The Indian Divorce Act 1869 – An Overview

The Indian Divorce Act
Criminal Matters » The Indian Divorce Act 1869 – An Overview

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Divorce is an outcome not many people think of when getting married but sometimes the situation changes and the couple or one of the spouses can request a divorce. In India, all divorces are ruled by the Divorce Act, of 1869. The act itself is quite massive with specifications for different religions in India. A short overview of the act is as below.

The Indian Divorce Act 1869

The Indian Divorce Act was created and became a part of the official legal system in the year 1869. The act states the grounds on which a divorce can be granted to two married people living in India. The divorce act was designed in view of the different religious views and sentiments regarding marriage and divorce. There are also separate acts targeting one specific group of people such as the Hindu Marriage Act of 1955, Parsis by the Parsi Marriage and Divorce Act, of 1936, etc.

The Divorce Act goes on to state the different types of divorce petitions and how certain elements of divorce such as separation, alimony, and custody of the adopted child will be decided. Any property bought together when married will also be divided according to the clauses in the act. This is an extensive act with many different individual parts and regular updates. A more condensed version of it has been described below.

Also Read : The Grounds For Divorce Under Christian Law In India

Types of Divorce Petitions

There are three types of divorce and three types of grounds for divorce in India. A short overview of all three types of divorces in India.

Divorce with mutual consent: Per the name, the first type of divorce is where both parties agree together to separate from the marriage. Mutual divorce is not granted immediately upon approaching a lawyer. Section 10A of the Divorce Act, 1869 requires the couple to have been living separately for two years. Here arises confusion regarding divorce with mutual consent. Some think that after the duration of two years, there will be an automatic divorce. There is no such thing as an automatic divorce after 2 years in India. Couples who can provide proof for the separation period can then approach the courts for a mutual divorce. The couple must agree on the following matters before getting divorced.

  • Custody of children, if there are any. The custody could be shared, joint or exclusively with one parent only.
  • Division of property that also includes bank accounts held by both people. The division must not necessarily be fair and mutually agreed upon to protect the rights of women.
  • Alimony or maintenance amount. There is no limit, upper or lower, for the alimony amount.

Dissolution of marriage (Divorce with no mutual consent): Section 10 of Indian divorce act also states that the dissolution of a marriage is equal to a divorce as discussed here. As opposed to the previous form of divorce where there was mutual consent of both parties, in the dissolution of marriage, there is no mutual consent. The petition to get the marriage dissolved can be filed by either the husband or wife. To get a divorce through dissolution, there are certain conditions that must be fulfilled.

Also Read : Common Joint Property Disputes And How To Resolve Them?

Adultery: If any partner can maintain physical relations with a third person, it is ground to get the marriage dissolved. Prior to new updates to the divorce act in 2022, divorce due to adultery was a criminal offence but was decriminalized.

Mental Disorders: If either the husband or wife suffers from any sort of disorder of the mind and is mentally unsound, a divorce can be granted. There must, importantly, be proof of the said disorder and that this has led to them not fulfilling their marital duties effectively.

Desertion: If a spouse can provide sufficient proof that their partner has deserted them for no known reason, the court will grant a divorce. The said dissertation should have been done for at least two years per Hindu law but Christian law has no such minimum duration requirement.

Cruelty: If there is proof of cruelty in terms of physical and mental, the abused partner will be given a divorce.

Presumption of Death: If for a period of seven years, one of the partners has not maintained communication or contact, a dissolution of marriage case can be filed. The court requires proof that if the said spouse were to be alive, there would have been communication.

Infectious Diseases: If a partner can provide proof that their spouse has contracted an infectious disease like HIV AIDS, it is grounds to get the marriage dissolved.

Nullifying marriage: While dissolving a marriage involves getting a divorce without mutual consent, the partners will have a record of being previously married. In contrast, when the marriage is nullified, it would lead to a termination of the marriage. There will be marriage or records of it after the court grants it. In such cases, there will be alimony or sharing of property like in the previous cases. However, there must be certain conditions fulfilled before a nullified marriage can be awarded.

  • If either one of the spouses was already married at the time of the marriage.
  • If one of the spouses was not of legal age to get married and the said marriage was held without the consent of the parents of the underage spouse.
  • If the marriage took place by force.
  • If one of the spouses was mentally incompetent.
  • If the spouse of the aggrieved party was drunk or inebriated throughout the marriage.
  • If a prison sentence has been given to the spouse for any reason, the marriage will be nullified.

Separation: Judicial separation, as mentioned above, can be obtained through a court order. During the said separation, the couple will still be married but cannot re-marry other people. Judicial separation is usually granted on the grounds of cruelty or adultery or dissertation for over two years. Either partner can file for judicial separation if all conditions for it have been satisfied along with legal and formal documents.

Alimony: If one of the spouses has been economically dependent on the other for the entirety of the marriage, during divorce, there can be alimony demanded. Alimony is a maintenance amount equal to what is necessary to maintain the same standard of living. Alimony can be given to not just the spouse but also children and parents. The amount of alimony will depend on the health of the spouse, who has custody of the children, the age of the alimony recipient, and the economic status of the alimony payer.

Custody of children: The custody of children is decided by the court after considering the parent’s decision. The court will pay attention to the best interests of the child. If the divorce is contested, the situation becomes hard. In such a case, economic status, employment status parental capabilities are considered.

Settlement of property: During a marriage, any assets that are bought together and used together will be divided during a divorce. All the divorce lawyer in Delhi NCR will ensure division and settlement of property is done properly and that no rights are violated. Generally, the spouse who is doing all of the childcare is given the property.

Divorce is hard and there is a lot of information to coordinate and ensure everyone gets what they should. At Lex Solutions, there are some of the best divorce lawyer in Delhi. With years of experience in the bag, no matter the situation, divorce will be granted by the team at Lex Solutions.