GROUNDS FOR DIVORCE UNDER INDIAN DIVORCE ACT, 1869.
by Vijaya Laxmi Mallawat
INTRODUCTION
The Indian Divorce Act, 1869 received the assent of the governor on 26th February, 1869.
The Act came into existence on 1 April 1869. The British had first enacted this law before Independence and it continues to be force today.
Preamble – WHEREAS it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial.
This Act originally extended to the whole of India except the State of Jammu and Kashmir.
The government of India revoked the special status given to the State of Jammu and Kashmir which was bestowed through Article 370 of Indian Constitution in August 2019 through a Presidential Order and the passage of a resolution in Parliament. Therefore, now this act would also be applicable in this state.
The Indian Divorce Act governs divorce among the Christian couples in India. The parties must also reside in India to apply for any remedy under the Act.
GROUNDS FOR DIVORCE AFTER AMENDMENT
For section 10 of the principal Act (act 4 of 1869), with changing requirements and an aim to remove difficulties the following section shall be substituted, namely:-
“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 dissolve on the ground that since the solemnization of the marriage, the respondent:-
(i) 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 (dangerous) 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 (example: HIV AIDS) 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 wilfully 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
(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.”
DISSOLUTION OF MARRIAGE BY MUTUAL CONSENT
Section 10A as introduced by Act 51 of The Indian Divorce (Amendment) Act, 2001, dated: 24-09-2001.
10A. 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, have 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 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.”.
CASE LAW
Calcutta High Court
Olga Thelma Gomes V. Mark Gomes on 27 January, 1959[1]
Bench: S Lahiri , B Banerjee, A Ray
FACTS
The petitioner Olga Thelma Gomes filed the petition for dissolution against her husband on the allegation that her husband was guilty of adultery coupled with desertion for more than two years and also on the allegation that her husband was guilty of adultery coupled with cruelty.
The petitioner states on oath that both she and her husband have been living in India since their birth and both of them are Indian Christians.
Very often he used to return home at night in a drunken condition and on some occasions he did not return home at all. In her evidence she states that on 2-6-1955, her husband wanted to go away for the night alleging that he was going out on a pressing business. As she protested, her husband slapped her on her cheek, gave her a push as the result of which the petitioner fell down and sustained a bleeding injury on her forehead. She even found a girl lying in his bed with her body covered with a sheet up to the throat.
ISSUE
The girl with whom the husband had sexual intercourse was unmarried. Inspite of this, can the offence be considered as adultery as per this act?
JUDGEMENT
The evidence of cruelty and desertion was quite satisfactory and there is no reason why that evidence should not be believed.
Section 497 of the Indian Penal Code. According to this section adultery is defined as:- in order to constitute an offence of adultery three ingredients are necessary: (a) the woman with whom sexual intercourse is committed must be or must be known to be or must be reasonably believed to be the wife of another man, (b) the act of sexual intercourse must be committed without the consent of the man and (c) the act of sexual intercourse must not amount to an offence of rape. According to this definition, a man who commits an act of sexual intercourse with a prostitute or with an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery. If the word “adultery” as used in Section 10 of the Indian Divorce Act has the same meaning as in Section 497 of the Indian Penal Code, the respondent in the present case cannot be said to be guilty of adultery because the girls with whom he is alleged to have committed acts of sexual intercourse have not been proved to be married women.
In the court’s opinion, however, this narrow definition of the word “adultery” as given in Section 497 of the Indian Penal Code has no application to a proceeding for divorce under Section 10 of the Indian Divorce Act The definition of adultery in Section 497 of the Indian Penal Code applies only to male offenders and under the Indian Penal Code , a woman cannot be said to be guilty of adultery but the very first paragraph of Section 10 of the Indian Divorce Act authorises a husband to present a petition for dissolution of marriage on the ground of adultery by his wife. This fact, by itself, is sufficient to show that the word “adultery” has been used in a wider sense in Section 10 of the Indian Divorce Act than the definition given in Section 497 of the Indian Penal Code.
Also the law laid down by matrimonial courts in England has been summarised in the following words:
“For the purposes of relief in the matrimonial jurisdiction adultery means consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse.”
Mr. Gupta (Amicus curiae) argued that under the Indian Divorce Act it was not necessary that adultery must be committed with a married woman.
Confirmation of a decree nisi for dissolution of marriage was enforced.
RECOMMENDATIONS AND SUGGESTIONS
Adultery has been very intelligently interpreted in accordance with English law to meet the purpose of this Act, which otherwise would become restricted had the definition of Indian Penal Code would be followed.
[1] AIR 1959 Cal 451, 63 CWN 395
