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Divorce Act,1869

! The act originally called the Indian Divorce Act was framed to cover all the
christians residing in India but excluding the princely states and the settlements occupied
by Portugal and France. The act was mainly built upon the Matrimonial causes Act,1857
which was applied in 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. The law commission of
India had recommended some changes which was necessary to meet present
requirements such as amendment to sec.10 of the act so that there are no discriminations
based on gender for the grounds for divorce and also to simplify the procedures for
divorce.

! Some significant changes brought through the amendment were that the deletion of
the section which said the adulterer has to pay compensation to the husband which was
based on the concept that women formed a part of the husbandʼs property and any
damage to his property required compensation, this concept having undergone a radical
change since the victorian era when this act was framed and was long over due to be
reformed. Then there was the inclusion of women being liable to equal rights on
compensation and property. But there were also changes which favored men for example
increasing the number of grounds under which men can sue for divorce thus bringing an
equal platform for both genders. There has also been the inclusion of a section where it is
possible for both the parties to get divorce through mutual consent which was not possible
before the amendment was made and the parties had to resort to accuse each other on
the grounds mentioned in the act even though they agreed to get divorce mutually. It would
take a maximum of 18 months for a court to decide a case on mutual consent divorce.

! Getting into the details of the act Sec.10 provides for the grounds on which divorce
can be applied under the act and they are 1.Adultery, 2.Cruelty, 3.Desertion for more than
seven years,4.Insanity for more than two years, 5.Incurable leprosy for more than two
years,6.Conversion to other religion, 7.Willful refusal to consummate the marriage, 8.Not
being heard for seven years, 9.Venereal disease which is communicable for more than two
years, 10.Failure to obey the order for restitution for conjugal rights . There are three more
grounds but are exclusive to the wife and them being rape,sodomy and bestiality. There
are also provisions for declaring the marriage null and void: if the respondent party was
impotent at the time of marriage and institution of the suit,the parties are within the
prohibited degrees of consanguinity,If one of the parties was a lunatic at the time of
marriage and the last being that if either of the parties had been into a marriage already
and that wife or husband is still alive at the time of marriage and institution of the suit. The
bottom line on which a marriage can be declared null and void lies on the issue of consent.
If there is no consent then it is deemed that there was no marriage. Now parties can move
to the district or family court to get a suit initiated and that courtʼs decree would be held
final if no appeal has been referred. The mandatory procedure of getting the confirmation
from a High Court after getting a decree from a district court has been done away with and
now no such confirmations are required. Provisions for alimony under the act has been

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made very beneficial to women where a cap of one-fifth was maintained but now it was
made to be decided based on the circumstances of each case. Such alimonies are valid
only till the wife gets remarried. If the husband refuses to pay the alimony the court may
take appropriate actions to ensure, that the wife is paid the alimony she is entitled to.

Reference:

Indian Divorce Act,1869

Indian Divorce Act(Amendment Bill),2001

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