Dr.

Kavita Goel
East India Company assumed ruling power in
India and established its own courts. With the
establishment of the Supreme Courts, the
Common Law of England was made applicable
to India on many subjects including marriage
and divorce among the Christian community
Indian Christian Marriage Act, 1872
Indian Divorce Act 1869
+ The Law Commission in its Fifteenth Report in 1960 and its
Twenty Second Report in 1961 recommended replacement
of these legislation by a comprehensive new legislation.
+ Christian Marriage and Matrimonial Causes Bill was
accordingly drafted and was presented in the Lok Sabha in
1962 but lapsed
+ The Law Commission of India in its 164th Report: The
Indian Divorce (Amendment) Act 2001
– There could be no consensus for bringing in a comprehensive
legislation on Christian marriages and matrimonial causes.
However, there was no opposition from any one to amend
sections 10, 17 and 20 of the Indian Divorce Act, 1869 suitably
to remove the gender inequality.
+ This Act extends to the whole of India except the State of Jammu
and Kashmir .
+ Extent of power to grant relief under this Act 1869
– where the petitioner or respondent professes the Christian religion,
+ Decrees of dissolution of marriage
– where the parties to the marriage are domiciled in India at the time
when the petition is presented,
+ Decrees of nullity of marriage
– where the marriage has been solemnized in India and the petitioner is
resident in India at the time of presenting the petition,
+ To grant any relief under this Act, other than a decree of dissolution
of marriage or of nullity of marriage
– where the petitioner resides in India at the time of presenting the
petition.
+ Indian Divorce Act, 1869
+ The Supreme Court made a strong plea for introducing a change in
the archaic law in Jorden Diengdeh v. S.S. Chopra, 1985 AIR 935
+ The constitutionality of the controversial Section 10 was again
challenged in Mrs. Zachariah v. Union of India, 24 February 1995,
where the court directed the Union to take a decision towards
amending the Act within 6 months.
+ The Kerala High Court in Ammini E J. v. Union of India again not
only highlighted the discrimination but struck down certain phrases
in order to give meaningful relief to the petitioners. The court
quashed the provision which requires a Christian wife to prove that
her husband had been indulging in incestuous adultery or adultery
coupled with cruelty or desertion in order to obtain divorce.
+ 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 would be dissolved on the ground that since
the solemnization of the marriage, the respondent:
– Has committed adultery
– Has ceased to be Christian by conversion to another religion
– Has been incurably of unsound mind for a continuous period of not
less than two years immediately preceding the presentation of the
petition.
– 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.
– Has for a period of not less than two years immediately proceedings
the presentation of the petition, been suffering from venereal disease
in a communicable form.
 – 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.
– Has willfully refused to consummate the marriage and the marriage
has not therefore been consummated.
– has deserted the petitioner for at least two years immediately
preceding the presentation of the petition;
– 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.
– 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 dissolution of a marriage,
+ 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.
 Not earlier than six months after the date
of presentation of the petition and not later
than eighteen months, the Court shall, pass
Sec 10A-added in 2001
a decree declaring the marriage to be
dissolved-if not withdrawn by both the
parties
• living separately for a period of two years
or more,
• not been able to live together
+ Adulterer or Adulteress as Co-respondent-sec 11
– Prostitute or relationship with many
– name of the alleged adulterer or adulteress is unknown
– Adulterer or adulteress is dead
+ Absence of Collusion-sec 12
+ accessory to or conniving at, matrimonial offence-sec 12
+ prosecuted in collusion with either of the respondents-Sec
13
+ Condonation- Sec 13: No adultery shall be deemed to have
been condoned within the meaning of this Act unless where
conjugal cohabitation has been resumed or continued
+ Delay in filling petition
+ Petitioner guilty of adultery
+ Petitioner guilty of Cruelty
+ willfully separated himself or herself from the
other party
+ such willful neglect or misconduct of or
towards the other party as has conducted to
the adultery.
+ Every decree for a 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.
+ Any husband or wife may present a petition to
the District, praying that his or her marriage
may be declared null and void.
+ Impotency: at the time of the marriage and at
the time of the institution of the suit;
+ Parties are within the prohibited degrees of
consanguinity
+ that either party was a lunatic or idiot at the time
of the marriage
+ that the former husband or wife of either party
was living at the time of the marriage
+ consent of either party was obtained by force or
fraud.
+ Right to succeed to parent who was
competent to contract at the time of marriage
as legitimate if
– Second marriage on honest belief of death of
previous spouse
– Marriage annulled on the ground of insanity
+ Who: husband or wife
+ On what grounds: adultery, Cruelty or
desertion of 2 years
+ Where: District Court
+ Separated wife be considered as Spinster or
unmarried
– For property sec 24
– For contracts, wrongs, injuries or suing-sec 25
 Necessary supplied to her
+ On application of either petitioner or
respondent on ground that
– Absence of husband or wife
– Desertion with reasonable cause
+ Without prejudice to rights of other parties
Who can claim: Deserted wife can claim

How: By petition to District Court

Against whom: Husband or his creditors or

any person under him
For which Property: acquired after
desertion
Fact of desertion by husband

Without reasonable cause

Wife maintaining herself by her own property

Order with the date of desertion

Order shall be conclusive for the date of desertion

 Who can
When: apply; husband
desertion has or his creditor
ceased or
other reasons or person
under him
 To return Also to pay
At the suit or deliver sum equal
of wife specific to double
property its value
 About property, contracts Valid order for all
and suing as she would be in persons dealing
position as if she obtained with wife untill
Judicial separation reversed
 Who can Husband or wife
claim

Spouse has withdrawn from the society of another without

Ground reasonable cause

Where District Court

Plea by Ground for a suit for judicial separation or for a nullity

Respondent of Marriage
 Wife can claim

In any suit whether

instituted by husband or
wife

Expenses of court
proceeding and alimony
pending the suit

Alimony petition to be
disposed of within 60 days
 When: a decree of dissolution of the marriage or a Judicial Separation is obtained by wife

Order: District Court may order husband to pay gross sum or annual sum or monthly sum or
weekly payment

Term: not exceeding her own life

Considerations: regard to her fortune, liability of the husband and conduct of the parties

Discharge or modification or revival of order

 Court may direct
alimony to be paid
Court may appoint a
either to wife or her
new trustee if requires
trustee(approved by
court)
 Sec 125: wife, Minor Child and Parents
Sufficient means to Neglect or refusal Unable to maintain
maintain to maintain himself or herself

Special Requirements for wife: Adultery,

Refusal to stay with husband,
Separation by mutual consent
In Suit for judicial
separation-interim order
or order after decree

In Suit for Dissolution

or Nullity-interim order
or order after decree
+ Welfare of child as the first and paramount
consideration
+ Rosy Jacob V. Jacob A. Chakramakkal, AIR 1973
Sc 2090: variation in custody order if welfare
of wards demand and children are mere
chattels nor plaything for parents
+ Thirty Hoshie Dolikuka V. Hoshiam Shavaksha
Dolikuka, AIR 1982 Sc 1276: special
responsibility of the court to consider the
welfare and interest of minor
Age of minority under sec 3(5): below 16 in case of boy and below 13 in
case of girl.

Title of guardian to the custody of Ward: return of the custody to

guardian in welfare of the child and for that purpose ward can be
arrested to restore the custody

Rajan Chawla V. Lisbon John Miranda: no significance of religion in

case of custody
+ Power to order settlement of wife’s property for
benefit of husband and children.-Whenever the
Court pronounces a decree of dissolution of
marriage or judicial separation for adultery of the
wife, if it is made to appear to the Court that the
wife is entitled to any property, the Court may, if
it thinks fit, order such settlement as it thinks
reasonable to be made of such property or any
part thereof, for the benefit of the husband, or of
the children of the marriage, or of both.
The District Court may, before passing a decree for dissolution of the marriage or a decree
of nullity of marriage, inquire into the existence of ante-nuptial or post-nuptial settlements
made on the parties whose marriage is the subject of the decree, and may make such
orders, with reference to the application of the whole or a portion of the property settled,
whether for the benefit of the husband or the wife, or of the children (if any) of the
marriage, or of both children and parents, as to the Court seems fit:

Provided that the Court shall not make any order for the benefit of the parents or either of
them at the expense of the children.
Time for appeal has expired
without an appeal
Appeal has been presented but
has been dismissed
Decree or dismissal has become
final
+ No clergyman in Holy Orders of the Church of
England shall be compelled to solemnize the
marriage of any person whose former
marriage has been dissolved on the ground of
his or her adultery, or shall be liable to any
suit, penalty or censure for solemnizing or
refusing to solemnize the marriage of any such
person.
+ Code of Civil Procedure
+ Petition to state absence of collusion or
connivance
+ Suits on behalf of lunatics
+ Suits by Minors
+ Mode of taking evidence
+ Power to close doors
+ Appeal to Supreme Court
Bare Act Indian Divorce Act 1869
Christian Personal Law By Dr. S R Myneni
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