DIVORCE UNDER INDIAN DIVORCE ACT

Introduction

Marriages among Christians are governed by the Christian Marriage Act, 1872. Christian divorces are governed by the Indian Divorce Act, 1869 (“IDA”). Under the IDA, proceedings for divorce can be initiated by either party to the marriage by filing a divorce petition. The IDA also includes provisions on custody of children and division of property. 

There are two types of divorces available to Indian Christians: firstly, there is a “no-fault petition” filed by both the parties which may be equated to divorce by mutual consent under The Hindu Marriage Act. Secondly, there is “fault liability petition” wherein either of the spouses has the right to file for divorce on the grounds specified under the IDA. 

Grounds for Dissolution of marriage under IDA

Divorce may be initiated by one party filing a “fault liability petition” without the consent of the other party. Under section 10 of the IDA, a District Court, under whose jurisdiction the marriage was solemnized, or the couple last resided together, may dissolve a marriage upon filing a fault liability petition. Following are the grounds:

  1. Where either of the parties had committed adultery.
  2. Where any of the party ceases to be a Christian.
  3. Where any of the party is/was of unsound mind for the last two years.
  4. Where either party has been suffering from leprosy or a venereal disease from the last two years.
  5. Where any of the party has willfully refused to consummate the marriage.
  6. When any party has deserted the spouse for the last two years or more.
  7. Where any party has treated the spouse with cruelty.

Petition filed by the wife

A wife alone can also present a petition on some additional grounds; a wife can file for divorce if the husband:

  • Has committed bigamy.
  • has been guilty of incestuous adultery since the solemnization of marriage
  • Has performed bigamy along with adultery.
  • Has committed rape or bestiality.

Petition filed by the husband

A husband alone may file for divorce by claiming that his wife has committed adultery after the marriage was solemnized.

Divorce by mutual consent

Christians who are not satisfied with their wedlock may file for divorce through mutual consent. Under section 10A of the IDA, the following factors needs to be fulfilled: 

  1. The couple must be living separately for at least 2 years. 
  2. The couple must prove that they have not been living as husband and wife. 
  3. The issues such as custody of child, maintenance of the child, and the division of the property should be settled mutually by the parties. 

There are three aspects on which the parties must reach a consensus, namely: 

  1. Alimony or Maintenance: As per the IDA, there is no minimum or maximum limit of alimony or maintenance prescribed 
  2. Custody of the child: The custody of the child can also be shared or joint or exclusive depending upon the understanding of the spouses.
  3. Property Rights: The couple seeking divorce must decide who will get which part of the property (both movable and immovable property). 

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

Nullity of MarriageThe IDA also contains provisions for annulling a marriage. Either the husband or the wife may file a petition for annulling a marriage before the District Court within whose jurisdiction the marriage was solemnized. The grounds on which such a petition may be filed are (a) there exists impotency or lunacy of a party at the time of marriage; or (b) a petition of violence can also be filed if the other party was still married to his/her former spouse during the marriage. 

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