Divorce Act 1869

Table of Content
DIVORCE ACT 1869

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.................... 1
INTRODUCTION: ............................................................... ........................................
.............................................. 5
DIFFERENCE BETWEEN THE DIVORCE LAWS IN INDIA AND UNITED KINGDOM:

............................................................... .. 6

MAIN
LEGISLATION:..............................................................................................................................................
.......................... 6
GROUNDS FOR DIVORCE:
............................................................................................................................................................... 7
PROCEDURE FOR OBTAINING DIVORCE:
........................................................................................................................................ 8
STATEMENT OF OBJECTS AND REASONS OF THE ACT:
................................................................................................................... 8
DEFINITIONS AND INTERPRETATION:

......................................................................................................................... 9
INTERPRETATIONS OF THE ABOVE DEFINITIONS ARE:
................................................................................................................. 10
PROVISIONS OF THE ACT RELATING TO JURISDICTION:
............................................................................................................... 11
PROVISIONS OF THE ACT RELATING TO DISSOLUTION OF MARRIAGE:
........................................................................................ 12
PROVISIONS OF THE ACT RELATING TO DISSOLUTION OF MARRIAGE:
........................................................................................ 15
PROVISIONS OF THE ACT RELATING TO JUDICIAL SEPARATION:
.................................................................................................. 16
PROVISIONS FOR PROTECTION OF A DESERTED WIFES PROPERTY:
............................................................................................ 17
PROVISIONS REGARDING RESTITUTION OF CONJUGAL RIGHTS:
................................................................................................. 18
PROVISIONS FOR DAMAGES AND COSTS:
.................................................................................................................................... 19
PROVISIONS FOR ALIMONY:
......................................................................................................................................................... 20
PROVISIONS FOR SETTLEMENTS:

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21
PROVISIONS FOR CUSTODY OF THE CHILDREN:
........................................................................................................................... 21
PROCEDURES RELATING TO THE DIVORCE ACT:

............................................................... .......................................... 22
PROVISIONS REGARDING REMARRIAGE:

.................................................................................................................. 23
OTHER PROVISIONS:
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. 24

FOOT NOTES:

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Introduction:
Before the advent of Christianity, Roman law did not prescribe any formalities for
marriage or divorce. But after Christ, marriage came to be regarded as a sacrament
and the roman church came to be regarded as the supreme authority in all
matrimonial matters. It was not until reformation that visible changes began to
surface in the Christian concept of marriage. The Protestants looked upon marriage as
a civil contract rather than a religious union. The industrial revolution gave a further
impetus to the protestant concept of marriage being essentially a contract and
therefore a dissoluble union.
Many centuries ago, Christians came to India and settled in this country when 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 in India on many subjects including marriage and divorce among the
Christian community. Christian marriages are governed by the Indian Christian
marriage act
1872 and divorce by the divorce act 1869. Until 2001, both these acts stood in
contradistinction to statutes
governing other communities in India. Cases like Solomon v. Chandirah 1968, Jordan v.
Chopra1, and many others reminded the judiciary from time to time that there was an
urgent need to update these acts so that they could become relevant to present social
conditions.

1 1985 AIR 935

Difference between the divorce laws in India and United

Kingdom:

Main legislation:
The law system in India is based on the common law and is therefore ultimately
derived from the system in England and Wales. Therefore are many similarities
between both jurisdictions with the fundamental difference in India the divorce law is
based on different faiths and communities.
In India the way one achieves divorce is essentially based on what religious
community one is part of and if the marriage is an interfaith one than there is special
regulation that governs that, these laws are detailed below:
Hindu marriage act 1955 pertains to Hindus, Sikhs, and Jains
Divorce act 1869- pertains to Christians
Parsi marriage and divorce act 1936- pertains to Parsi's
Dissolution of Muslim marriages act 1939 - pertains to Muslims
Special marriage act 1954 - pertains to divorces from civil marriages and
those between different communities
In the United Kingdom, divorce legislation is not differentiated on the basis of religion
but is mainly secular, these are detailed below:
Matrimonial causes act 1973
Family law act 1996

Grounds for divorce:

In India there are five grounds for divorce which are listed below:
Adultery- only infidelity needs to be proven by either man or woman
Desertion- this occurs when there is a mixture of interruption of cohabitation
and justifiable and reasonable absence for 3 years with an intention from the
respondent to permanently separate themselves from the petitioner who has
been left behind. The same also applies to 7 year absences.
Cruelty - includes abuse which is physical as well as mental. However
despite presumed gender equality, it is applied differently to men and women
Impotency- can include not being able to consummate marriage, one spouse
not wanting to do so and could also be due to sterility.
Chronic disease- could include STDS, mental and physical illness. Although
Christians and Parsi's cannot divorce due to STDS or leprosy.
In United Kingdom, there are five facts for irretrievable breakdown of marriage
according to matrimonial
causes act 1973s 1(2):

Adultery- adultery + cruelty of defendant

Unreasonable behavior- petitioner cannot be expected to live with respondent
Desertion
2 years + consent of respondent or
5 years living apart continuously

Procedure for obtaining divorce:

In India, divorce can be
obtained as:
Mutual consent divorce- the consent of husband and wife needed on
alimony, maintenance and child custody.
Contested divorce - if eligible on grounds mentioned above, papers must
be submitted to be examined by the judge, if approved then divorce decree
granted
In United Kingdom, divorce can be obtained by a special procedure. There is no court
appearance as the judge just examines the documents and what is mentioned within
it and if he/she finds it acceptable grants decree of divorce and it is very rare for these
to be defended.

Statement of objects and reasons

of the act:
The divorce act came into force on 1st April 1869 and extends to the whole of India
except Jammu and
Kashmir. The word Indian was omitted by the Indian divorce
(amendment) act, 2001.
The purpose of this act is
twofold:
To amend the law relating to divorce of Christians and
To confer upon certain courts in India matrimonial jurisdiction not enjoyed by
them earlier.
As observed in the case of Pramilla Khosla v. Rajneesh Khosla is that no relief can be
granted under this act by any court unless either of the parties professes the Christian
religion. As far as decrees of nullity of marriage are concerned two conditions need
to be satisfied before the court can exercise jurisdiction under this act:
1.
2.

Marriage should have been solemnized in India and

The petitioner should be resident of India at the time of presenting the petition

However, it was noted in the case of Vincent Joseph Kenneth v. Jacinta Angela Konath
that the provisions of this act can be invoked by the parties who are domiciled in India
even if the marriage was solemnized outside of India.

Definitions and interpretation:

Section 3 gives a few definitions for the purpose of this act which are
discussed below:
1. "High court":
High court means with reference to any area:o In a state, the high court of Delhi;
o In Delhi, High court of Delhi;
o In Himachal Pradesh, the High court of Punjab and Haryana up to and
inclusive of the
30th April, 1967 and the High court of Delhi thereafter;
o In
o In
o In
o In

Manipur and Tripura, the High court of Assam;

the Andaman and Nicobar islands, the high court at Kolkata;
[Lakshadweep ], the High court of Kerala;
Chandigarh, the High court of Punjab and Haryana;

And in the case of any petition under this act, "High court" means the high
court for the area where the husband and wife reside or last resided
together.

2.

"District judge":
"District judge" means a judge of a principal civil court of original
jurisdiction however designated.

3.

"District court":
"District court" means, in the case of any petition under this act, the
court of the district judge within the local limits of whose ordinary
jurisdiction, or of whose jurisdiction under
this act, the husband and wife reside or last resided together.

4.

"Court":
"Court" means the high court or the district court, as the case may be.

5.

"Minor children":
"Minor children" means, in the case of sons of native fathers, boys, who
have not completed the age of sixteen years, and, in the case of
daughters of native fathers, girls who have not
completed the age of thirteen years: in other cases it means unmarried
children who have not completed the age of eighteen years.

6.

"Incestuous adultery":
"Incestuous adultery" means adultery committed by a husband with a
woman with whom, if his wife were dead, he could not lawfully contract
marriage by reason of her being within
the prohibited degrees of consanguinity (whether natural or legal) or
affinity.

7.

"Bigamy with adultery":

"Bigamy with adultery" means adultery with the same woman with whom
the bigamy was committed.

8.

"Marriage with another woman":

"Marriage with another woman" means marriage of any person, being

married, to any other person, during the life of the former wife, whether
the second marriage shall have taken
place within [India] or elsewhere.

10
9.

"Desertion":
"Desertion" implies abandonment against the wish of the person charging
it; and

10. "Property":
"Property" includes in the case of the wife any property to which she is
entitled for an estate in reminder or reversion or as trustee, executrix or
administratrix; and the date of the death of the testator or interstate shall
be deemed to be the time at which any such wife becomes entitled as
executrix or administratrix.

Interpretations of the above definitions are:

1. Court for the purpose of this act means the high court or district court as the
case maybe.
2. District court means the court of the district judge where the marriage was
solemnized or where either parties are currently residing or last resided.
3. Minor children in case of native fathers are boys who have not completed the
age of 16 years and girls who have not completed the age of 13 years. In other
cases, it is unmarried boys or girls who have not completed the age of 18 years.
4. The terms 'incestuous adultery' and 'bigamy with adultery' have been omitted
by the Indian divorce
(amendment) act, 2001.
5. Desertion means abandonment of a spouse against the wish of such spouse.
6. Marriage with another woman means marriage with of a man with any other
woman during the lifetime of the former wife irrespective of whether such
marriage was solemnized in India or any other country.
7.
Property includes any property which a wife is entitled for an estate in
remainder or reversion or as a trustee, executrix or administratrix.

11

Provisions of the act relating to jurisdiction:

1. Section 4: matrimonial jurisdiction of high courts - the jurisdiction exercised by
the high courts at the time when the divorce act came into force in respect of
divorce a mensa et toro, and in all other matrimonial, is to be exercised by such
high courts and district courts subject to the provisions in the said act.
2.

However, after the passing of the family courts act 1984, it has been held that
the family courts also have concurrent jurisdiction to pass a decree for
dissolution of marriage under this act (Dr. Mary v. Dr. Vincent)

3.

Section 5: enforcement of earlier decrees and orders - any decree or order

passed by the then supreme court of judicature at Calcutta, madras or Bombay
in exercise of their ecclesiastical or matrimonial jurisdiction, before the act
came into force, may be enforced and dealt with by the High Courts and
District Courts, respectively.

4.

Section 6: pending suits - regarding all matrimonial suits and proceedings

pending in any high court when this act came into operation are to be dealt
with and decided by such court as if they had been originally instituted therein
under this act.

5. Section 7: court to act on principles of English divorce court - this section has
been repealed by the
Indian divorce (amendment) act, 2001.
6.

Section 8: extraordinary jurisdiction of high court - the high court may,

whenever it thinks fit, remove and try and determine as a court of original
jurisdiction any suit or proceeding instituted under this act in the court of any
district judge within the limits of its jurisdiction under this act. The high court
also has the power to withdraw any such suit and transfer it for trial and
disposal to any district judge within the high court's jurisdiction.

7.

Section 9: reference to high court - if any question of law or usage having the
force of law arises at any point in the proceedings previous to the hearing of any
suit, or in the execution of the decree therein or order thereon, the court may,
either of its own motion or on the application any of the parties, draw up a
statement of the case and refer it, with the courts own opinion thereon, to the
decision of the high court.

12

Provisions of the act relating to dissolution of marriage:

1.

When a Christian husband or wife can obtain a decree of dissolution of

marriage under sections 10 and 11 - as observed in George Sebastian v. Molly
Joseph, the ecclesiastical tribunals have no jurisdiction to pass a decree of
divorce in Christian marriages.

2.

As per recent amendments, ten grounds have been enumerated which are
available to both parties while praying for dissolution of marriage:
I.

Adultery - although the term adultery has not been defined in the act, it
refers to the willing sexual intercourse between a man and a woman one
of whom is married to the third party. As direct evidence of adultery is not
insisted upon and circumstantial evidence is generally relied upon by the
courts. (Simon v. Bakla) however, hearsay or simple communication
between a man and woman does not amount to proof of adultery. (Raspin
v. Raspin 1953). Also petition presented by a husband, the petitioner must
make the alleged adulterer a correspondent to the said petition, unless
he is excused from so doing on one of the following grounds as
allowed by the court:i. That the respondent is leading the life of prostitute, and the
petitioner knows of no person with whom the adultery has been
committed;
ii. That the name of the alleged adulterer is unknown to the
petitioner, although he has made due efforts to discover it;
iii. That the alleged adulterer is dead.

II.
III.

Ceasing to be a Christian by conversion to another religion

Unsound mind for a continuous period of not less than 2 years
immediately preceding the presentation of the petition
IV. Suffering from virulent and incurable form of leprosy for a continuous
period of not less than 2 years immediately preceding the presentation of
the petition
V. Suffering from venereal disease in a communicable form for a continuous
period of not less than 2 years immediately preceding the presentation of
the petition
VI.
Not heard to be alive for a period of seven years or more by those who
would normally hear from that spouse
VII.
Willfully refused to consummate marriage and therefore the
marriage has not been consummated
VIII.
Failed to comply with the decree for restitution of conjugal rights for a
period of 2 years or more after the passing of the decree
IX.
Desertion for at least 2 years immediately preceding the presentation
of the petition with

X.

the presence of 2 elements in such desertion; actual separation and

intention to desert. (Bull v. Bull 1933) however, it is important to note that
if the husband creates circumstances which compel the wife to leave the
house it is husband and not the wife who is guilty of desertion2.
Cruelty - as the term cruelty is not legally defined, it is dependent on the
facts of each case3. While considering the petition on the grounds of
cruelty the courts must keep in mind the mental, physical and emotional

Handa v. Handa 1985

Sheldon v. Sheldon 1966

condition of the parties, their character and social status.

3.

When a Christian wife can obtain a decree of dissolution of marriage under

section 10 - in addition to the above grounds, a Christian wife can file a petition
for dissolution of marriage if the husband has been guilty of rape, sodomy or
bestiality since the solemnization of marriage. Although this act does not define
rape, reference can be made to section 375 of Indian penal code wherein rape is
defined as:

13
"A man is said to commit rape who has sexual intercourse with a woman against her
will or without her consent or with her consent where her consent has been
obtained by putting her or any person in whom she is interested in fear of death
or fear or with her consent when the man knows that he is not her husband and
that her consent has been given because she believes that he is another man to
whom she is or believes herself to be lawfully married or with her consent, when
at the time of giving such consent by reason of unsoundness of mind or intoxication
or the administration by him personally or through another of any stupefying or
unwholesome substance she is unable to understand the nature and
consequences of that to which she gives consent or with or without consent
when she is under the age of sixteen years."
4.

Divorce by mutual consent under section 10-a divorce by mutual consent,

the petition can be presented by both parties together on the grounds that:
I.
They have been living separately for a period of 2
years or more; II.
They have not been able to live
together; and
III.
They have mutually agreed that the marriage should be dissolved.

5.

When such a petition is presented by both the parties not earlier than six
months and not later than eighteen months, the court shall, on being satisfied
after hearing both the parties and making necessary inquiries pass a decree
declaring the marriage dissolved with effect from the date of the decree.

6.

Whenever a petition is filed for dissolution of marriage it is the primary duty of

the court to ensure that there is no collusion between the parties I.
The court must dismiss the dissolution petition under
section 13, if it is: II.
Satisfied that the petitioner's case is
not proved or
III.
Not satisfied that the alleged adultery is proved or
IV. Found that the petitioner has during the marriage been accessory to or
has connived at the going through of the marriage of the adultery of the
other party or has condoned the adultery complained of or
V.
Satisfied that the petition is presented in collusion with either of the
respondents.

7.

When the court must grant the petition - in case the court is satisfied that the
evidence of the case proved by the petitioner and does not find that the
petitioner has been in any manner accessory to, or conniving at, the going
through the form of marriage, or the adultery 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 of dissolution of
the marriage.

8.

The court is not bound to pronounce the decree if

the petitioner: I. Himself or herself has been
guilty of adultery or
II.
Unreasonably delayed in presenting or prosecuting the petition or
III.
Guilty of cruelty towards the spouse or
IV. Desertion or willful separation from the spouse before the adultery
complained of and without any reasonable excuse or
V.
Guilty of willful neglect or misconduct towards the spouse.

9.

Relief in case of opposition on certain grounds - when a suit is instituted for

dissolution if the respondent opposes the relief sought on specified grounds
the court may give to the respondent

14
the same relief to which he or she would have been entitled to if he or she
had presented the petition for matrimonial relief on the following cases:
I.
Dissolution suit filed by the husband - his adultery, cruelty or desertion
and
II.

Dissolution suit filed by the wife - her adultery, cruelty or desertion.

10. This is done in order to:

I.
Avoid multiplicity of suits between the same parties and
II.
Enable the courts to render full and complete justice.
11. Decree nisi and confirmation of decree under section 16 and 17 - decree nisi is
a conditional decree which needs to be confirmed by the court later on. Every
decree for dissolution of marriage made by a high court is to be a decree nisi.
And such a decree is to be made absolute after the expiration of such time, not
less than six months from the pronouncing thereof, as the high court, by
general or special order directs. During this period any person can approach the
high court praying that 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.
12. On such cause being so shown, the court shall deal with the case by making
the decree absolute, or by reversing the decree nisi, or by requiring further
inquiry, or otherwise as justice may demand. 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. During the period
when the decree nisi is in force, the status of the petitioner and respondent
does not change4 when a suit is pending before a district judge, any person who
suspects collusion therein may apply to the high court which may if it thinks fit,
remove such suit to itself and try and determine the same as the court of
original jurisdiction.

Sunandra v. Subbarao 1957

15

Provisions of the act relating to dissolution of marriage:

1. When a Christian husband or wife can obtain a decree of nullity under section
18 and 19 - the husband or wife have the right to present a petition to the
district court praying that his or her marriage to be declared null and void on
any of the following grounds:
Impotency - impotency of the other spouse both at the time of marriage
and at the time of filing the suit is ground on which a decree of nullity can
be obtained under the act. Proof of impotency can be deduced from
medical reports and if the spouse refuses to undergo a medical
examination the court can draw an adverse inference about the same.
(Biswas v. Biswas)
Prohibited degree of consanguinity or affinity - consanguinity
denotes a relationship by descent or collaterally (example: mother and
son, cousins). Affinity means a relationship not
by blood but by marriage (example: man and his wife's sister). A decree of
nullity can be granted on the ground that the parties to the marriage are
within prohibited degrees of consanguinity or affinity.
Lunacy or idiocy - a decree of nullity can be passed on the ground that
either party to the marriage was a lunatic (i.e. A person of unsound
mind) or idiot (i.e. mentally defective person who is unable to guard
himself against common physical dangers) at the time of the marriage.
However, short temper or erratic behavior does make a person a lunatic or
an idiot.
Marriage contracted during the life time of the former spouse this clause emphasizes the rule of monogamy amongst Christians. The
petitioner must prove that there was a previous marriage of the spouse
that such marriage was in full force and effect when the second marriage
took place and that the former spouse of such earlier marriage was alive
on the date of the second marriage.
Consent obtained by force or fraud - a decree of nullity can be
passed if consent of either party was obtained by fraud or force.
Example: the bride's pregnancy (with another man)
concealed at the time of marriage is fraud as discussed in the case
of Raju v. Janaki. However, consent obtained on a misrepresentation of
the bride's virginity or character does not amount to fraud as noted in the
case of David v. Kalpana.
In case of such void marriages, a third party cannot petition the court, as
such right is vested only in the spouses to such a marriage (Simpson v.
Biswas 1980)
2.

Section 21 relating to children of annulled marriage is applicable only if the

marriage is annulled on any of the following grounds:

That a former husband or wife is alive, the second marriage is contracted

in good faith and full belief of the parties that such former husband or wife
was dead or
On the grounds of insanity
In such cases, the names of the children begotten before the annulment
decree are to be specified in such decree and they become entitled to
succeed to their parent's property as if
they were legitimate

children.

16

Provisions of the act relating to judicial separation:

1.

Judicial separation: after the amendments in the divorce act, section 22

clarifies that a court cannot pass a decree of divorce a mensa et toro. however,
a court can pass a decree of judicial separation on any of the following grounds:
adultery or
cruelty or
desertion for 2 years or more
Such a petition can be filed either by the husband or the wife and a decree on
such a petition would have the effect of a divorce a mensa et toro. (i.e. separation
in bed and board)
2. Lapse of time is not an absolute bar to a suit for judicial separation. however,
whenever there is undue delay in presenting such a petition, it is a matter which
the court should take note of by calling the petitioner to explain the delay
(boulting v. boulting)
3. Position of separated wife: When a decree for judicial separation is
passed as long as the separation continues, the wife is to be regarded as
unmarried with respect to any property which she may acquire or devolve upon
her. such property can be disposed of by her as if she was unmarried and on
her death interstate such property devolves as if her husband was not alive.
section 25 states that a separated wife so long as the separation continues,
the wife is to be regarded as unmarried for the purpose of entering into
contracts for the purpose of wrongs and injuries and for suing and being sued in
civil proceedings. the husband is not to be liable in respect of any contract or
for any act done by her during the period of judicial separation.
4. Reversal of decree of separation: Section 26 lays down that an either
spouse may present a
petition to the court which had passed such a decree of judicial separation
praying that the decree be reversed on the ground that it was obtained ex
parte. when the decree has been passed on the grounds of desertion, it can also
be shown to the court that there was reasonable excuse for the alleged
desertion. in such cases the petitioner must prove:
Reasons for absence, explaining satisfactorily the circumstances that
gave rise to his absence.
Put forth circumstances and arguments that the decree of judicial
separation was wrongly passed5.

Dalchand Kashiram v. anna razi 1950

17

Provisions for protection of a deserted wifes property:

1.

A wife who has been deserted by her husband and to whom as per section
20 of the Indian succession act 1925, does not apply may apply to the court at
any time after such desertion, for an order to protect any property acquired by
her or of which she is possessed, and also property which she may acquire or
become possessed of after such desertion, against her husband or his creditors
or any person claiming under him.
2. If the court is satisfied that such wife was deserted without reasonable
excuse and that she is
maintaining herself by her own industry or property it may pass an order
protecting her earnings and other property from her husband and other
persons claiming under him and from the husbands creditors.
3. Such an order can be varied or discharged on an application by the husband or
any person claiming under him, or by any creditor of the husband, if the court is
satisfied that the desertion has ceased or if there any other good reason to do
so.
4. Under section 30, if the husband or any person claiming under him or his
creditors seizes or continues to hold the wifes property even after notice of
any such order, he becomes liable not only to redeliver the specific property to
her but also to pay her a sum equal to double its value.
5. Lastly section 31, lays down that as long as such a protection order remains
in force and she continues to be deserted, she is to be regarded in all respects
with regard to their property, contracts and capacity to sue and be sued, to be
in the same position as if she had obtained a decree of judicial separation
under the act.

18

Provisions regarding restitution of conjugal rights:

1.

Section 32 states that if either the husband of wife has withdrawn from the
society of the other without reasonable excuse, the other party may apply to
the court for the restitution of conjugal rights. if the court is satisfied about the
truth of the statements made in such a petition and that there is no legal
grounds why such an application should not be granted, it may decree
restitution of conjugal rights.
2. It is further provided that anything which amounts to a ground for judicial
separation or nullity of

marriage, would be a complete defense to such a petition.

Withdrawal from society: a lawful wedlock between a man and a woman
imposes an obligation on both the spouses to live and cohabit with such other.
withdrawal from society means cessation of cohabitation as a voluntary act of
one of the spouses. the withdrawal from society of a spouse amounts to
withdrawal from the totality of conjugal relationship.
4.
Without reasonable excuse: under the act, it is not enough that one
spouse has withdrawn from the society of the other. it is also necessary that
such withdrawal should be without reasonable excuse. therefore, the following
cases have been held to be reasonable cause:
the husband insisting that his wife should eat meat and drink liquor.
persistent nagging of the wife by the husbands parents
act of physical violence
addiction to drinks or drugs accompanied by violent temper
5.
Burden of proof: in the petition filed for restitution of conjugal rights the
burden of proof is always on the petitioner. the petitioner must successfully
prove on the strength of his own case. the petitioner cannot succeed only on the
grounds that the defenses of the respondent have not been established.
3.

19

Provisions for damages and costs:

The provisions for damages and costs contained in section 34 and 35 of the divorce
act have been deleted by the amendment of 2001. However, the following three
provisions of the act which deal with payment of costs may be noted:
1. Under section 16, in suits filed for dissolution of marriage the high court may
order the cost of counsel, witnesses and other costs to be paid by both the
parties or by one or more of them as it thinks fit.
2. Under section 49, when the petitioner is a minor, the petition can be filed only
after his next friend gives an undertaking in writing to be answerable for costs.
3. Under section 55, no appeals can be filed only on the subject of cost.

20

Provisions for alimony:

The term alimony is used to describe the allowance granted by a court to a woman
who is not living with her husband. Alimony is of two types:
I)
Alimony Pendent Lite: it is the alimony which the court directs the
husband to pay to the wife during the pendency of the suit. an
application can be made by the wife for expenses of the proceedings
and for alimony during the pendency of a matrimonial suit filed under
the act, whether by the husband or by the wife. such a petition is to
be served on the husband and after hearing both the parties the court
may pass an order for payment of such expenses and for alimony
pendente lite. the rationale of the provision is to enable the wife to
maintain herself until the court passes an order in the pending
matrimonial petition. it is now provided by the amendment of 2001 that
petitions filed for expenses of the proceedings and for alimony
pendente lite should be disposed off as far as possible within 60 days
of the service of such a petition on the husband. where the husband
has no property or income, the court would be justified in refusing to
order any alimony pendente lite (fletcher v. fletcher). the Allahabad
high court has held that the fact that the wife can go and live with her
father does not mean that she cannot claim alimony pendente lite from
the husband (joshi v. ganga devi). the court would also consider what
the wifes own income is. however the fact that she is possessed of
ornaments would not disentitle her from claiming such alimony
(kuriakose v. kuriakose1958). the Kerala high court has held that even if
a wife has independent means of income, she can claim alimony
pendente lite (Matthew v. kuruvilla 1990).
II)
Permanent Alimony: it is the alimony granted by the court when
passing the decree.
when the court passes the final decree for dissolution of marriage or
judicial separation it may order the husband to pay to the wife, a gross
sum of money, or an annual amount for any term not exceeding the
wifes life as the court thinks reasonable. for this purpose, the
court may direct that proper documents be executed by all necessary
parties. in passing such an order the court must have regard to:
the wifes fortune
ability of the husband
conduct of both parties.
2. In such cases the court can also pass an order directing the husband to
pay to the wife such monthly or weekly sums for her maintenance and support
as the court may think reasonable. if for any reason the husband afterwards
becomes unable to make the payment to his wife the court can discharge or
modify the order, or even suspend it temporarily, wholly or in part and again
review the same later on as it deems fit. the court may also afterwards increase
the amount payable by the husband on a monthly or weekly basis if
circumstances exist to justify a large amount payable as alimony to the wife6.
In Attwood v. Attwood 1968, the court of appeals in England laid down the
following general principles to be kept in mind when determining the quantum
of payment of alimony to be awarded to the wife:
I)
Whether during the cohabitation, the wife and the children shared
with the husband a
living appropriate to their
6

iswarayya v. iswarayya 1930

income.
II)
In case whether the cohabitation was disrupted by the husbands
matrimonial offence the subsequent standard of living of the wife and
children should not suffer, as far as possible.
III)
Generally speaking, the wife and the children should not be
regulated to a to a significantly lower standard of living than that of
the husband.
IV)
the reasonable expenses of each party must be taken into account
V)
the wifes income and even her potential earning capacity must
always be kept in mind
VI)
The courts order must not depress the husband below the
subsistence level.

21
i.

Payment of alimony to the wife or her trustee: in all cases of

grant of alimony, the court may direct the amount to be paid directly
to the wife or to a trustee on her behalf. such a trustee must be
approved by the court, which can impose any terms or restrictions
on him. the court can also appoint a new trustee from time to time
if it deems it expedient to do so.

Provisions for settlements:

Section 39 dealing with the courts power to order a settlement of the wifes property
has been deleted by the amendment of 2001. however, under section 40 the court
may before passing a decree for dissolution or nullity inquire into the existence of antinuptial or post-nuptial settlements and pass orders as regards the property settled for
the benefit of the husband or of the wife or of the children or of the children and
parents as the court may deem fit. the only restriction is that no order can be passed
for the benefit of the parents at the expense of the children7.

Provisions for custody of the

children:
Custody of children is a delicate but unavoidable matter involved in most matrimonial
proceedings.
1. Section 41 therefore lays down that in any suit for judicial separation the
court may pass orders as it deems fit as regards the custody,
maintenance and education of the minor children whose parents marriage
is the subject matter of the suit. such orders maybe in the nature of
interim orders or maybe a part of the decree itself. If found necessary, the
court may also direct proceedings to be taken for placing such children
under the protection of the court. it is now provided by the amendment of
2001, that such an application should be disposed off as far as possible
within 60 days from the date of service of the notice on the respondent.
2. Such orders can also be made after a decree of judicial separation has
been passed by the court.
3.
Section 43 states that such an order can also be passed in a suit for
obtaining dissolution of marriage or a decree of nullity of marriage.
4.
Furthermore section 44 provides that even after a final decree for
dissolution of marriage or a decree of nullity of marriage, an application to
the court can be made at any time for the custody, maintenance and
education of a child or for placing such a child under the protection of the
court. the person to whom the custody of a child is given can also be
directed not to remove such child outside the courts jurisdiction (Duncan
v. Duncan 1939). it is to be remembered there are no hard and fast rules
that can be laid down in matters relating to the custody of children and
the court has to exercise its discretion according to the facts and
circumstances of each case. the interest and welfare of the child are
always the paramount consideration in all matrimonial suits. if the child is
7

Matheson v. Matheson 1935

old enough to form an intelligent opinion, the childs opinion should also
be given due weight in deciding which parent shall have custody of the
child8. even when one of the parents is given the custody of the child,
the other parent may be given visiting rights9

ammal v. ammal 1924

sarin v. suman 1984

22

Procedures relating to the divorce act:

All proceedings under this act are regulated by the code of civil procedure subject to
any specific provision to the contrary in the divorce act. if however, there is any
specific provision in the act, that provision and not the one under the civil procedure
code, would apply to the matrimonial proceedings.
1. Forms Of Petitions: the schedule to the divorce act sets out various
forms to be used with such variations as the circumstances may require
for all proceedings under the act. when a petition is filed for a decree of
dissolution of marriage or nullity of marriage or judicial separation the
petition must state that there is no collusion or connivance between the
petitioner and the other party to the marriage.
2.
Suits By Lunatics And Minors: if the husband or the wife is a
lunatic or an idiot any suit under the act (except for a suit for restitution
of conjugal rights) may be filed on his or her behalf by the committee or
some other person entitled to his or her custody. if the petitioner is
a minor, he can sue by his next friend to be approved by the court and
such petitions can be presented only after the next friend has given an
undertaking in writing to be answerable for the costs of such a suit. such
an undertaking is to be filed in the court and the next friend becomes
liable to pay costs as if he was the plaintiff in an ordinary suit.
3. Service Of Petition: every petition under the act is to be served on the
party who may be in or outside India in such manner as the high court
may direct by a general or special order. in a fit case, the court may
dispense with service of a petition if it deems it necessary or expedient to
do so.
4. Mode Of Taking Evidence: under section 51, all proceedings under
the act the witness are to be examined orally in the court and any party
can offer himself or herself as a witness. this examination of a partys
witness by the party itself is known as examination-in-chief. instead of
deposing orally in the court an affidavit of the witness can also be filed.
this affidavit would then constitute the examination-in-chief. after that the
opposition party has a right to put oral questions to such a witness.
this is known as cross-examination. thereafter, the party who brought
the witness may wish to ask further questions to his witness. this is known
as re-examination.
5. Competence Of Spouses To Give Evidence As To Cruelty Or
Desertion: section 52 lays down
that in cases where a husband or a wife has filed a petition for
dissolution of marriage on the ground of adultery, cruelty or desertion the
husband and wife are competent to give evidence relating to such cruelty
or desertion in the court.
6.
Hearings In Camera: of all judicial proceedings the dirtiest linen
washed in public and the greatest amount of mudslinging is to be found in
matrimonial proceedings. section 53 states that the court thinks fit any
proceedings under the divorce act may be conducted wholly or in part
behind closed doors.
7. Power To Adjourn: section 54 clarifies that the court may from time to
time adjourn the hearing of any petition held under the act.
8.
Enforcement Of Orders And Decrees: section 55 provides that all

orders and decrees passed by a court under the act, can be enforced in
the same manner as orders and decrees of the court made in the exercise
of its original civil jurisdiction are enforced.
9. Appeals: all decrees and orders of the court passed under the act can be
appealed against subject to the laws rules and orders for the time being in
force. however, no appeal can be filed only as regards the costs of the
proceedings. under section 56, any person can file an appeal in the
supreme court:

23
i.

ii.

from any decree except a decree nisi or order under the act
passed by a high court on appeal or otherwise;
from any decree except a decree nisi or order under the act passed by a high court
in
the exercise of its original jurisdiction from which an appeal does
not lie to the high court.

Provisions regarding remarriage:

1.

Section 57 has now been amended by the amendment of 2001. the

six month waiting period had been abolished and it is now provided that
it would be lawful for either party to the marriage to marry again in cases
where a decree for dissolution or for nullity of the marriage has been
passed and
the time for filling an appeal has expired without an appeal being
filed in any court including the supreme court or
such an appeal has been presented but also been dismissed
and the decree or dismissal has become final.
2. it is expressly provided that no clergyman n holy orders of the church of
England can be compelled to solemnize the marriage of any person
whose former marriage was dissolved on the ground of his or her
adultery. likewise, no such person can be exposed to any suit, penalty or
censure for solemnizing or refusing to solemnize the marriage of any
such person.
3. lastly, if any minister of a church refuses to perform such a remarriage
he must permit any
other minister in holy orders of the said church entitled to officiate
within the diocese to perform such marriage service in such church or
chapel.

24

Other provisions:
1. Section 60 provides that every decree for judicial separation and every
order for protection of property obtained by a wife under the act is to be
deemed to be valid so f
2. ar as may be necessary for protecting any person dealing with the wife
until such decree or order is reversed or discharged. Even if such decree
or order is reversed, discharged or varied it does not affect any rights or
remedies which any person would otherwise have had in respect of any
contracts or acts of the wife entered into or done after the date of the
decree or order but before the date of its reversal, discharge or variation.
Likewise, an indemnity is given to all persons making any payment to the
wife without notice of the reversal, discharge or variation of such decree
or order.
2.
Section 61 clarifies that after the act came into force no person
competent to present a petition under section 2 or 10 of the act can
maintain a suit for criminal conversation with his wife. However, this
section is no bar for the prosecution and punishment of the
adulterer under section 497 of the indian penal code (bwye v. Kirk 1928).
3. Section 62 empowers the high court to make rules under the act,
as it may consider expedient from time to time. Such rules may also be
altered or added to from time to time. All such rules:
Should be consistent with the provisions of the act and the
civil procedure court and
Must be published in the official gazette.
If a rule made under section 62 is not consistent with the
act, it will not be valid (Friedlander v. Friedlander)

25
39
Foot Notes:

1.
2.
3.
4.
5.
6.
7.
8.

The words "in India" omitted by Act No. 3 of 1951.

Substituted for the original first paragraph by AO 1948.
Substituted by AO 1950, for certain words.
Substituted for the words "except Part B States" by Act No. 3 of 1951.
Substituted by Act No. 25 of 1926.
Inserted by Act No. 30 of 1927.
Substituted for the former clause by AO. (No. 2) 1956.
Substituted by the Himachal Pradesh (Adaptation of Laws on State & Concurrent Subjects) Order,1968, w.e.f.
1st. November, 1966.
9. Substituted by the Lakshadweep (Alteration of Name ) Adaptation of Laws Order, 1974, for "Laccadive,
Minicoy and Amindivi Islands" w.e.f. 1st. November, 1973.
10. Inserted by the Punjab Reorganization (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects)
Order 1968, w.e.f. 1st. November, 1966.
11. Substituted by AO 1950, for the former clause.
12. Substituted for "the dominions of Her Majesty" by AO 1950.
13. Added by Act No. 10 of 1912.
14. Substituted for the original section 17A by AO 1937.
15. Substituted by Act No. 3 of 1951, for certain words.
16. Second paragraph omitted, Act No. 3 of 1951.
17. Now see the Indian Succession Act, 1925 (Act No. 39 of Year 1925).
18. Now see the Code of Civil Procedure, 1908 (Act No. 5 of Year 1908).
19. The words "or of reversal of judicial separation, or for restitution of conjugal rights, or for damages, shall bear
a stamp of five rupees, and" repealed by Act No. 7 of 1870.
20. The words "in the first, second and third cases mentioned in this section", repealed by Act No. 7 of 1870.
21. The words "shall bear a stamp or eight annas and" repealed by Act No. 7 of 1870.
22. Substituted by AO 1950, for the words "the Provinces" which had been substituted by AO 1948, for the words
"British India".
23. Substituted by AO 1950 for the words "Her Majesty in Council".
24. The word "United" repealed by Act No. 12 of 1873.
25. The words "and Ireland" repealed by Act No. 12 of 1873.