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 CENTUARIES 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. CHOPRA 1965, 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 RELEVENT TO PRESENT SOCIAL CONDITIONS.

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.
A. 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:
I) HINDU MARRIAGE ACT 1955 – PERTAINS TO HINDUS, SIKHS, AND JAINS
II) DIVORCE ACT 1869- PERTAINS TO CHRISTIANS
III) PARSI MARRIAGE AND DIVORCE ACT 1936- PERTAINS TO PARSIS
IV) 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:
I) MATRIMONIAL CAUSES ACT 1973
II) FAMILY LAW ACT 1996

GROUNDS FOR DIVORCE:

IN INDIA THERE ARE FIVE GROUNDS FOR DIVORCE WHICH ARE LISTED BELOW:
I) ADULTERY- ONLY INFIDELITY NEEDS TO BE PROVEN BY EITHER MAN OR WOMAN
II) 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.
III) CRUELTY - INCLUDES ABUSE WHICH IS PHYSICAL AS WELL AS MENTAL. HOWEVER
DESPITE PRESUMED GENDER EQUALITY, IT IS APPLIED DIFFERENTLY TO MEN AND
WOMEN
IV) IMPOTENCY- CAN INCLUDE NOT BEING ABLE TO CONSUMMATE MARRIAGE, ONE
SPOUSE NOT WANTING TO DO SO AND COULD ALSO BE DUE TO STERILITY.
V) CHRONIC DISEASE- COULD INCLUDES STDS, MENTAL AND PHYSICAL ILLNESS.
ALTHOUGH CHRISTIANS AND PARSEES 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):
I) ADULTERY- ADULTERY + CRUELTY OF DEFENDANT
II) UNREASONABLE BEHAVIOUR- PETITIONER CANNOT BE EXPECTED TO LIVE WITH
RESPONDENT
III) DESERTION
IV) 2 YEARS + CONSENT OF RESPONDENT OR
V) 5 YEARS LIVING APART CONTINUOUSLY

PROCEDURE FOR OBTAINING DIVORCE:

IN INDIA, DIVORCE CAN BE OBTAINED AS:
I) MUTUAL CONSENT DIVORCE- THE CONSENT OF HUSBAND AND WIFE NEEDED ON
ALIMONY, MAINTENANCE AND CHILD CUSTODY.
II) 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 TWO FOLD:
A. TO AMEND THE LAW RELATING TO DIVORCE OF CHRISTIANS AND
B. TO CONFER UPON CERTAIN COURTS IN INDIA MARTRIMONIAL JURISDICTION NOT
ENJOYED BY THEM EARLIER.
AS OBSERVED IN THE CASE OF PRAMILLA KHOSLA V. RAJNISH 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. MARRIAGE SHOULD HAVE BEEN SOLEMNISED IN INDIA AND
2. THE PETITIONER SHOULD BE RESIDENT OF INDIA AT THE TIME OF PRESENTING THE
PETITION
HOWEVER, IT WAS NOTED IN THE CASE OF VINCENT JOSEPH KONATH V. JACINTHA
ANGELA KONATH THAT THE PROVISIONS OF THIS ACT CAN BE INVOKED BY THE PARTIES
WHO ARE DOMICILED IN INDIA EVEN IF THE MARRIAGE WAS SOLEMNISED 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":
(1) "HIGH COURT" MEANS WITH REFERENCE TO ANY AREA:-
(A) IN A STATE, THE HIGH COURT OF DELHI;
(B) IN DELHI, HIGH COURT OF DELHI;
(BB) IN HIMACHAL PRADESH, THE HIGH COURT OF PUNJAB AND HARYANA UPTO AND
INCLUSIVE OF THE 30TH APRIL, 1967 AND THE HIGH COURT OF DELHI THEREAFTER;]
(C) IN MANIPUR AND TRIPURA, THE HIGH COURT OF ASSAM;
(D) IN THE ANDAMAN AND NICOBAR ISLANDS, THE HIGH COURT AT CALCUTTA;
(E) IN [LAKSHADWEEP ], THE HIGH COURT OF KERLA;
(EE) IN 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.
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.

INTERPRETATION 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 SOLEMNISED 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 'INCENTUOUS 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 SOLEMNISED 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.

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.
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)
2. 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.
3. 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.
4. SECTION 7: COURT TO ACT ON PRINCIPLES OF ENGLISH DIVORCE COURT - THIS SECTION
HAS BEEN REPEALED BY THE INDIAN DIVORCE (AMENDMENT) ACT, 2001.
5. 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.
6. 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 COURT’S
OWN OPINION THEREON, TO THE DECISION OF THE HIGH COURT.

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:-
(1) THAT THE RESPONDENT IS LEADING THE LIFE OF PROSTITUTE, AND THE PETITIONER
KNOWS OF NO PERSON WITH WHOM THE ADULTERY HAS BEEN COMMITTED;
(2) THAT THE NAME OF THE ALLEGED ADULTERER IS UNKNOWN TO THE PETITIONER,
ALTHOUGH HE HAS MADE DUE EFFORTS TO DISCOVER IT;
(3) THAT THE ALLEGED ADULTERER IS DEAD.
II) CEASING TO BE A CHRISTIAN BY CONVERSION TO ANOTHER RELIGION
III) UNSOUND MIND FOR A CONTINUOUS PERIOD OF NOT LESS THAN 2 YEARS
IMMEDIATELY PRECEEDING 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 PRECEEDING 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 PRECEEDING 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) WILFULLY 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 ATLEAST 2 YEARS IMMEDIATELY PRECEEDING THE PRESENTATION OF
THE PETITION WITH THE PRESENCE OF 2 ELEMENTS IN SUCH DESERTION; ACTUAL
SEPERATION 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 THE HUSBAND AND NOT THE WIFE WHO IS GUILTY OF
DESERTION. (HANDA V. HANDA 1985).
X) CRUELTY - AS THE TERM CRUELTY IS NOT LEGALLY DEFINED, IT IS DEPENDENT ON THE
FACTS OF EACH CASE. (SHELDON V. SHELDON 1966). WHILE CONSIDERING THE PETITION
ON THE GROUNDS OF CRUELTY THE COURTS MUST KEEP IN MIND THE MENTAL, PHYSICAL
AND EMOTIONAL CONDITION OF THE PARTIES, THEIR CHARACTER AND SOCIAL STATUS.
SOME OF THE INSTANCES OF LEGAL CRUELTY ARE:
i) THE HUSBAND SPREADING FALSE REPORTS ABOUT HIS WIFE’S ADULTERY TENDING TO
INJURE HER HEALTH (JEAPSES V. JEAPSES)
ii) THE HUSBAND’S BEHAVIOR TOWARDS HIS WIFE IN A PUBLIC STREET IN SUCH A WAY AS
TO LEAD A PASSERBY TO TAKE HER TO BE A PROSTITUTE (MILNER V. MILNER)
iii) INSISTING ON ORAL SEX AND ANAL SEX CAUSING INJURY AND PAIN TO THE WIFE
(BULFORD V. SANDFORD)
ON THE OTHER HAND FOLLOWING HAVE BEEN HELD NOT TO AMOUNT TO LEGAL
CRUELTY:
A. MERE USE OF VIOLENT WORDS (RUSSEL V. RUSSEL)
B. INSULT, BAD LANGUAGE OR ABUSE WHICH DOES NOT RAISE A REASONABLE
APPREHENSION OF BODILY HARM (GORDON V. GORDON)

2. 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 SOLEMNISATION 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:
"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."

3. 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.
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.

4. 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 -
THE COURT MUST DISMISS THE DISSOLUTION PETITION UNDER SECTION 13, IF IT IS:
I) SATISFIED THAT THE PETITIONER'S CASE IS NOT PROVED OR
II) NOT SATISFIED THAT THE ALLEGED ADULTERY IS PROVED OR
III) 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
IV) SATISFIED THAT THE PETITION IS PRESENTED IN COLLUSION WITH EITHER OF THE
RESPONDENTS.

5. 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. 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 WILFUL SEPARATION FROM THE SPOUSE BEFORE THE ADULTERY
COMPLAINED OF AND WITHOUT ANY REASONABLE EXCUSE OR
V) GUILTY OF WILFUL NEGLECT OR MISCONDUCT TOWARDS THE SPOUSE.

6. RELIEF IN CASE OF OPPOSITION ON CERTAIN GROUNDS - WHEN A SUIT IS INSTITUTED

FOR DISSOLUTION IF THE THE RESPONDENT OPPOSES THE RELIEF SOUGHT ON SPECIFIED
GROUNDS THE COURT MAY GIVE TO THE RESPONDENT 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.
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.

7. 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.
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 CHANGE (SUNANDRA V. SUBBARAO 1957) 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.

PROVISIONS OF THE ACT RELATING TO NULLIFICATION 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:
I) 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)
II) 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.
III) 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.
IV) MARRIAGE CONTRACTED DURING THE LIFE TIME OF THE FORMER SPOUSE - THIS
CLAUSE EMPHASISES 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.
V) 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:
I) 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
II) 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.
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:
1. ADULTERY OR
2. CRUELTY OR
3. 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)
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)
2. 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 OFF 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.
3. REVERSAL OF DECREE OF SEPARATION: SECTION 26 LAYS DOWN THAT A 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:
A. REASONS FOR ABSENCE, EXPLAINING SATISFACTORILY THE CIRCUMSTANCES THAT
GAVE RISE TO HIS ABSENCE.
B. PUT FORTH CIRCUMSTANCES AND ARGUMENTS THAT THE DECREE OF JUDICIAL
SEPARATION WAS WRONGLY PASSED. (DALCHAND KASHIRAM V. ANNA RAZI 1950)

PROVISIONS FOR PROTECTION OF A DESERTED WIFE’S 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 HUSBAND’S
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 WIFE’S 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 THER 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.

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 DEFENCE TO
SUCH A PETITION.
3. 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:
A. THE HUSBAND INSISTING THAT HIS WIFE SHOULD EAT MEAT AND DRINK LIQUOR.
B. PERSISTENT NAGGING OF THE WIFE BY THE HUSBAND’S PARENTS
C. ACT OF PHYSICAL VIOLENCE
D. 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 DEFENCES OF THE RESPONDENT HAVE NOT
BEEN ESTABLISHED.

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.

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:
1. ALIMONY PENDENTE 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 AN 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 IS THE WIFE’S OWN INCOME.
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).
2. PERMENENT 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
WIFE’S 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:
A. THE WIFE’S FORTUNE
B. ABILITY OF THE HUSBAND
C. CONDUCT OF BOTH PARTIES.
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 EXISTS TO JUSTIFY A LARGE AMOUNT PAYABLE AS
ALIMONY TO THE WIFE (ISWARAYYA V. ISWARAYYA 1930). 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 INCOME.
ii) IN CASE WHETHER THE COHABITATION WAS DISRUPTED BY THE HUSBAND’S
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 REGELATED 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 WIFE’S INCOME AND EVEN HER POTENTIAL EARNING CAPACITY MUST ALWAYS BE
KEPT IN MIND
vi) THE COURT’S ORDER MUST NOT DEPRESS THE HUSBAND BELOW THE SUBSISTENCE
LEVEL.
D. 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 COURT’S POWER TO ORDER A SETTLEMENT OF THE

WIFE’S 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 ANTI-NUPTIAL 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 CHILDREN. (MATHESON V.
MATHESON 1935)

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 EDUCTION 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 COURT’S 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
OLD ENOUGH TO FORM AN INTELLIGENT OPINION, THE CHILD’S OPINION SHOULD ALSO
BE GIVEN DUE WEIGHT IN DECIDING WHICH PARENT SHALL HAVE CUSTODY OF THE
CHILD (AMMAL V. AMMAL 1924). EVEN WHEN ONE OF THE PARENTS IS GIVEN THE
CUSTODY OF THE CHILD, THE OTHER PARENT MAY BE GIVEN VISITING RIGHTS (SARIN V.
SUMAN 1984)

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 PARTY’S 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 MUD SLINGING 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:
A) FROM ANY DECREE EXCEPT A DECREE NISI OR ORDER UNDER THE ACT PASSED BY A
HIGH COURT ON APPEAL OR OTHERWISE;
B) 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
i) THE TIME FOR FILLING AN APPEAL HAS EXPIRED WITHOUT AN APPEAL BEING FILED IN
ANY COURT INCLUDING THE SUPREME COURT OR
ii) 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 SOLEMNISE 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
SOLEMNISING OR REFUSING TO SOLEMNISE 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.

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 FAR 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:
i) SHOULD BE CONSISTENT WITH THE PROVISIONS OF THE ACT AND THE CIVIL
PROCEDURE COURT AND
ii) 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)
BIBLIOGRAPH:

1. Bare Act
2. LAW OF MARRIAGE AND DIVORCE IN INDIA BY B.P. BERI
3. http://www.vakilno1.com/
4. http://www.netlawman.co.in
5. The Law of Divorce BY Henry Adolphus Byden Rattigan
6. http://en.wikipedia.org/wiki/Christian_Law_of_Divorce_in_India
7. LAW COMMISSION OF INDIA REPORT
8. Sujatha Law Book Series
9. http://www.lawferry.com