Contemplating Divorce

Everything you need to know about divorce procedure for Indian Christians

Everything you need to know about divorce procedure for Indian Christians

India gained independence in 1947, but by such time, there was a heavy influence of the British laws and the Anglican Church on the formulation of laws in India, especially for Christians. The Christian Marriage Act, 1872, makes many references to the Church of England as well as the Church of Scotland and the Church of Rome (Roman Catholics). More simply put, this law relates to the solemnization in India of the marriages of persons professing the Christian religion.

Interestingly enough, the law governing divorces of persons professing the Christian religion in India came to be passed in 1869, which was the Divorce Act, 1869. Of course, there have been several amendments to the original act to keep it relevant even today.

Read ahead to understand more about the modes of termination of marriages under the provisions of the Divorce Act, 1869.


What are the grounds for divorce under the Divorce Act, 1869 (DA)?

(For ease of understanding, please note that the one who approaches the Court is the Plaintiff/Petitioner/Applicant, and the one against whom the proceedings have been filed is the Defendant/Respondent. And, a decree is the final order in a specified format)

Either the husband or the wife may petition the appropriate Court to grant a divorce on the following grounds (Note: The grounds are not verbatim and complete and are simplified for this article):

● Adultery committed by the respondent;
● The respondent has ceased to be Christian by conversion to another religion;
● The respondent has become of unsound mind for more than two years before the filing of the divorce proceedings and that the condition is incurable;
● The respondent has been suffering from a communicable venereal disease for more than two years;
● The respondent has not been heard of as being alive for more than seven years;
● The marriage has not been consummated due to the wilful refusal of the respondent to consummate the marriage;
● The respondent has failed to comply with a decree for restitution of conjugal rights for more than two years;
● The respondent has deserted the petitioner for more than two years;
● The respondent has treated the petitioner with such cruelty that it would be harmful or injurious for the petitioner to live with the respondent.

The above grounds can be availed of by either the wife or the husband. There is a special provision in the DA for the wife, where she can file for divorce if the husband has committed rape, sodomy or bestiality after the solemnization of the marriage.


Provisions for Divorce by Mutual Consent under the DA

For filing divorce proceedings by mutual consent under the DA, a petition for dissolution of marriage may be presented to the appropriate Court by both the husband and the wife together. The grounds for such a petition being that they have been living separately for more than two years, and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

After the divorce proceedings have been filed, the parties need to wait for an additional six months at least before the decree for divorce may be passed by the Court. However, the parties have to ensure that they approach the Court before 18 months have elapsed from the date of filing of the divorce petition.

Under any form of proceedings which result in the dissolution of a marriage, the Court will have to be satisfied as to the contents of the petition and may make any enquiries as it thinks are proper in the interest of justice. The Court will also ascertain that there is no illegality or fraud in the proceedings and that all the legal requirements have been duly complied with by the parties. Only after these conditions are fulfilled will the Court pass the divorce decree.

It is imperative to note that under the DA, even after the divorce decree has been issued, the divorce does not become effective immediately. There is a waiting period of another six months minimum from the date of the order, after which, the divorce shall become effective.


Nullity of Marriage

As per Section 18 of the DA, any husband or wife may present a petition to the appropriate Court, praying that his or her marriage may be declared to be null and void.

Such a decree may be passed on any of the following grounds:
● that the respondent was impotent at the time of the marriage and also at the time of the institution of the suit;
● that the parties are related to each other in such a manner which is prohibited by law;
● that the respondent was a lunatic or idiot at the time of the marriage;
● that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.

Apart from the above grounds, the Court can pass a decree of nullity of a marriage if it finds that the consent of either the husband or the wife was obtained by force or fraud at the time of the marriage.

Dissolution of marriage and nullity of marriage are different, because the reasons or grounds for which the marriage is brought to an end, are different. The terminology is important because that determines the kind of proceedings that need to be filed in the Court.


Can I get remarried immediately after I get a divorce?

The appropriate answer to this question would depend on the facts and circumstances of a particular case. In the case of divorce by mutual consent, there is no right of appeal against the decree since the divorce decree is by mutual consent. Under Indian law, if there is any order or decree that is passed by the mutual consent of the parties to the proceedings, there can be no challenge to that decree/order, except where it is proved that the said order or decree was obtained by fraud, coercion, undue influence, etc. However, in those circumstances, the burden of proof is extremely heavy upon the one alleging such wrongdoing. Thus, for anyone who has obtained a divorce by mutual consent, he/she can get married upon receiving the decree of divorce.

In the case of a decree of divorce granted in contested proceedings, the answer is not straight-forward. The other party, whether it is the husband or the wife, may file an appeal. If a stay is granted to the decree in the appeal, then the marriage would still be alive and not terminated. Only after the final outcome of the appeal can you know whether the decree of Divorce has been upheld or has been set aside. Only if the appeal has been dismissed, can the party intending to remarry can do so.

There is a specific time granted to file an appeal against the decree, and if until the lapse of that said time period, no appeal has been filed, the party intending to remarry can do so.

Note: There are other provisions under the DA, regarding judicial separation, alimony, succession, etc. that you need to be aware of. Only a licensed legal practitioner can adequately advise you on the best course to adopt that will suit your requirements. Please remember that although the law is the same for all, it can never be ‘one size fits all.’



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