Q.7Indian Divorce Act, 1869 (Muslim Law)

Indian Divorce Act, 1869 ( Muslim Law )
Introduction
The Indian Divorce Act, 1869, also known as the Divorce Act, 1869 was introduced to govern
the divorce laws for Christian couples in India. It deals with the dissolution of marriage between
a man and a woman in the Christian community. It is a codified Indian personal law. It states
that when either the husband or the wife files a petition for divorce, the court of law grants
separation in accordance with the provisions of this Act. The provisions of this Act deal with
various rights after divorce, which include grounds for dissolution of marriage, custody of the
child, alimony, distribution of property, visiting the child, and likewise. It also specifies the power
of the courts and situations that can nullify the decree.
Background of the Indian Divorce Act, 1869

The Indian Divorce Act, 1869, amends the laws that govern the divorce of people who profess
Christianity. The British had enforced this Act before independence. This Act came into effect on
1st April, 1869, and is applicable to the whole of India, though the state of Jammu and Kashmir
is excluded. In India, the Hindus, Sikhs, Buddhists, and Jains are governed by the Hindu
Marriage Act, 1955, the dissolution of Muslim marriages is governed by the Muslim Marriage
Act, 1939, the Parsis are governed by the Parsi Marriage and Divorce Act, 1936, and inter-
community by the Special Marriage Act, 1954. In the same way, parties professing Christianity
and residing in India are administered by the Indian Divorce Act, 1869.
Grounds for dissolution of marriage

According to Section 10 of the Indian Divorce Act, 1869, it encompasses various grounds for
dissolution of marriage. The wife or husband has to present a petition to the district court for a
divorce. It is also necessary to file that petition in the court under whose jurisdiction they have
formalised their marriage or in which they reside or have last resided together.
The various grounds under which a court can grant a divorce are as follows:
•If either of the parties commits adultery; or

•If either party ceases to be a Christian; or
•If either party is of unsound mind for a period of two years; or
•In case any of the party is suffering from a disease like leprosy or a venereal disease for a term
of two years; or
•If either of the parties willingly refuses to consummate the marriage; or
•If either party desserts the other for a period of two years or more; or
•In case any of the party treats another cruelly.
•In addition to the above grounds, a wife is also allowed to file a petition for divorce if the
husband is guilty of committing rape, bestiality, etc., after their marriage.
Different ways for obtaining divorce

Divorce by mutual consent of the parties
When the parties mutually agree to present a petition for divorce under Section 10A of the
Indian Divorce Act, 1869, the court will regard it as a divorce by mutual consent. To get divorced
under this heading, the parties filing the petition must have lived separately for at least two
years. Otherwise, the court will not accept the petition. The couple has to prove the following
factors, which are as follows-
They have been living separately, i.e., not as husband and wife, for a minimum of two years.
They are unable to stay with each other due to certain reasons.
They have mutually agreed to share those rights regarding custody of the children, property,
and maintenance without any conflict
Divorce that is not by mutual consent

Either of the parties can present a petition for divorce under this Act. The various circumstances
for which they can file for dissolution of marriage are as follows-
Petition filed by husband

A husband can submit a petition for divorce to the district court or the high court, pleading with
the court to dissolve their marriage as his wife has been guilty of adultery since the
solemnization of their marriage.
Petition filed by wife

A wife can submit a petition for divorce to the district court or the high court, pleading with the
court to dissolve their marriage on the following grounds-
•If her husband has professed a different religion by converting to any other religion for the
purpose of profession.
•If her husband has married another woman by following all the rituals.
•If her husband has been guilty of adultery for a continuous period since the solemnization of
their marriage.
•If he is guilty of bigamy along with adultery.

If he has married another woman along with adultery.
•If he is guilty of rape, sodomy, or bestiality.
•If he is guilty of adultery along with cruelty, as in the case where he was not guilty of adultery,
then also she would have been entitled to a divorce mensa et toro.
•If he is guilty of adultery together with desertion without any sufficient and reasonable excuse
for a term of two years or more.
Grounds on which a petition can be dismissed:

If the evidence presented by the petitioner is proved, and the court is satisfied with the
evidence, then the court will declare its judgement by stating that the marriage is dissolved. The
court will not be obligated to pronounce its judgement under the following circumstances-
•In case the petitioner has been found guilty of adultery, or
•If the court finds that the petitioner has unreasonably delayed in presenting or prosecuting such
petition, or
•If the court finds that the petitioner has treated another party with cruelty, or
•If the petitioner has willingly deserted or separated himself or herself from the other spouse
before it has been proved that the other party is guilty of adultery and without a proper and
reasonable excuse, or
•If the petitioner willfully neglected the other party or did any misconduct towards the other party,
which led to adultery by the other party
Custody of children
When a divorce takes place without the mutual consent of the parties, the court will grant
custody of the child after examining the capabilities of the father or mother as a parent to the
child. In most of the families, where the mother is a housewife, custody of the child is given to
her, and the father is directed to provide financial support and the occasional visits.
Alimony or maintenance
The court, while deciding the alimony that needs to be paid, takes into consideration the earning
potential of the husband. The court sees whether the husband has the capacity to regenerate
his fortune and his duties and liabilities. If the wife is economically dependent, then the property
is given to her. The alimony is given to the spouse, dependent children and aging parents
Case laws : In the case of Major Frank Ralston Samuel Raj v. Kezia Padmini Swarna Pandian
(2016), the husband presented an appeal against the petitioner, his wife, who had filed for
restitution of conjugal rights. The Madras High Court observed that the parties had been living
apart for more than fifteen years, so there was no emotional attachment between them. The
wife had refused to consummate the marriage. The court held that a marriage can be dissolved
under Section 10 of the Indian Divorce Act, 1869. If either party, after the solemnization of
marriage, does not cooperate to consummate the marriage and therefore the marriage has not
been consummated, the other is entitled to divorce.
In the case of Tomy Joseph v. Smitha Tomy (2018), the couple, by their mutual consent, filed a
divorce petition in the family court. The court dismissed the petition on the ground that there is
no provision to waive the six month period to file for dissolution of marriage under Section 10A
of the Indian Divorce Act. The couple appealed to the Kerala High Court where the court held
that divorce by mutual consent is secular in nature. There should not be any kind of
discrimination on the basis of religion. The High Court waived the time for ‘cooling off’ for
dissolution of marriage for a Christian couple
Conclusion
The Indian Divorce Act, 1869, was considered outdated and harsh. So it was repealed as it
discriminates on the basis of gender as well as religion. It was ultra vires to the Constitution of
India, as it is against the right to equality. The Indian Divorce (Amendment) Act, 2001, was
introduced to remove all this discrimination and provide a big step towards the goal of
uniformity. It aims to provide a uniform divorce law for the whole country. This article highlights
the historical background of the Act and how it applies to Christian couples in India. However, it
should be noted that the Indian Divorce Act, 1869, has been repealed and replaced by the
Personal Laws (Amendment) Act, 2019, which came into effect on 1st August, 2019. Therefore,
the Indian Divorce Act, 1869, is no longer applicable for Christian couples seeking divorce in
India

Q.7Indian Divorce Act, 1869 (Muslim Law)

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Q.7Indian Divorce Act, 1869 (Muslim Law)

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Indian Divorce Act, 1869 ( Muslim Law )

Background of the Indian Divorce Act, 1869

Grounds for dissolution of marriage

•If either of the parties commits adultery; or

Different ways for obtaining divorce

Divorce that is not by mutual consent

Petition filed by husband

Petition filed by wife

•If he is guilty of bigamy along with adultery.

Grounds on which a petition can be dismissed:

•In case the petitioner has been found guilty of adultery, or

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