Khadija Khan

B.A.LLB II - YEAR
Roll no. 37
Family Law

Submitted to : Dr. Tariq Ashfaq

Topic: Section: 21-30 under Indian
Divorce Act, 1869
Acknowledgement 
I would like to express my special thanks of gratitude to my teacher Dr. Tariq Ashfaq. who
gave me the golden opportunity to do this project on the topic Section: 21-30 under Indian
Divorce Act,1869. Which also helped me in doing a lot of Research and I came to know about
so many new things I am really thankful. 
 

Index
 Introduction
Indian Divorce Act,1869
Some important changes brought under the
same.
Section: 21- 30 under Indian Divorce Act, 1869.

Introduction
In this project I have dealt with Indian Divorce Act, 1869 with some section that is
from Section 21- Section 30. In my detailed project I have explained the following topics: Indian
Divorce Act, 1869, some important changes brought under the same, relevant case Laws.
The act is originally called the Indian Divorce Act was intended to include all Christians living in
India but excluding the princely states and settlements that Portugal and France had occupied. 
The act was largely based on the Matrimonial Causes Act of 1857, enacted in England. 
The Supreme Court has said that in cases governed by the Divorce Act, the principles and rules d
efined by the House of Lords shall be applicable by the Indian courts

Indian Divorce Act, 1869 

One of the few codified Indian personal laws regulating Christians, the Indian Divorce Act 1869 
is.  Because personal laws apply to all religions differently, the Divorce Act is significant, 
because it affects the Christian community.  The Act contains provisions defining powers of
courts, grounds for dissolution of marriages, nullity decrees, custody issues, etc.
It amends the law relating to the divorce of people professing Christianity according to the
preamble to this Act. It also confers authority on other courts to settle such matters
 This is the only codified law regulating divorces amongst Christians. Before the independence
the British had first enforced this rule and today it continues to be effective. On 1 April 1869 the
Act came into being. This refers to the entire country except for the Jammu and Kashmir
province. This also refers to only those peoples who follow the Christian faith. the parties must
also be residing in India to seek any remedy under the Act.

Some important changes brought under the same 

Some major changes brought about by the amendment were that the removal of the section 
Which claimed that the adulterer had to pay compensation to  the husband on the basis of the 
Principle that women were part of the property of the husband and any harm to his property  
required compensation
 But there have also been developments that have benefited men to expand, for example,
 The number of grounds on which men can sue for divorce and thereby provide an equal forum 
for both.
There was also the addition of a section where divorce may be obtained by both parties by 
Mutual consent, which was not possible before the amendment that was that the parties had to
resort to suing each other on the grounds specified in the act, even though they wished to
divorce each other. It will take a court no longer than 8 months to resolve a mutual consent
divorce case. 

Section 21- 30, under Indian Divorce Act, 1859

Section- 21. Children of annulled marriage. 

                    21. Children of annulled marriage,- Where  a marriage is annulled on the ground

that a former husband or wife was living, and it is adjudged that the subsequent marriage was
contracted in good faith and with the full belief of the parties that the former husband or wife
was dead, or when a marriage is annulled on the ground of insanity, children begotten before the
decree is made shall be specified in the decree, and shall be entitled to succeed,  in the same
manner as legitimate children, to the estate of the parent who at the time of the marriage was
competent to contract. 

COMMENTS 

Legitimacy of children of null marriage 

Section 21 deals with the effect of a decree of nullity of marriage on the children be gotten
before the decree is made. It gives the benefit of legitimacy to only two categories of such
children. One, where the marriage is annulled on the ground that a former husband or wife was
living and it is adjudged that the second marriage was contracted in good faith (i.e., after making
all efforts to know the whereabouts) and with full belief of the parties that the first spouse was
dead. It clearly implies that where the first marriage is dissolved by the Church Court, the
children of the second marriage will not be entitled to this benefit. Two, where the marriage is
annulled on the ground of insanity of a spouse. The children begotten from a marriage between
the parties within the prohibited degrees of consanguinity or affinity do not get this benefit. 
This legitimacy is partial since such children are entitled to succeed to the estate of that parent
only who was at the time of marriage, competent to contract. 
 

Section- 22. Bar to decree divorce a mensa et toro; but judicial separation

obtainable by husband or wife. 

                     22. Bar to decree for divorce a mensa et toro; but judicial separation obtainable by
husband or wife- No decree shall hereafter be made for a divorce a mensa et toro, but the
husband or wife may obtain a decree of judicial separation , on the ground of adultery , or
cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall
have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as
hereinafter mentioned. 
 

 COMMENTS 

 Judicial separation instead of divorce a mensa et toro 

The expression ‘divorce a mensa et thoro does not mean dissolution of marriage’. It actually
means separation ‘from bed and board’. It only causes the separation of husband and wife from
cohabitation. Neither of the parties to such a decree can marry during the life of the other. 
This section prohibits the granting of divorce a mensa et toro and provides the relief of judicial
separation instead. There are three grounds for this relief, namely, adultery, cruelty and
desertion. Under the original provision for desertion, it was necessary that it must have been
“without reasonable excuse". This phrase has been dropped by the Indian Divorce (Amendment)
Act, 2001. This makes little difference. The matrimonial offence of desertion is committed only
when it is “without reasonable excuse” on the part of the deserting spouse. Therefore, it is of no
moment whether or not this phrase is mentioned in the statute. 
The decree of judicial separation is practically the divorce a mensa  et toro since the spouses
have no obligation to cohabit on getting this decree. Section 22 is quite express on this issue. But
the decree of judicial separation has no effect of divorce. In Thomas Kuriakore  v. Abraham
Mary, the husband submitted that an order passed for judicial separation will have the effect of
divorce, hence, he is entitled to a declaration to that effect. The court, however, held that the
petitioner cannot claim to treat judicial separation as divorce. 

Section 22 provides for judicial separation on the ground of adultery or cruelty or desertion.
Adultery of the husband in this Act includes adultery with any woman married or unmarried. In a
petition by the husband for divorce on the ground of adultery, the uncorroborated testimony of
the husband established that the wife deserted him and was guilty of cruelty. The allegations
were not rebutted by the wife. The husband was entitled to a decree for judicial separation. 

 .Cruelty 
The test laid down by LORD Pearce in Collins v.  Collins,  has been adopted. The
word ‘cruelty’ is not defined in the Act. The question of cruelty must be considered in
the light of the entire matrimonial relationship. Regard must be had to the physical
and mental conditions of the parties, to the social status, the impact of the personality
and conduct of the spouse on the mind of the other and all incidents and quarrels of
the spouses must be weighed from that point of view. Where a husband was making
wife’s life so miserable that she had to leave the village and
reside in another village and the husband threatened her even there not only with physical injury
but to burn her house, a case of cruelty is made out. 
The court is competent to pass a decree of judicial separation on a ground mentioned in this
section although the petitioner has prayed for the decree of divorce. 
A decree of judicial separation does not require confirmation by the High Court. 

 Non-cohabitation after separation decree—no ground for divorce 

The Act does not provide for non-resumption of cohabitation after a decree of judicial separation
as a ground for divorce. In T.M. Bashian v. M. Victor ,a wife who obtained a judicial
separation under section 22 of the Act applied for dissolution of the marriage after four years of
the separation decree on the ground of non-resumption of matrimonial living. While the district
judge passed the dissolution decree, the High Court held that a decree of judicial separation does
not ripen into a ground for dissolution of marriage by lapse of any time interval. Likewise,
in Amarthala Hemlata  v. Dasari Balu Rajendra Varprasad,a wife sought dissolution on
ground of non-cohabitation after separation decree and husband filed a no-objection; the trial
court applied the analogy under the Hindu Marriage Act, 1955 [ section 13(1A) ] and the Special
Marriage Act, 1954 [ section 27(1)(i) ] and granted the decree. In confirmation proceedings, the
decree was set aside. It is significant to note that even after the amendment of the Act in 2001,
while failure to comply with a restitution decree for two years or more is a ground entitling
decree-holder to seek divorce, non- resumption of cohabitation after a separation decree is not. 

 Section –23. Application for separation made by petition.  

 
 23. Application for separation made by petition,- Application for judicial
separation on any one of the grounds aforesaid, may be made by either husband or wife by
petition to the District Court or the High Court and the Court , on being satisfied of the truth of
the statements made in such petition , that there is no legal ground why the application should
not be granted, may decree judicial separation accordingly. 
 
            
STATE AMENDMENT 
Uttar Pradesh. —In section 23, the words “or the High Court” shall be omitted—U.P. Act XXX
of 1957, section 2 and Schedule. 

COMMENTS 
Application for judicial separation 
For the grant of the decree of judicial separation, both the District Court and the High Courts had
concurrent original jurisdiction before the Indian Divorce (Amendment) Act, 2001. This
Amendment has relieved the High Courts of this jurisdiction. 
Where the petitioner in a suit for divorce or in the alternative for a judicial separation was found
to have committed adultery, which conduct of the respondent was in no way condoned, it was
held that this was an adequate ground for refusing decree for judicial separation. 
 
 Section – 24. Separated wife deemed spinster with respect to after- acquired
property.  
           24. Separated wife deemed spinster with respect to after – acquired property- In
every case of judicial separation under this Act. The wife shall , from the date sentence, and
whilst the separation continues, be considered as unmarried with respect to property of every
description which she may acquire, or which may come to or devolve upon her. 
                Such property may be disposed of by her in all respects as an unmarried woman, and
on her decease of the same shall, in case she dies intestate, go as the same would have gone if her
husband had been then dead: 
               Provided that, if  any such wife again cohabits with her husband, all such property as
she may be entitled to when such cohabitation takes place shall be held to her
separate use , however , to any agreement in writing made between herself and
her husband whilst separate.  

Section-25. Separated wife deemed spinster for purpose of contract and

suing. 
                   25. Separated wife deemed spinster for purposes of contract and suing – In every
case of a judicial separation under this Act, the wife shall, whilst so separated be considered as
an unmarried woman for the purposes of contract, and wrongs and injuries, and suing and being
sued in any civil proceeding; and her husband shall not be liable in respect of any contract , acts
or costs entered into, done, omitted or incurred by her during the separation: 
Provided that where, upon any such judicial separation, alimony has been decreed or ordered to
be paid to the wife, and the same is not duly paid by the husband , he shall be liable for
necessaries supplied for her use. 
                   Provided also that nothing shall prevent the wife from joining , at any time during
such separation, in the exercise of any joint power given to herself  and her husband. 
 

 
 Section- 26. Decree of Separation obtained during absence of husband or wife

may be reversed. 
                   26. Decree of Separation obtained during absence of husband or wife may be
reversed, - Any husband or wife , upon the application of whose wife or husband , as the case
may be , a decree of judicial separation has been pronounced may, at any time thereafter , present
a petition to the Court by which the decree was pronounced , praying for a reversal of such
decree, on the ground that it was obtained in his or her absence, and that there was reasonable
excuse for the alleged desertion, where desertion was the ground of such decree. 

                The Court may , on being satisfied of the truth on the allegations of such petition,
reverse the decree accordingly; but such reversal shall not prejudice or affect the rights on
remedies which any other person would have had, in case it had not been  decreed, in respect of
 any debts, contracts, or acts of the wife incurred, entered into , or done between the times of the
sentence of separation and of the reversal thereof . 
COMMENTS 

Reversal of decree of judicial separation 

Where the respondent has not in fact appeared, he may present a petition under this section. In
his petition, he must state the reasons of his absence and the ground on which he seeks reversal
of the decree; in other words, he must state how it happened that the decree was obtained in his
absence, and he must explain the circumstances that gave rise to his absence. He must further
state circumstances calculated to satisfy the court that the decree was wrong. The court may, then
upon a review of all the circumstances alleged and proved, proceed to reverse or affirm the
decree but in coming to a decision it will be at liberty to consider how far the absence of the
petitioner was his own fault or was excusable, and whether he has taken reasonably prompt steps
for his relief. 
Similar provisions are made also in the Hindu Marriage Act, section 10(2) and the Special
Marriage Act, section 23(2). 
 

Section- 27. Deserted wife may apply to Court for protection. 

                    27. Deserted wife may apply to Court for protection – Any wife to whom section-4
of the Indian Succession Act, 1865 *(10 of 1865), does not apply , may , when deserted by her
husband , present a petition to the District Court or the High Court at any time after such
desertion for an order to protect any property which she may have become possessed or may
become possessed after such desertion , against her husband or his creditors, or any person
claiming under him.  

STATE AMENDMENT 

Uttar Pradesh. —In section 27, the words “or the High Court” shall be omitted—U.P. Act XXX
of 1957, section 2 and Schedule. 
 

Section- 28. Court may grant protection – order. 

                    28. Court may grant protection order,- The Court , if satisfied of the fact of such
desertion , and that the same was without reasonable excuse, and that wife is maintaining herself
by her owns industry or property , may make and give to the wife an order protecting her
earnings and other property from her husband and all creditors and persons claiming under him.
Every such orders shall state the time at which the desertion commenced, and shall as regards all
persons dealing with the wife in reliance there on, be conclusive as to such time. 
 
Section- 29. Discharge of variation of orders.
 
                   29. Discharge of variation of orders,- The husband or any creditor of, or persons
claiming under him, may apply to the Court by which such orders was made for the discharge or
variation thereof, and the Court , if the desertion has ceased, or if any other reason it thinks fit so
to do, may discharge or vary the order accordingly. 
 
Section-30. Liability of husband seizing wife’s property after notice of order. 

                   30. Liability of husband seizing wife’s property after notice of order,- If the
husband , or any creditor of , or person claiming under, the husband , seizes or continues to hold
any property of the wife after notice of any such order, he shall be liable, at the suit of the wife
(which she is hereby empowered to bring ), to return or deliver to her the specific property , and
also to pay her a sum equal to double its value. 
 
Conclusion 
The Indian Divorce Act, `1869 provides various certain sections that were very useful in todays
world grounds for dissolution of marriage section-10, Divorce by mutual consent section10 A,
Nullity of marriage, restitution of conjugal rights,custody of children etc. and one most
important thing this act had provided is that now parties can move to the districts or family
courts to get a suit done and that court would be held final decision if no appeal had done.

 
Bibliography
 Kusum Desai: Indian Law of Marriage and Divorce
 https://indiankanoon.org

 Indian Divorce Act, 1869 Bare Act