THE DIVORCE ACT, 1869

Initially this Act was known as ‘Indian Divorce Act’ The word ‘Indian’ was omitted by Act
51 of 2001, with effect from 3rd October, 2001.

Grounds for Dissolution of Marriage

Section 10 – Following are the grounds of dissolution of marriage by decree of divorce. It is pertinent
to note that prior to amendment of 2001, it was next to impossible to obtain divorce. There was no
single ground on which petition could be filed. Each ground needed to be coupled with another
ground. For example petition for dissolution of marriage adultery should be coupled with cruelty.
After the amendment of section 10 in the year 2001, now matrimonial relief of divorce is somewhat at
par with other personal laws.

1. Adultery – Respondent has committed adultery.

2. Conversion - Respondent has ceased to be Christian by conversion to another religion.
3. Insanity - Respondent has been incurably of unsound mind for a continuous period of not less
than two years immediately preceding the presentation of the petition.
i. The degree of insanity should be incurable.
ii. For continuous period of two years, not intermittently, immediately before filing petition.
4. Venereal Disease - Respondent has been suffering from venereal disease in a communicable
form for a period of not less than two years immediately preceding the presentation of the
petition.
Venereal disease must be in communicable form (transmission) for at least for two years before filing
petition.
5. Presumption of Death - Respondent 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.
This is known as resumption of death which is identical to section 108 of Indian Evidence Act.
6. Respondent has wilfully refused to consummate the marriage and the marriage has not
therefore been consummated.
7. Respondent 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.
This ground of divorce under the present Act differs from the other personal laws like Hindu Marriage
Act, Parsi Marriage & Divorce Act. No restitution of conjugal rights by the respondent for a period of
two years or more after passing the decree of restitution right, only petitioner can avail this as ground
for divorce. In Hindu Marriage Act as well Parsi Marriage & Divorce Act no resumption of
cohabitation after decree of judicial separation or no restitution of conjugal rights after decree of
restitution of conjugal rights for a period of one year or more, either party (petitioner or respondent)
can file petition for divorce.
8. Desertion - Respondent has deserted the petitioner for at least two years immediately
preceding the presentation of the petition.
9. Cruelty – Respondent 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.
10. Rape, sodomy or bestiality - 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.
On the 9 grounds herein above either party to the marriage can file petition seeking divorce form other
party. However, last ground of unnatural sexual offences of rape, sodomy or bestiality only wife can
file petition if husband is found guilty of the said offences.

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Section 10A - Dissolution of marriage by mutual consent – Identical to Parsi Marriage & Divorce Act
except separation period before filing petition is of two years in the present Act, unlike one year in
PM&D Act.
NOTE - All the grounds of divorce under section 10 of Divorce are identical to Section 32 of
Parsi Marriage & Divorce Ac. Please refer to that.

Adulterer or Adulteress to be Co-respondent

Section 11 – According to the present section if the petition is filed for dissolution of marriage by
either party to the marriage on the ground of adultery, the petitioner is required to make the alleged
adulterer or adulteress a co-respondent. However under the following circumstances the petitioner is
dispensed with by the court from doing so:
1. Wife being respondent she is leading the life of a prostitute.
2. Husband being respondent he is leading an immoral life.
3. The name of the alleged adulterer or adulteress is unknown to the petitioner although the
petitioner has made due efforts to discover it.
4. If that the alleged adulterer or adulteress is dead.

Note – Section 12, 13 & 14 of the Divorce Act provide BARS to MATRIMONIAL RELIEFS of
collusion, connivance, accessary, condonation etc. This topic is already dealt with in Section 35
in detail.

Section 15 – If the petition is filed by one party to the marriage and another party who happens to be
the respondent, opposes petition on the ground of adultery, cruelty or desertion of the
petitioner, the court is authorised to give the same relief as if the petition was filed by the respondent
and the respondent will be competent to produce evidence of such alleged adultery, cruelty or
desertion.
Thus, the respondent’s defence of petition on the ground of adultery, cruelty or desertion is sufficient
to get relief in the same manner and the presumption is as if the petition was filed by him/her,
contrary to the fact.

Petition for Decree of Nullity

Section 18 - Any part to the marriage can present a petition to the District Court praying that his or
her marriage may be declared null and void on any of the ground laid down under section 19.

Grounds of Nullity of Marriage

Section 19 –
1. Impotency - that the respondent was impotent at the time of the marriage and at the time of
the institution of the suit.
Inability to consummate marriage owing to impotency of the respondent renders the marriage
voidable and can be annulled by decree of nullity at the instance of other party. Impotency could be
physical or mental. Malformation or defect in the organ making consummation impossible is the
physical impotency. Psychological repugnant towards sexual intercourse is mental impotency. The
ground on nullity is that the respondents was impotent at the time of marriage and continue to be so
till the date of institution of the suit. Therefore, one act of consummation this ground is lost.
2. Prohibited Degree of Relation - that the parties are within the prohibited degree of
consanguinity (whether natural or legal) or affinity.
Most of the personal laws prohibit marriage between the parties related to each other within
prohibited degree of relation on account of consanguinity (relation by blood) affinity (relation by
marriage). Under Hindu Marriage Act, Parsi Marriage & Divorce Act such marriages are void, even
under Muslim Law the marriage is Baltil (Void).
3. Pre-marriage Insanity - that either party was a lunatic or idiot at the time of the marriage.
Pre marriage insanity i.e. the respondent was lunatic or idiot at the time of marriage is the ground of
nullity of marriage, whereas, post marriage insanity is the ground of dissolution of marriage. This
section does not require that the petitioner was not aware of the fact of insanity of the respondent nor

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does lay down any limitation period within which the petition is to be filed unlike Parsi Marriage &
Divorce Act.
4. Bigamy - 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.
In India, Hindu, Parsi and Christian personal laws follow strict monogamy, and Muslim follow
restricted polygamy. Section 5 of Hindu Marriage Act dealing with conditions of a valid marriage,
states that at the time of marriage neither party to the marriage should have spouse living at the time
of marriage. Same is the position in Parsi and Christian marriage. Therefore, if the former husband or
wife of either party was living and such marriage was in force, subsequent marriage is void and can be
annulled by decree of nullity.

Children of Annulled Marriage

Section 21 - Present section confers status of legitimacy and provides social security to the children
born out of wedlock which is annulled by decree of nullity subject to the following conditions:
1. Marriage is annulled on the ground of bigamy and the subsequent marriage was contracted in
good faith and with the full belief of the parties that the former that the former husband or
wife was dead.
2. If the marriage is annulled on the ground of pre-marriage insanity children begotten before
the decree is made.
Children born out of such annulled marriage will be entitled to succeed to the estate of the parent in
the same manner as legitimate children of the parents who at the time of the marriage were competent
to contract.

Note -Petition for Restitution of Conjugal Rights under section 32, Alimony Pendente Lite, under
section 36 & Power to order Permanent Alimony under section 37 are identical to the relevant
provisions of Parsi Marriage & Divorce Act, except under Divorce Act only wife can claim alimony
pendent lite and permanent alimony and maintenance, whereas, under Parsi Marriage & Divorce Act
either party husband or wife can claim maintenance.

Liberty to Parties to Marry Again

Section 57 - After a marriage has been dissolved by decree of divorce or annulled by decree of
nullity, thereafter parties can remarry:
1. Time for appeal has expired and no appeal has been preferred.
2. Appeal has been presented but has been dismissed and the decree or dismissal has become
final.
Therefore, once the marriage has been dissolved or annulled, the party will have to wait before
remarrying till the expiry of the limitation period of appeal without filing any appeal or if appeal was
filed but has been dismissed finally.

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