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Procedure for divorce under Indian Divorce Act, 1869

Divorce in India is governed by different laws depending on the religion of the parties involved. Hindu, Muslim, Christian, and other personal laws provide specific rules for divorce among adherents of these religions. For individuals who do not follow any specific personal law, the Special Marriage Act, 1954, offers a legal framework for marriage and divorce. For individuals of Christian faith seeking a divorce in India, the Indian Divorce Act, 1869, is the applicable law. This Act sets out the specific grounds for divorce and other matrimonial reliefs such as judicial separation and nullity of marriage, providing a legal process tailored to Christians in India. The Indian Divorce Act, 1869, grants district courts jurisdiction over matrimonial matters under Section 4 of the Act. This section outlines the authority of district courts to hear and decide cases related to divorce, nullity of marriage, judicial separation, and restitution of conjugal rights for individuals of Christian faith seeking marital relief.

District courts are responsible for handling petitions for various forms of marital relief such as:

  • Grounds for Divorce under Section 10 of the Act.

  • Nullity of Marriage under Sections 18 and 19 of the Act.

  • Judicial Separation under Section 22 of the Act.

  • Restitution of Conjugal Rights under Section 32 of the Act.


Grounds for Divorce under the Indian Divorce Act:

Section 10 of the Indian Divorce Act outlines the grounds upon which either party can seek a divorce. These grounds are based on a fault-based approach, where one party is entitled to divorce due to wrongdoing or fault on the part of the other party. The grounds for divorce include:

  • Adultery: If the spouse has committed infidelity.

  • Change of Religion: If the spouse ceases to be a Christian by converting to another religion.

  • Mental Illness: If the spouse has been suffering from a mental illness for a continuous period of two years or more.

  • Venereal Disease: If the spouse has been suffering from a transmissible venereal disease for a period of two years or more.

  • Absence: If the spouse has not been heard of for a period of seven years by those who would have naturally heard from them had they been alive.

  • Non-Consummation: If the marriage has not been consummated due to the willful refusal of the spouse.

  • Failure to Comply: If the spouse has not complied with a decree for restitution of conjugal rights for a period of two years or more.

  • Desertion: If the spouse has deserted the petitioner for a period of two years or more.

  • Cruelty: If the spouse has treated the petitioner with cruelty, which can be either physical or emotional in nature.

Additionally, Section 10(2) allows a woman to seek divorce if her husband is found guilty of rape, sodomy, or bestiality. In any divorce petition filed under Section 10, the burden of proof lies with the petitioner, who must establish the existence of the grounds presented before the district court.


Divorce by Mutual Consent under Indian Divorce Act:

Section 10A of the Indian Divorce Act provides for the dissolution of marriage by mutual consent. In this case, both parties can jointly petition the district court for divorce if they have been living separately for two years or more, are unable to reconcile, and mutually agree to dissolve the marriage. After a period of six months but within 18 months of filing the petition, if both parties still wish to proceed and the court is satisfied with the petition's validity, a decree dissolving the marriage may be issued. The divorce becomes effective from the date of the decree.


Grounds on which marriage can be declared Invalid under Indian Divorce Act: Sections 18 and 19 of the Indian Divorce Act, 1869, address the grounds on which a marriage may be declared null and void. This is known as a decree of nullity. A nullity decree is a legal determination that a marriage was invalid from the start, as if it never existed. Here is an overview of these provisions:

Section 18: Petition for Decree of Nullity under Indian Divorce Act:

Section 18 allows either husband or wife to present a petition to the district court requesting a decree of nullity. The petition asks the court to declare the marriage null and void.


Section 19: Grounds for Decree of Nullity under Indian Divorce Act:

  • This section outlines the specific grounds on which a marriage can be declared null and void:

  1. Impotence: If the respondent was impotent at the time of the marriage and at the time of the institution of the suit, a decree of nullity can be requested.

  2. Prohibited Degrees of Relationship: If the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity, the marriage can be nullified.

  3. Mental Incapacity: If either party was a lunatic or idiot at the time of the marriage, the marriage can be declared null and void.

  4. Existing Marriage: If either party was previously married and their former spouse was still living at the time of the marriage in question, and the previous marriage was still in force, the later marriage can be declared null and void.

  • Additionally, the section states that the district court retains the jurisdiction to grant decrees of nullity of marriage on the grounds that the consent of either party was obtained by force or fraud.

These provisions are important for individuals seeking to have their marriage declared null and void based on the grounds outlined in the law. A successful petition for a decree of nullity results in a legal determination that the marriage never existed and is thus considered void from the outset.

 

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