(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
(2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.]
Objects and Reasons—Clause 5.—This clause seeks to provide the grounds of dissolution of marriage. Existing provisions of section 10 of the Act make a distinction between the husband and the wife in the matter of grounds on which they could obtain dissolution of marriage. While adultery, without any other ground, is a ground for seeking dissolution of marriage by the husband, in the case of the petition by the wife, there is in addition another requirement that it should be incestuous adultery or bigamy with adultery or adultery coupled with cruelty or desertion for two years. Certain High Courts including the High Court of Kerala have struck down the words “incestuous” and “adultery coupled with” in section 10 on the ground of gender inequality. (Ammini £./. v. Union of India A.I.R. 1995 Ker. 252 (S.B.); N. Sarada Mani v. G. Alexander A.I.R. 1988 Andh. Pra. 157 (S.B.)). This clause seeks to substitute the said section 10 with a new section providing same grounds for husband and wife for seeking dissolution of marriage. However, a wife may also get divorce on the ground that the husband has since the solemnization of marriage been guilty of rape, sodomy or bestiality.
At present a petition for dissolution of marriage could be presented either to the District
Court or to the High Court. It is proposed that the petition may henceforth be presented to
the District Court only. . .
COMMENTS
Simply because the matrimonial advertisement was given with a different address, it cannot be said to be a fraud when in response to the advertisement the wife’s father sent a letter, the husband’s father gave a detailed reply, wherein his address had been correctly noted: Av. B A.I.R. 2001 Ker. 71.
“Mutual consent” is not a ground for divorce under the S. l(2)(d) of the British
Matrimonial Causes Act, 1973, and thus, cannot be read into the Indian Divorce Act merely
because of S. 7. No legislation whenever made by a foreign Parliament can automatically
become incorporated in another sovereign State’s legislation: Reynold Rajamani v. Union of
IndwA.I.R.1982S.C1261:(1982)2S.CC.744. .
Adultery is a matrimonial offence when there is consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage: Dawn Henderson v. D. Henderson A.I.R. 1970 Mad. 104 (S.B.); Ka. ErsilianLyngdohv. U. Kordring Roy Sad A.I.R. 1986Gau.42.
It is not possible to import the definition of “adultery” found in S. 497 of the Indian Penal Code, while considering the provisions of the Indian Divorce Act. Thus, even where the husband was only having intercourse with a woman whom he had married and she not being the wife of another man, he could be said to have committed adultery: M.T. Carunya v. S.Joseph Chellapa (1996-1) 117 Mad.L.W. 130 (F.B.). n
What constitutes cruelty depends on circumstances of each particular case like the parties’ physical and mental condition, character and social status: Ka. Amal Lyngdoh v. U. Jabin Pakem A.I.R. 1987 Gau. 69.
It is established that adultery is not likely to be proved by direct evidence; it is proved mainly by circumstantial evidence and on the Court being satisfied about want of collusion and availability of opportunity to have guilty intercourse; it is, however, necessary to remember that the petitioner’s evidence must be such as would lead the guarded discretion of a reasonable and just man to reach the conclusion of adultery: Noreen Judith Sandhurst v. Reymond Bernard Sandhurst A.I.R. 1982Karn. 102(S.B.).
20[10-A. Dissolution of marriage by mutual consent.—(1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.]
21[11. Adulterer or adulteress to be co-respondent.—On a petition for dissolution of marriage presented by a husband or wife on the ground of adultery, the petitioner shall make the alleged adulterer or adulteress a corespondent, unless the petitioner is excused by the Court from so doing on any of the following grounds, namely:—
(a) that the wife, being the respondent is leading the life of a prostitute or the husband, being respondent is leading an immoral life and that the petitioner knows of no person with whom the adultery has been committed;
(b) that the name of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has made due efforts to discover it;
(c) that the alleged adulterer or adulteress is dead.]
Objects and Reasons—Clause 7.—This clause seeks to substitute existing section 11 with the addition of the words “or adulteress” to cover cases where the wife sues the husband for divorce on the ground of adultery. The amendment is consequential to the amendments made in the grounds of divorce under section 10.
COMMENTS
S. 11 is mandatory. There are three exceptions to the requirements. Even in a case where these exceptions apply, there is an obligation on the petitioner to seek the leave of the Court for not impleading the alleged adulterer as co-respondent: K. Kumar Raju v. K. Umamaheshwari A.I.R. 1995 Andh. Pra. 222 (S.B.).
12. Court to be satisfied of absence of collusion.—Upon any such petition for the dissolution of a marriage, the Court shall satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or not the
20. Inserted by Act 51 of 2001, S. 6 (w.e.f. 3-10-2001).
21. Substituted by Act 51 of 2001, S. 7, for S. 11 (w.e.f. 3-10-2001). Prior to its substitution, S. 11 read as under:—
“II. Adulterer to be co-respondent.—Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the following grounds, to be allowed by the Court:—
(1) that the respondent is leading the life of a prostitute, and that 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.”
petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery, or has condoned the same, and shall also enquire into any counter-charge which may be made against the petitioner.
13. Dismissal of petition.—In case the Court, on the evidence in relation to any such petition, is satisfied that the petitioner’s case has not been proved, or is not satisfied that the alleged adultery has been committed,
or finds that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,
or that the petition is presented or prosecuted in collusion with either of the respondents,
then and in any of the said cases the Court shall dismiss the petition.
Objects and Reasons—Clause 8.—This clause seeks to amend section 13 of the Act so as to do away with the enabling provision for presenting a petition for dissolution of marriage to the High Court after such a j. etition has been dismissed by the District Court.
14. Power to Court to pronounce decree for dissolving marriage.—In case the Court is satisfied on the evidence that the case of the petitioner has been proved,
and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, 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 declaring such marriage, to be dissolved
Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery,
or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition,
or of cruelty lo wards the other party to the marriage,
or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse,
or of such wilful neglect or misconduct of or towards the other party as has conduced to the adultery.
Condonation.—No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.
22. Last paragraph of S. 13 omitted by Act 51 of 2001, S. 8 (w.e.f. 3-10-2001). Prior to its omission, the paragraph read as under:—
“When a petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court.”
23. The words “in the manner and subject to all the provisions and limitations in sections 16 and 17 made and declared” omitted by Act 51 of 2001, S. 9 (w.e.f. 3-10-2001).
Objects and Reasons—Clause 9.—This clause seeks to amend section 14 of the principal Act. The amendment is consequential to the amendments made in sections 16 and 17 of the Act.
COMMENTS
The standard of proof required for divorce under the Act is that “the Judge should be satisfied beyond any reasonable doubt as to the commission of the matrimonial offence”, a clear requirement of S. 14. Thus, where neither the quantity nor quality of evidence on record justified grant of divorce, held, the mere fact that the respondent had not chosen to contest the proceedings would in no way permit lowering down of the standard of proof required for the grant of such a decree: Deepak Bakshi v. Anita Mariene Faria Bakshi A.I.R. 1985 P.&H. Ill (S.B.).
15. Relief in case of opposition on certain grounds.—In any suit instituted
for dissolution of marriage, if the respondent opposes the relief sought on the
ground, in case of such a suit instituted by a husband, of his adultery, cruelty
or desertion, 24[* * *], or, in case of such a suit instituted by a wife, on the ground
of 25[her adultery, cruelty or desertion], the Court may in such suit give to the
respondent, on his or her application, the same relief to which he or she would
have been entitled in case he or she had presented a petition seeking such
relief, and the respondent shall be competent to give evidence of or relating to
26[ such adultery, cruelty] or desertion.
Objects and Reasons—Clause 10.—This clause seeks to amend section 15 of the Act. The amendment are consequential to the changes made in the grounds of divorce under section 10.
16. Decrees for dissolution to be nisi.—Every decree for a dissolution of marriage made by a High Court, 27[* * *] shall, in the first instance, be a decree nisi, not to be made absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court, by general or special order from time to time, directs.
Collusion.—During that period any person shall be at liberty, in such manner as the High Court, by general or special order from time to time directs, to show cause why 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 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.
The High Court may order the costs of counsel and witnesses, and otherwise arising from such cause being shown, to be paid by the parties or such one or more of them as it thinks fit, including a wife if she have separate property.
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.
24. The words “without reasonable excuse” omitted by Act 51 of 2001, S. 10 (w.e.f. 3-10-2001).
25. Substituted by Act 51 of 2001, S. 10, for “her adultery and cruelty” (w.e.f. 3-10-2001).
26. Substituted by Act 51 of 2001, S. 10, for “such cruelty” (w.e.f. 3-10-2001).
27. The words “not being a confirmation of a decree of a District Court” omitted by Act 51 of 2001, S. 11 (w.e.f. 3-11-2001).
