Divorce Act, 1869 is relating to the divorce of persons professing the Christian religion, and to confer upon certain Court jurisdiction in matters matrimonial. There are three modes described for seeking Divorce:
Dissolution of Marriage
Nullity of Marriage
Dissolution of Marriage (Section 10 of the Divorce Act, 1869)
When husband may petition for dissolution
Any husband may present a petition to the Court of Civil Judge, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.
When wife may petition for dissolution
Any female may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband:
Has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;
Or has been guilty of incestuous adultery;
Or of bigamy with adultery;
Or of marriage with another woman with adultery;
Or rape, sodomy or bestiality;
Or of adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et toro; and
Or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Contents of Petition
Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.
Adulterer to be co-respondent
Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one the following grounds, to be allowed by the Court:
That the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed;
That the name of the alleged adulterer is unknown to the petitioner although he has made due efforts to discover it; and
That the alleged adulterer is dead.
In case the Court is satisfied on the evidence that the case of the petitioner has been proved and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of.
Or that the petition is presented or prosecuted in collusion with either of the respondents.
The Court shall pronounce a decree declaring such marriage to be dissolved.
Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery.
Or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition, from the other party before the adultery complained of and without reasonable excuse.
Or of such cruelty towards the other party to the marriage.
Or of having deserted or willfully separated himself or from the other party before the adultery complained of and without reasonable excuse.
Or of such willful neglect or misconduct of or towards the other party has conduced to the adultery.
Condonation: No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.
Nullity of Marriage (Section 18 Of the Divorce Deed, 1869)
According to the Section 18 of the Divorce Act, 1869, any husband or wife may present a petition to the Court of Civil Judge, praying that his or her marriage may be declared null and void.
Grounds of Decree
Such decree may be made on any of the following grounds:
That the respondent was impotent at the time of the marriage and at the time of institution of the suit;
That the parties are within the prohibited decrees of consanguinity (whether natural or legal) or affinity;
That either party 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.
According to Section 22 of the Divorce Act, 1869, No decree shall hereafter be made for a divorce a mensa er toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of as divorce mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.
Application for judicial separation on any one of the grounds aforesaid may be made by either husband or wife by petition to the Court of Civil Judge; and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.
In every case of a judicial separation under this Act, the wife shall, from the date whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire or which may come to or devolve upon her.
A decree of judicial separation is a court order similar to divorce, under which the couple remains legally married but their normal marital obligations cease and they no longer have to go on living together.
In judicial separation cases, the court has the same range of powers as in divorce cases to issue orders on dividing the matrimonial property and providing for the custody, support and maintenance of children. A judicial separation also negates any provision for the spouse in a will, unless a new will is made which reinstates them as a beneficiary. However, unlike a divorced spouse, one who is judicially separated may still be eligible for benefits under a pension scheme on the death of their partner.
The application procedure for a judicial separation starts with one of the parties presenting a “Judicial Separation Petition” to the Court. A divorce petition can be used for this purpose, as long as it is amended by deleting the references to the marriage having “broken down” and the intention to dissolve the marriage. The Courts also require the completion of a “Statement of Arrangements” form, including similar information to that needed for a divorce, and the original Marriage Certificate, or a certified copy of this. The court fees payable are at a similar level to those for a divorce petition.
The grounds for judicial separation are much the same as for divorce, except that there is no requirement to prove that the marriage has broken down irretrievably, and the couple does not have to have been married for any minimum length of time. As with divorce petitions, grounds for judicial separation are adultery, unreasonable behaviour, desertion for at least two years, separation with consent for two years or separation without consent for five years. There is also the additional ground for judicial separation of ‘being habitually drunk’. Unlike in the case of divorce, only one decree is issued, once the court is satisfied that the requirements for judicial separation have been met.
The main circumstances under which judicial separation takes place are when one or both of the parties are opposed to divorce, perhaps for religious reasons; when the couple have been married for less than a year, during which there is an absolute ban on divorce; or when it may be difficult to provide the evidence of irretrievable breakdown of the marriage which is necessary for divorce.
A couple who have obtained a judicial separation can still apply for a divorce later on, after they have been legally married for at least three years. If they do so, the information they originally submitted in the application for judicial separation can be used again by the courts in considering their application for divorce.
If a couple decides that they wish to become full marriage partners again, they can apply for their judicial separation to be rescinded by the courts.