Indian Divorce Act, 1869: Why amendments were required?

Introduction

The termination of a married relationship by legal procedures is known as divorce. During the course of a marriage, partners work together to pay debt, purchase property, and handle financial affairs, creating an alliance. This union ends during the divorce process, returning both parties to a condition of near equality. The Indian Divorce Act of 1869 encapsulates the legal framework governing Christian divorce in the Indian context. This is a very important piece of legislation for Christians because personal laws vary for religions and require diverse legal systems to be applied.

The Act came into effect on April 1st, 1869. With the exception of the state of Jammu & Kashmir, it covers the entire nation. Moreover, it is exclusively applicable to individuals who identify as Christians. In order to seek any remedy under the Act, the parties must also be residents of India.

Grounds for dissolution of marriage

The Indian Divorce Act’s Section 10 outlines the reasons upon which a court may end a marriage. The husband or wife must submit a petition to the District Court in order to obtain a divorce. This is the court that the parties got married in or last lived together, depending on whose jurisdiction it was.

According to section 10 of this act, a court may grant a divorce under any of the following grounds if the

respondent [1]

• has committed adultery; or
• has converted to another faith and is no longer a Christian; or
• has continuously suffered from an irreversible mental illness for a minimum of two years prior to the petition’s presentation.
• 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
• has been absent from the public for a minimum of seven years, as reported by people who would have known about the respondent’s existence.
• has purposefully chosen not to consummate the union, and as a result, the union has not been completed; or
• 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
• has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or
• 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

Flaws in the original act

Some of the harsh and discriminatory provisions in the IDA, 1869 included: a husband could file for divorce on the grounds that his wife had committed adultery; a wife could seek dissolution of marriage to prove another marital sin, such as cruelty, abandonment, or conversion bigamy, in addition to adultery. In order to leave an unpleasant marriage, it was therefore equally difficult for parties to show adultery or adultery combined with another matrimonial wrong. In Ammini E.J. and Others v. Union of India & Others, 1995 [2] the Hon. Kerala High Court invalidated portions of Section 10, which discriminated against women by requiring proof of adultery in addition to the grounds of cruelty and desertion.

Unlike the provisions in the Special Marriage 1954 (SMA) [3] and Hindu Marriage Act, 1955 (HMA) [4], there was no provision in the IDA permitting couples to mutually consent even in cases when both parties believed the marriage was impractical and they could not live together. In certain circumstances in the past, even the courts acknowledged the difficulties faced by the parties and the pointlessness of keeping the marriage tie, but they were unable to offer any meaningful remedy because there were no measures in place.

Amendment in 2001

In November 1998, the Government received the 164th Report on “The Indian Divorce Act, 1869” from the Law Commission of India. Among other things, the report suggested that a Parliament should pass a complete law that would regulate marriage, divorce, and other related matters pertaining to Indian Christians. The Christian Parliamentarians unanimously felt that Section 10 ought to be changed in order to eliminate gender inequity. In order to prevent procedural snags, they also decided to make changes to Sections 17 and 20 of the Act. The India Divorce (Amendment) Act, 2001 was introduced in 2001 and significantly revised the India Divorce Act, 1869, adding more grounds for divorce. The provision for “Dissolution of marriage by mutual consent” was inserted in Section 10 -A. According to this clause, a Christian couple may file a petition for the mutual consent dissolution of their marriage to each other as long as they have been living apart for at least two years and have not lived together since. Furthermore, they have to jointly agree that their marriage should be dissolved. However, it is argued that Section 10-A violates religious discrimination because it forces Christian couples to live apart for two years, but other religions’ marriage laws only mandate a one-year separation. The two-year wait period seems unreasonable when women are completely conflicting with their spouses. Consequently, both Article 14 and Article 21 of the Constitution are violated by this Section.

Conclusion

In conclusion, the Act has mostly been amended and brought up to date with other matrimonial laws around the nation, but there are still some differences and gaps that should have been investigated. The Divorce Act was developed based on the English Matrimonial Causes Act of 1857. The Matrimonial Causes Act of 1857 has undergone multiple amendments to adapt to evolving social norms. A year of separation must therefore be sufficient in view of women’s fragility and low financial standing, and the Divorce Act must be updated as needed to keep up with the times.

References

• Indian Divorce Act, 1869 pdf
• Ammini J. And Etc. vs Union Of India (Uoi) And Ors. AIR 1995 Ker 252
• Special Marriage 1954 (SMA)
• Hindu Marriage Act

Sources used

https://www.deccanchronicle.com/nation/current-affairs/141223/hc-seeks-centres-response-on-two- year-wait-period-for-mutual-divorc.html

Kusum. “THE INDIAN DIVORCE (AMENDMENT) ACT 2001: A CRITIQUE.” Journal of the Indian

Law Institute 43, no. 4 (2001): 550–58. http://www.jstor.org/stable/43953399.