THE DIVORCE ACT, 1869 Part II

or of nullity. — or to make decrees of nullity of marriage except where the marriage has been solemnized in India, and the petitioner is resident in India at the time of presenting the petition,

or to grant any relief under this Act other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition.]

COMMENTS

The Act applies to Nagaland also: Nikoto Senw v. Kani Li Kini Limi (1986) 1 Hindu L.R. 614 (Gau.).

The Indian Divorce Act, 1869 can be invoked to dissolve the marriage between the parties professing Christian religion and who are domiciled in India, even if the marriage was solemnized out of India: Vincent Joseph Konath v. Jadntha Angela Vincent Konath A.I.R. 1994 Bom. 120.

The two requirements for filing a petition for a decree of nullity of marriage are: (i) the marriage having been solemnized in India; and (ii) the petitioner being resident in India when the petition is presented: Mary Kurian v. T.T. Joseph A.I.R. 1980 Ker. 131 (D.B.).

The Act does not require that the parties’ marriage should have been solemnized in any particular form; it is sufficient that one of the parties was a Christian when the petition was filed: Pramilla Khosla v. Rajnish Kumar Khosla A.I.R. 1979 Del. 78. But see G. Packia Raj v. P. Subbammal A.I.R. 1991 Mad. 319 (S.B.), where marriage between a Hindu and a Christian was performed according to “seethirutha” form of marriage, held, the marriage being not valid, no relief could be claimed under S. 10 of the Divorce Act.

3. Interpretation clause. — In this Act, unless there be something repugnant in the subject or context, —

⁸[(1) “High Court”. — “High Court” means with reference to any area — (a) in a State, the High Court for that State; ⁹[(b) in Delhi, the High Court of Delhi;

(c) in Manipur and Tripura, the High Court of Assam;¹¹

(d) in the Andaman and Nicobar islands, the High Court at Calcutta;

(e) in the ¹²[Lakshadweep], the High Court of Kerala;

^I3[(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;]

8. Substituted by the Adaptation of Laws (No. 2) Order, 1956

9. Substituted by Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1968, with effect from 1st November, 1966.

10. Cl.^bb) omitted by Himachal Pradesh (Adaptation of Laws on State and Concurrent Subjects) Order, 1973, with retrospective effect from 25th January, 1971 .

11. Now Gauhati High Court.

12. Substituted by Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974, with retrospective effect from 1st November, 1973.

13. Inserted by the Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968, with effect from 1st November, 1966.

14. Substituted by A.0. 1950.

(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, ¹⁵[or of whose jurisdiction under this Act the marriage was solemnized or], 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;                                                                                               

(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 ¹⁷[India] or elsewhere;

(9) “Desertion”. — “desertion” implies an abandonment against the wish of the person charging it; and

(10) “Property”. — “property” includes, in the case of a wife, any property to which she is entitled for an estate in remainder or reversion or as a trustee, executrix, or administratrix; and, the date of the death of the testator or intestate shall be deemed to be the time at which any such wife becomes entitled as executrix or administratrix.

Objects and Reasons — Clause 3. — It is proposed to remove gender inequality in the matter of grounds of divorce as available to husband and wife under section 10 of the Act by substituting that section vide clause 4 of the Bill. As the expressions “incestuous adultery” and “bigamy with adultery” as occurring in section 10 of the Act will no longer be in the said section, these expressions have become redundant. This clause, therefore, seeks to omit the definitions of those expressions.

      COMMENTS     

A petition for a decree of nullity of marriage for the consent of either party having been
obtained by force or fraud has necessarily to be heard by the High Court which alone has the
exclusive jurisdiction in that behalf; it is difficult to comprehend that the statute makes
available such a ground only to a limited class of persons residing in the limits of the High
Court’s original civil jurisdiction; thus, where neither of the parties to the marriage had
resided within such limits of the Bombay High Court but had last resided at a place outside
such limits, held, the Bombay High Court had jurisdiction to entertain the petition under
S 19:^v.BA.IR.1993Bom.61.                                                                              

15. Substituted by Act 51 of 2001, S. 3, for “or of whose jurisdiction under this Act” (w.e.f., 3-10-2001).

16. Cls. (6) and (7) omitted by Act 51 of 2001, S. 3 (w.e.f. 3-10-2001). Prior to their omission, Cls. (6) and (7) read as under: —

“(6)” Incestuous adultery”. — “incestuous adultery” means adultery commilled 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;”

17. Substituted by A.0. 1950.                              

                                                                II—JURISDICTION                            

4. Matrimonial jurisdiction of High Courts to be exercised subject to Act—Exception.—The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such Courts and by the District Courts subject to the provisions in this Act contained, and not otherwise; except so far as relates to the granting of marriage licenses, which may be granted as if this Act had not been passed.

5. Enforcement of decrees or orders made heretofore by Supreme or High Court.—Any decree or order of the late Supreme Court of Judicature at Calcutta, Madras or Bombay sitting on the ecclesiastical side, or of any of the said High Courts sitting in the exercise of their matrimonial jurisdiction, respectively, in any cause or matter matrimonial, may be enforced and dealt with by the said High Courts, respectively, as hereinafter mentioned, in like manner as if such decree or order had been originally made under this Act by the Court so enforcing or dealing with the same.

6. Pending suits.—All suits and proceedings in causes and matters matrimonial, which when this Act comes into operation are pending in any I ligh Court, shall be dealt with and decided by such Court, so far as may be, as if they had been originally instituted therein under this Act.

¹⁸7. Court to act on principles of English Divorce Court.—[Omitted by the Indian Divorce (Amendment) Act, 2001 (51 of‘2001), section 4 (w.e.f. 3-10-2001)]

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.

Power to transfer suits.—The High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such District Judge.

9. Reference to High Courts.—When 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 under this Act by a District Court or at any subsequent stage of such suit, or in the execution of the decree therein or order thereon,

the Court may, either of its own motion or on the application of 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.

If the question has arisen previous to or in the hearing, the District Court may either stay such proceedings, or proceed in the case pending such reference, and pass a decree contingent upon the opinion of the High Court upon it.

18. Prior to its omission, S. 7 read as under:—

“7. Court to act on principles of English Divorce Court.—Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief:

Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded.                                                  

If a decree or order has been made, its execution shall be stayed until the receipt of the order of the High Court upon such reference.

III—DISSOLUTION OF MARRIAGE

¹⁹[10. Grounds for dissolution of marriage.—(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent—

(z) has committed adultery; or                                              

(ii) has ceased to be Christian by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

(v) has, for a period of not less than two years immediately
preceding the presentation of the petition, been suffering from venereal
disease in a communicable form; or                                                         

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

(vii) has willfully refused to consummate the marriage and the marriage has not therefore been consummated; or

(viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or

(ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or

19. Substituted by Act 51 of 2001, S. 5, for S. 10 (w.e.f. 3-10-2001). Prior to its substitution, S. 10 read as under:—

” 1 0. When husband may petition for dissolution.—Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution.—Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman,

or has been guilty of incestuous adultery,

or of bigamy with adultery,

or of marriage with another woman with adultery,                                                                                                 

or of rape, sodomy or bestiality,                                                                

or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro,

or of adultery coupled with desertion, without reasonable excuse for two years or upwards.

Contents of petition.—Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.”