness can be the subject of a divorce petition.
- Mutual Consent (Section 10A): Allows Christian couples to seek divorce by mutual consent, making the process easier for couples who are in agreement.
- Judicial Separation: A married couple may opt for judicial separation, where they live apart without actually dissolving the marriage. It is a temporary arrangement that may last up to two years and can later be converted into a divorce.
- Alimony and Maintenance: The Indian Divorce Act provides for both temporary and permanent alimony or maintenance for the spouse seeking support post-divorce. The court also has the power to direct alimony payments in the form of monthly or weekly payments. This provision applies to both men and women, ensuring equal rights for both genders.
- Custody of Children:
- The court takes the best interests of the children into account when deciding custody arrangements. Both parents have the right to seek custody, and the court may also appoint a guardian for the children, who is responsible for their welfare.
- Re-marriage: After a divorce decree is confirmed, both parties are legally allowed to remarry six months later, unless an appeal to the Supreme Court is made.
- Appeals and Enforcement:
- Appeals against divorce decrees made by the High Court can be made to the Supreme Court of India, with provisions for the enforcement of divorce decrees in the same manner as civil court orders.
- Protection Orders:
- In cases where a spouse is deserted or faces violence, the wife can apply for a protection order, safeguarding her financial and property rights, which the husband is prohibited from seizing.
4. Impact of the 2020 Amendment
The Indian Divorce (Amendment) Act, 2020, significantly modernized the divorce process for Christians in India, bringing it closer to international norms, promoting gender equality, and facilitating quicker and easier divorce proceedings. It also addresses concerns about gender justice, by ensuring that both men and women are treated equally under the law.
Key changes like divorce by mutual consent, reduced waiting periods, and equal rights for alimony have empowered Christian couples, giving them more autonomy in deciding the future of their relationships.
Furthermore, the provision for irretrievable breakdown of marriage allows for divorce even when couples fail to prove traditional grounds like adultery or cruelty, acknowledging that some marriages cannot be salvaged, even with time and effort.
The emphasis on custody of children in a manner that prioritizes the child’s welfare over gender biases is another progressive change.
5. Conclusion
The Indian Divorce Act, 1869 continues to be a cornerstone of family law in India, offering Christian couples a legal framework to dissolve their marriages, seek judicial separation, or nullify their marriages under specified grounds. With the 2020 amendment, the Act has become more inclusive and in line with modern-day expectations of gender equality, faster judicial processes, and a focus on the best interests of children and spouses. This makes the Indian Divorce Act a more accessible and equitable law for all.