Indian Divorce Act

Types of Divorce Petitions

A Christian couple can get a divorce with mutual consent (no-fault divorce or mutual divorce), or either spouse may file for divorce without the consent of the other (fault divorce) as per Indian divorce act.

Divorce with Mutual Consent- When the couples agree to a divorce, the courts will consider a divorce with mutual consent as per. Section 10A of Indian Divorce Act, 1869, requires the couple to be separated for at least two years, the couple only needs to provide that they have not been living as husband and wife during this period.

• The couples should be separated for over a year
• The couple should able to prove that they have not been able to live together
• Matters of children’s custody, maintenance and property rights need to be agreed to mutually

Alimony or Maintenance Issues- There are three aspects regarding which the couples have to reach a consensus. One is alimony or maintenance issues. As per divorce law, there is no minimum or maximum limit of support

Custody of the child- The second consideration will be the custody of the child. Child custody in the mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses.

Property Rights- The third is property. The couples must decide who gets which part of the property (both movable and immovable property). Regarding the bank accounts, everything must be divided.

Duration of Divorce- The duration of divorce by mutual consent varies from six to 18 months, depending on the decision of the court.

Dissolution of Marriage (Divorce without Mutual Consent)- According to Indian Diverse act, either the husband or wife can file the petition for dissolution of Marriage. The conditions when they can file the petition are explained in detail below:

Petition by Husband- Any husband can present a petition to the District Court or the High Court, praying that his marriage needs to be dissolved on the ground that his wife has been guilty of adultery since the solemnization of marriage. According to this act, such marriage might be solemnised according to the Christian Marriage Act.

Petition by Wife- Any wife can present a petition to the District Court or the High Court for dissolution of marriage. The wife can file such petition under any of the following circumstance:

• If her husband has exchanged his profession of Christianity for the profession of some other religion
• If the husband went through a form of marriage with another woman
• If her husband has been guilty of incestuous adultery since the solemnization of marriage
• In case of bigamy with adultery
• In case of marriage with another woman with adultery
• In case of rape, sodomy or bestiality
• In case of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro
• In the case of adultery coupled with desertion, without reasonable excuse, for two years or more

Contents of Petition- Every such petition should contain as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.

Dismissal of petition- The court will dismiss the petition for any of the following cases:

• In case of evidence for any petition is not satisfied by the court or the petitioner’s case has not been proved
• If the court is not satisfied that the alleged adultery has been committed,   find 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,
• If the petition is prosecuted in collusion with either of the respondents and any of the said cases, the court will dismiss the petition.

When the District Court dismisses a petition under this act, the petitioner can present a similar petition to the High Court.

Decree for Dissolving the Marriage- In case the court is satisfied, and the evidence of a case of the petitioner has been proved, the court will pronounce a decree declaring such marriage to be dissolved. According to this act, the Court will not be bound to pronounce such decree for the following cases:

• If it finds that the petitioner has been guilty of adultery
• If the petitioner has been guilty of unreasonable delay in presenting or prosecuting such petition,
• In case of cruelty towards the other party to the marriage
• In case of having deserted or willfully separated himself or herself from the other party before the adultery complained and without reasonable excuse,
• In case of such willful neglect or misconduct towards the other party as has conducted to the adultery

Confirmation of decree for dissolution- Every decree for dissolution of the marriage made by a District Judge will be subject to confirmation by the High Court.

Verification by High Court- The High court will verify the cases for confirmation of a decree for dissolution of the marriage. If a court composed of three Judges, the opinion of the majority will prevail or In case of a court composed of two Judges, the opinion of the Senior Judge will be taken. If the High Court needs for further enquiry or additional evidence, can direct such enquiry to be made or evidence to be taken.

The result of the enquiry and the additional evidence will be certified to the High Court by the District Judge, and the High Court will make an order confirming the decree for dissolution of marriage.

Petition for Decree of Nullity- Any husband or wife can present a petition to the District Court or the High Court, praying that his or her marriage may be declared as null and void. Decree of Nullity will be made on any of the following

• The respondent was essential at the time of the marriage and at the time of the institution of the suit
• The couples are within the prohibited degrees of consanguinity or affinity
• In case of either party was a lunatic or idiot at the time of the marriage
• In case the former husband or wife of either party was living at the time of the solemnization, and the marriage with such former husband or wife was then in force.

Nothing in this section will affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

Confirmation of Decree of Nullity- Every decree of nullity of a marriage made by the District Judge will be subject to confirmation by the High Court.

Juridical Separation- Juridical Separation is the legal separation between the husband and the wife, granted by the court on a petition from either the husband or the wife or both. In judicial separation, the marital tie between the wife and husband continues to exist, and neither of them enjoys the freedom to be re-married.

The husband or wife can obtain a decree of judicial separation; on the ground of adultery or cruelty or desertion without reasonable excuse for two years, or more and such decree will have the effect of divorce under the Indian Divorce Act.

Application for Juridical separation- The petition for juridical separation can be applied on the ground of adultery or cruelty or desertion without reasonable excuse for two years or more.

Either husband or wife can make application for judicial separation on any one of the grounds as stated above by petition to the District Court or the High Court; and the court, on being satisfied with the truth of the statements made in such petition will grant judicial decree separation accordingly.

Separated Wife- In case of a judicial separation under this Indian Divorce Act, the wife will whilst so separated, be considered as an unmarried woman for contract, and wrongs and injuries, and suing and being sued in any civil proceedings; and her husband will not be liable in respect of any contract, act or costs entered or incurred by her during the separation.

• In every case of a Juridical separation under this Indian Divorce Act, the wife will be considered as unmarried from the date of the decree, and while the separation continues
• The separated wife will be considered as unmarried concerning the property of every description which she acquires
• The property held by the separated wife can be disposed of by her in all respects as an unmarried woman

Alimony- When two people are married, they must support each other. According to the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. This will include, spouse, dependent children and even indigent parents.

Computing amount of alimony- The alimony claim of either spouse (though, in the vast majority of cases, it is the wife) depends on whether the husband has sufficient means. While deciding that the alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (the property is given to the wife) and his liabilities.

Note: In some cases, the court can make an order to the husband for payment to the wife of monthly or weekly sums for her maintenance and support

Factors that influence the amount of alimony- The alimony amount depends upon the length of marriage in a contested divorce, Divorce after a decade of marriage entitles the spouse to life-long alimony. The other important factors that need to be considered are given here:

• Age of the person who is entitled to receive the alimony
• The economic condition or the earnings potential of the person who is entitled to pay alimony
• The health of spouse, the failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favour of him or her. They can claim larger alimony by their failing health
• The spouse who retains custody of a child would be entitled to either pay lesser alimony or be entitled to a greater amount while the child is a minor

Property Settlements- According to the Indian Divorce Act, if a person is married – irrespective of the fact that a divorce petition has been filed, that person has the right to occupy the property. In case that person is looking after children, the case is much stronger, while the property may be granted to one or the other spouse in the divorce settlement.  Both wife and husband have the right to remain on the property until the decree from the court.

Child custody- The courts will usually agree to the decision of the parents in a mutual consent divorce; the courts will be expected to check the best interest of the child. In case of a contested divorce, the courts will examine the ability of the father or mother be a parent to the child, as stated above, non-working mothers are regularly given custody of their children, but fathers are expected to provide financial support.

Documents Required to File Divorce- The following documents have to be furnished for filing a divorce in India according to the Indian Divorce Act, 1869 :

• Address proof of husband
• Address proof of wife
• Marriage certificate
• Four passport size photographs of the marriage
• Evidence for proving spouses are living separately since more than a year
• Evidence of the failed attempts of reconciliation
• Income tax statement for the last two to years
• Details of the profession and present remuneration
• Information relating to family background
• Details of property and other assets owned by the petitioner

Procedure for Filing a Divorce- The procedure is regulated for filing a divorce in India is generally regulated by the provision of Code of Civil Procedure, 1908. The procedure for seeking a divorce is initiated by filing a petition which is followed by affidavits from both the partners in the district court.

The petition must state the following details

• Name of the parties
• Status and domicile of the parties
• Date and place of marriage
• A principal permanent place where the parties cohabit
• Place where the parties last resided together
• Names of the children of the marriage( if any) with the date of birth
• The ground of seeking divorce or separation
• The facts and details by which the petitioner seeks the relief
• That the parties are not deceiving the court by collaborating

• The averments made are verified after six months couple has to re-appear in the front of court after filing a second motion petition for mutual consent divorce.
• After hearing from both the husband and wife, if the judge is satisfied that all essential grounds are filing the recruitments and meeting the needs of divorce, the couple grants a mutual divorce decree.
• Custody of child, alimony to wife and litigation expenses will be considered on issuing a decree for divorce.