September 30, 2022

Divorce matters of Christian in India

In India, if a person from Hindu Community want to take divorce from his/her spouse, s/he can apply under section 13 of Hindu Marriage act, 1955. If a Sikh, Jain, Buddhist, s/he have same option as given to a hindu because under the definition of hindu in hindu marriage act, these communities/religions also included (basically the religion of Indian origin).

If a Muslim female need a divorce, then she will have two options-

  • Either to use the option of ‘Khula’ under personal (sharia) law, or
  • To file a divorce petition under ‘Dissolution of Muslim marriage act, 1939.

And if a muslim male want to take divorce, then he only has option under personal law and that is to give ‘talaq-e-hasan’ and ‘talaq-e-ahsan’. Before 2017, muslim male also had the option of ‘Talaq-e-biddat (triple talaq/instant talaq)”, but supreme court declared that unconstitutional in Shayra Bano v. Union of India (2017).

Besides above-mentioned religions, other religions also exist in India such as Christian and Parsis. The divorce Act, 1869 take care for the divorce matters of Christians and Parsi Marriage and Divorce Act, 1936 provides for the personal matters of Parsis included divorce matters.

Divorce Act, 1869- Object and Reasons

The Statement of objects and reasons of the Bill, delineates the purpose that was sought to be achieved through the enactment. Relevant part thereof, is reproduced hereunder: –

“The object of Indian Divorce Bill is to place the Matrimonial Law administered by the High Courts, in the exercise of their original jurisdiction, on the same footing as the Matrimonial Law administered by the court for Divorce and Matrimonial Causes in England. The 9th Section of the Act of Parliament for establishing High Courts of Judicature in India (24 and 25 Vic., C.104) provides that the High Courts shall exercise such Matrimonial Jurisdiction as Her Majesty by Letters Patent shall grant and direct.

Under the authority thus conferred by Parliament, the 35th Section of the Letters Patent, constituting the High Courts of Judicature, provides as follows:

“And we do further ordain that the said High Court of Judicature at Fort William in Bengal shall have jurisdiction in matters matrimonial between our subjects professing the Christian religion, and that such jurisdiction shall extend to the local limits within which the Supreme Court now has Ecclesiastical Jurisdiction. Provided always that nothing herein contained shall be held to interfere with the exercise of any Jurisdiction in matters matrimonial by any court not established by Royal Charter within the said Presidency lawfully possessed thereof.”

In the Despatch of the Secretary of State transmitting the Letters Patent the 33rd and 34th paragraphs are to the following effect:

“33. Her Majesty’s Government are desirous of placing the Christian subjects of the Crown within the Presidency in the same position under the High Court, as to matters matrimonial in general as they now are under the Supreme Court, and this they believe to be effected by Clause 35 of the Charter. But they consider it expedient that the High Court should possess, in addition, the power of decreeing divorce which the Supreme Court does not possess, in other words, that the High Court should have the same jurisdiction as the Court for Divorce and Matrimonial Causes in England, established in virtue of the Act 20 and 21 Vic., C. 85, and in regard to which further provisions were made by 22 and 23 Vic., C.61, and 23 and 24 Vic., C.144.

The Act of Parliament for establishing the High Courts, however, does not purport to give to the Crown the power of importing into the Charter all the provisions of the Divorce Court Act, and some of them, the Crown clearly could not so import, such, for instance, as those which prescribe the period of re-marriage, and those which exempt from punishment clergymen refusing to re-marry adulterers. All these are, in truth, matters for Indian legislation, and I request that you will immediately take the subject into your consideration, and introduce into your Council a Bill for conferring upon the High Court, the jurisdiction and powers of the Divorce Court in England, one of the provisions of which should be to give an appeal to the Privy Council in those cases in which the Divorce Court Act gives an appeal to the House of Lords.

34. The objects of the provision at the end of Clause 35 is to obviate any doubt that may possibly arise as to whether, by vesting the High Court with the powers of the Court for Divorce and Matrimonial Causes in England, it was intended to take away from the Courts within Divisions of the Presidency, not established by Royal Charter, any jurisdiction which they might have in matters matrimonial, as for instance in a suit for alimony between Armenians or Native Christians. With any such jurisdiction it is not intended to interfere.”

In addition to the Act of Parliament mentioned by the Secretary of State as regulating the jurisdiction of the England Divorce Court the Statute 25 and 26 Vic., Ch.81 has been passed in the year just expired (1862). The object of this statute is to render perpetual 23 and 24 Vic., Ch. 144 the duration of which had been originally limited to two years. The draft of a Bill has been prepared to give effect to the Secretary of States instructions, but some variations from the English Statutes in respect of Procedure have been adopted.

With a view to uniformity in practice in the several branches of jurisdiction, the Bill provides that the Procedure of the Code of Civil Procedure shall be followed, instead of the Rules of Her Majesty’s Court for Divorce and Matrimonial Causes in England, and it omits the provision in 20 and 21 Vic., Ch. 85 respecting the occasional trial of questions of fact by juries.”

Divorce in Christians

Provisions for Dissolution of Marriage

The Divorce Act, 1869 provided for the grounds for dissolution of marriage in Section 10 thereof. The same is extracted hereunder: –

10.Grounds for dissolution of marriage. –

(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent

(i) has committed adultery; or

(ii) has ceased to be Christian by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or

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

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

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

(vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or

(viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or

(ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or

(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.

(2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Divorce by mutual Consent

In addition to the above, consequent upon a further amendment, Section 10A was added thereto, to provide for dissolution of marriage by consent.

The instant legislation provided for grounds on which Christian husbands and wives could obtain divorce.