Divorce petition

Indian Divorce (Amendment) Act, 2001:

The Act finally found its place in the statute book of India on the 3rd of October 2001. The representatives of Churches in India

stated that the teachings of the scripttures were 'what God has united, let no man divide' and, therefore, the Holy Scripture does not accept divorce. However, in the larger interests of the community, and to free the parties from the civil bonds of marriage, they were accepting divorce.

 The Act hovers around amendments to sections 10, 17 and 20 of the Indian Divorce Act, 1869 and the rest of the amendments are consequential in nature. The Indian Divorce (Amendment) Act, 2001, amended the said provisions suitably so as to remove the gender inequality as contained in section 10 and to do away with the procedural delays in obtaining divorce.

The Act repealed the following British Statutes relating to Christian Personal Law which have become obsolete

(i) The Indian and Colonial Divorce Jurisdiction Act, 1926;

(ii) The Indian and Colonial Divorce Jurisdiction Act, 1940; and

(iii) The Indian Divorce Act, 1945.

Section 10 provides same grounds for husband and wife for seeking dissolution of marriage. The four grounds i.e. 'adultery', 'conversion', 'cruelty' and 'desertion' are now available for divorce to both the s*xes. In addition, wife can also obtain divorce on the grounds of 'rape' and 'sodomy' on the part of husband. This was challenged as discriminatory against the man as the same grounds were not available to a Christian man against his wife for dissolution of marriage. The Court held that taking into consideration the muscularly weaker physique of the woman, her general vulnerable physical and social condition and her defensive and non-aggressive nature and role particularly in this country, the legislature can hardly be faulted if the said two grounds are made available to the wife and not to the husband for seeking dissolution of the marriage. For the same reasons, it can hardly be said that on that account the provisions of Section 10 of the Act are discriminatory as against the husband.

The following other grounds for dissolution of marriage are incorporated in the Act:

(i) incurability of an unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition;

(ii) has been suffering from a virulent and incurable form of leprosy; for a period of not less than two years immediately preceding the presentation of the petition;

(iii) has been suffering from venereal disease in a communicable form for a period of not less than two years immediately preceding the presentation of the petition;

(iv) has not been heard of being alive for a period of seven years or more; and

(v) willful refusal to consummate the marriage, and the marriage not having been consummated.

Section 10(a) has been inserted allowing for divorce by mutual consent. However a separation of 2 years has been provided as against other legislations which provide for one year separation period before filing a petition for divorce.

Now Section 11 with the addition of the words "or adulteress” covers cases where the wife sues the husband for divorce on the ground of adultery. Thus both, adulterer or adulteress would be co-respondent in case of divorce petition. The amendment is consequential to the amendments made in the grounds of divorce under section 10. The adulterer/adulteress has to be named as the co-respondent unless the requirement is waived by leave of the court on grounds specified in the Act. K. Kumar Raju v. K. Maheswari and Vijayan v. Bhanusundariwere petitions by husbands under the Indian Divorce Act, where the adulterers were neither impleaded as co-respondents nor the courts, leave sought for such waiver. The High Courts consequently refused to confirm the trial court's decree granting divorce to the husband. In M.V. Ramana vs. M. Peddiraju, where the requirement of impleadment of co-adulterer was not complied with, a husband's petition for divorce on ground of adultery was dismissed.

The Act does away with the enabling provision for presenting a petition for dissolution of marriage to the High Court after such a petition has been dismissed by the District Court and with the requirement of confirmation of decree of District Court by the High Court. At present a petition for dissolution of marriage could be presented either to the District Court or to the High Court. In order to simplify the procedure and obviate delay and consequential hardship to estranged couples the Act has done away with the requirement of confirmation. (Section 17 & 20)

Section 34 &35 were amended to provide for damages from adulterer or adulteress. Now the wife is also allowed to claim damages and costs from the adulteress. This is consequential to the changes made in section 10 of the Act. However it is pertinent to mention here that these provisions have been omitted under the Amended Act.

The maximum amount of maintenance pendente lite has been amended and now the upper limit is removed. It is left to the discretion of the court to decide the maintenance amount depending on the circumstances of each case. And now provision has been made for disposal of applications for grant of alimony pendente lite within sixty days from the date of application verified by affidavit. (Sec. 36)

This is consequent to the amendment made in the Criminal Procedure Code, 1973. Section 125 has been amended and consequential changes under Section 127 of the Code of Criminal Procedure to remove the ceiling of maintenance allowance made to base on assets and income of husband. This amendment which, is in line with the expectations of thousands of families waiting for alimony or the maintenance and education of their children provided immediate relief to them. In each case the maintenance is also accompanied by litigation expenses. This is intended to bring substantial relief to women who earlier had to wait for years to receive maintenance.

The Act allows an appeal from a decree of a District Judge for dissolution of marriage or nullity of marriage which was not provided under the parent Act. (Section 55)

In all, the amendments carried out to the Indian Divorce Act have gone a long way in eliminating the gender inequality. Finally the Indian Christian women have got the much needed respite and are on par with the women in other communities, at least in the matter of divorce and matrimonial relief, if not in all aspects.

Critical Appraisal of the Act of 2001

No one can point a finger at the Indian Divorce (Amendment) Act, 2001 as wanting for gender justice. But has the Act succeeded in fulfilling the aspirations of the Christian community, is a far fetched question. The following lacunae still exist which if rectified may provide a respite to the Indian Christians.

• The Act is a half-baked measure and the Government should bring in a comprehensive legislation on Personal Law of Christian community in consultation with that community as soon as possible. There are a number of enactments in India that deal with Christian marriages and matrimonial causes. Some of them are: The Indian Christian Marriage Act, 1872, The Marriage Validation Act, 1892, The Cochin Christian Civil Marriage Act, 1905, The Indian Matrimonial Causes (War Marriages) Act, 1948, The Convert's Marriage Dissolution Act, 1866 and the Indian Divorce Act, 1869. Marriage law in relation to the Christian community is one of the only cases where the marriage law is completely different and the divorce law is different. They should be amalgamated and a comprehensive law should be developed on this basis.
• If a comprehensive law called the Christian Marriages Act is made applicable to the whole Christian community it would go a long way in solving the issues of the community.
•  The process of codifying Christian law should be complete to enable the community to say that within the Christian community they have no discrimination against the women and that there is justice for all sections. The process which started way back in 1958 is yet to be completed as there is a need to have a unified legislation on Personal Law of Christian Community as in the case of communities professing other religions in India in matters, not only relating to marriage and divorce, but relating to succession and adoption. It is surprising to note that the Christians in India do not have a law on adoption.
•  In effect, the Act is applicable more to the Christians belonging to other countries i.e. the Europeans who resided in Colonial India rather than to Indian Christians. As the parent Act is a replica of the English Law, the provisions aim at addressing the needs of those communities. Hence a new legislation should be brought in taking into account the needs and requirements of the Indian Christians.
•  In other laws, the Hindu Marriage Act and the Special Marriage Act, the period when the spouses opting for dissolution of marriage should be living apart was one year but the same is two years in case of The Indian Divorce (Amendment) Act, 2001. Are only Christian women expected to have so much fortitude to wait for such a long period to get a divorce?
•  Where a grant for interim maintenance is made, it should be strictly seen to it that the orders of the courts are carried out. The judicial magistrate should exercise his discretion properly. There should be a safeguard against arbitrariness in disposal of such cases.
•  The conflict of laws between Catholics - canonical or ecclesiastical and civil should be done away with and there should be a unified legislation applicable to all sects of the community. The `no exit' situation for a Catholic still exists. Marriage among the Catholics is regarded as a sacrament and the vow says 'until death do us apart'. So they neither have divorce nor re-marriage. Even if a Catholic gets divorced under this Act, the Catholic will still have to go to a Catholic Church to get an annulment. If Catholics do not get an annulment and marry under the Special Marriage Act, they will be living in sin. It is not valid as far as the community is concerned. They cannot either remarry or do anything else until the dissolution is confirmed by the church even though they are divorced in a law court. Therefore, this Act is really not very helpful. This applies only for the Catholics, not for others.
• Marriage and divorce being in Concurrent List, the State Governments without having to wait for the Central Government to bring in a unified legislation, can well do to bring in the necessary amendments so as to usher in a state of gender equality in matrimonial matters and also to remove the existing disabilities under the law (the State of Uttar Pradesh has done away with the provisions in section 17 of the Indian Divorce Act, 1869 by a State Amendment, way back in 1957).
• There was no consensus for bringing in a comprehensive legislation on Christian marriage and matrimonial causes. When the longing for uniformity lacks from within, the government is rendered helpless. Hence efforts should be made to builds up an opinion within the community.
•  Ultimately, the enforcement of the Uniform Civil Code would set to rest the many controversies accompanying the application of personal laws in India and make the Constitutional mandate a reality.

Exhibit IV: Agenda for changes in the Indian Divorce Act, 2001

· A unified legislation for the Personal Laws of Christians.

· A comprehensive legislation called the Christian Marriage Act.

· A new legislation suitable to the Indian Christians to be enacted.

· Period of one year separation prior to a petition for judicial separation.

· Conflict of Laws  within the Christian community to be done away with.

· A Catholic should also have the option of divorce.

· State Governments to effect necessary amendments to existing Laws.

· Consensus within the Christian community for a unified legislation.

· Enforcement of the Uniform Civil Code.If you appreciate this answer please click the thank you butrtonon this forum.

Indian Divorce (Amendment) Act, 2001:

The Act finally found its place in the statute book of India on the 3rd of October 2001. The representatives of Churches in India

stated that the teachings of the scripttures were 'what God has united, let no man divide' and, therefore, the Holy Scripture does not accept divorce. However, in the larger interests of the community, and to free the parties from the civil bonds of marriage, they were accepting divorce.

 The Act hovers around amendments to sections 10, 17 and 20 of the Indian Divorce Act, 1869 and the rest of the amendments are consequential in nature. The Indian Divorce (Amendment) Act, 2001, amended the said provisions suitably so as to remove the gender inequality as contained in section 10 and to do away with the procedural delays in obtaining divorce.

The Act repealed the following British Statutes relating to Christian Personal Law which have become obsolete

(i) The Indian and Colonial Divorce Jurisdiction Act, 1926;

(ii) The Indian and Colonial Divorce Jurisdiction Act, 1940; and

(iii) The Indian Divorce Act, 1945.

Section 10 provides same grounds for husband and wife for seeking dissolution of marriage. The four grounds i.e. 'adultery', 'conversion', 'cruelty' and 'desertion' are now available for divorce to both the s*xes. In addition, wife can also obtain divorce on the grounds of 'rape' and 'sodomy' on the part of husband. This was challenged as discriminatory against the man as the same grounds were not available to a Christian man against his wife for dissolution of marriage. The Court held that taking into consideration the muscularly weaker physique of the woman, her general vulnerable physical and social condition and her defensive and non-aggressive nature and role particularly in this country, the legislature can hardly be faulted if the said two grounds are made available to the wife and not to the husband for seeking dissolution of the marriage. For the same reasons, it can hardly be said that on that account the provisions of Section 10 of the Act are discriminatory as against the husband.

The following other grounds for dissolution of marriage are incorporated in the Act:

(i) incurability of an unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition;

(ii) has been suffering from a virulent and incurable form of leprosy; for a period of not less than two years immediately preceding the presentation of the petition;

(iii) has been suffering from venereal disease in a communicable form for a period of not less than two years immediately preceding the presentation of the petition;

(iv) has not been heard of being alive for a period of seven years or more; and

(v) willful refusal to consummate the marriage, and the marriage not having been consummated.

Section 10(a) has been inserted allowing for divorce by mutual consent. However a separation of 2 years has been provided as against other legislations which provide for one year separation period before filing a petition for divorce.

Now Section 11 with the addition of the words "or adulteress” covers cases where the wife sues the husband for divorce on the ground of adultery. Thus both, adulterer or adulteress would be co-respondent in case of divorce petition. The amendment is consequential to the amendments made in the grounds of divorce under section 10. The adulterer/adulteress has to be named as the co-respondent unless the requirement is waived by leave of the court on grounds specified in the Act. K. Kumar Raju v. K. Maheswari and Vijayan v. Bhanusundariwere petitions by husbands under the Indian Divorce Act, where the adulterers were neither impleaded as co-respondents nor the courts, leave sought for such waiver. The High Courts consequently refused to confirm the trial court's decree granting divorce to the husband. In M.V. Ramana vs. M. Peddiraju, where the requirement of impleadment of co-adulterer was not complied with, a husband's petition for divorce on ground of adultery was dismissed.

The Act does away with the enabling provision for presenting a petition for dissolution of marriage to the High Court after such a petition has been dismissed by the District Court and with the requirement of confirmation of decree of District Court by the High Court. At present a petition for dissolution of marriage could be presented either to the District Court or to the High Court. In order to simplify the procedure and obviate delay and consequential hardship to estranged couples the Act has done away with the requirement of confirmation. (Section 17 & 20)

Section 34 &35 were amended to provide for damages from adulterer or adulteress. Now the wife is also allowed to claim damages and costs from the adulteress. This is consequential to the changes made in section 10 of the Act. However it is pertinent to mention here that these provisions have been omitted under the Amended Act.

The maximum amount of maintenance pendente lite has been amended and now the upper limit is removed. It is left to the discretion of the court to decide the maintenance amount depending on the circumstances of each case. And now provision has been made for disposal of applications for grant of alimony pendente lite within sixty days from the date of application verified by affidavit. (Sec. 36)

This is consequent to the amendment made in the Criminal Procedure Code, 1973. Section 125 has been amended and consequential changes under Section 127 of the Code of Criminal Procedure to remove the ceiling of maintenance allowance made to base on assets and income of husband. This amendment which, is in line with the expectations of thousands of families waiting for alimony or the maintenance and education of their children provided immediate relief to them. In each case the maintenance is also accompanied by litigation expenses. This is intended to bring substantial relief to women who earlier had to wait for years to receive maintenance.

The Act allows an appeal from a decree of a District Judge for dissolution of marriage or nullity of marriage which was not provided under the parent Act. (Section 55)

In all, the amendments carried out to the Indian Divorce Act have gone a long way in eliminating the gender inequality. Finally the Indian Christian women have got the much needed respite and are on par with the women in other communities, at least in the matter of divorce and matrimonial relief, if not in all aspects.

Critical Appraisal of the Act of 2001

No one can point a finger at the Indian Divorce (Amendment) Act, 2001 as wanting for gender justice. But has the Act succeeded in fulfilling the aspirations of the Christian community, is a far fetched question. The following lacunae still exist which if rectified may provide a respite to the Indian Christians.

• The Act is a half-baked measure and the Government should bring in a comprehensive legislation on Personal Law of Christian community in consultation with that community as soon as possible. There are a number of enactments in India that deal with Christian marriages and matrimonial causes. Some of them are: The Indian Christian Marriage Act, 1872, The Marriage Validation Act, 1892, The Cochin Christian Civil Marriage Act, 1905, The Indian Matrimonial Causes (War Marriages) Act, 1948, The Convert's Marriage Dissolution Act, 1866 and the Indian Divorce Act, 1869. Marriage law in relation to the Christian community is one of the only cases where the marriage law is completely different and the divorce law is different. They should be amalgamated and a comprehensive law should be developed on this basis.
• If a comprehensive law called the Christian Marriages Act is made applicable to the whole Christian community it would go a long way in solving the issues of the community.
•  The process of codifying Christian law should be complete to enable the community to say that within the Christian community they have no discrimination against the women and that there is justice for all sections. The process which started way back in 1958 is yet to be completed as there is a need to have a unified legislation on Personal Law of Christian Community as in the case of communities professing other religions in India in matters, not only relating to marriage and divorce, but relating to succession and adoption. It is surprising to note that the Christians in India do not have a law on adoption.
•  In effect, the Act is applicable more to the Christians belonging to other countries i.e. the Europeans who resided in Colonial India rather than to Indian Christians. As the parent Act is a replica of the English Law, the provisions aim at addressing the needs of those communities. Hence a new legislation should be brought in taking into account the needs and requirements of the Indian Christians.
•  In other laws, the Hindu Marriage Act and the Special Marriage Act, the period when the spouses opting for dissolution of marriage should be living apart was one year but the same is two years in case of The Indian Divorce (Amendment) Act, 2001. Are only Christian women expected to have so much fortitude to wait for such a long period to get a divorce?
•  Where a grant for interim maintenance is made, it should be strictly seen to it that the orders of the courts are carried out. The judicial magistrate should exercise his discretion properly. There should be a safeguard against arbitrariness in disposal of such cases.
•  The conflict of laws between Catholics - canonical or ecclesiastical and civil should be done away with and there should be a unified legislation applicable to all sects of the community. The `no exit' situation for a Catholic still exists. Marriage among the Catholics is regarded as a sacrament and the vow says 'until death do us apart'. So they neither have divorce nor re-marriage. Even if a Catholic gets divorced under this Act, the Catholic will still have to go to a Catholic Church to get an annulment. If Catholics do not get an annulment and marry under the Special Marriage Act, they will be living in sin. It is not valid as far as the community is concerned. They cannot either remarry or do anything else until the dissolution is confirmed by the church even though they are divorced in a law court. Therefore, this Act is really not very helpful. This applies only for the Catholics, not for others.
• Marriage and divorce being in Concurrent List, the State Governments without having to wait for the Central Government to bring in a unified legislation, can well do to bring in the necessary amendments so as to usher in a state of gender equality in matrimonial matters and also to remove the existing disabilities under the law (the State of Uttar Pradesh has done away with the provisions in section 17 of the Indian Divorce Act, 1869 by a State Amendment, way back in 1957).
• There was no consensus for bringing in a comprehensive legislation on Christian marriage and matrimonial causes. When the longing for uniformity lacks from within, the government is rendered helpless. Hence efforts should be made to builds up an opinion within the community.
•  Ultimately, the enforcement of the Uniform Civil Code would set to rest the many controversies accompanying the application of personal laws in India and make the Constitutional mandate a reality.

Exhibit IV: Agenda for changes in the Indian Divorce Act, 2001

· A unified legislation for the Personal Laws of Christians.

· A comprehensive legislation called the Christian Marriage Act.

· A new legislation suitable to the Indian Christians to be enacted.

· Period of one year separation prior to a petition for judicial separation.

· Conflict of Laws  within the Christian community to be done away with.

· A Catholic should also have the option of divorce.

· State Governments to effect necessary amendments to existing Laws.

· Consensus within the Christian community for a unified legislation.

· Enforcement of the Uniform Civil Code.If you appreciate this answer please click the thank you butrtonon this forum.