The Indian Divorce Act, 1869

What it does

The Act is the divorce law for Christians in India. It provides for the dissolution of a marriage, for a declaration that a marriage is null, for judicial separation and for the restitution of conjugal rights, and it sets the grounds on which each may be granted. It also deals with the property and maintenance questions that follow, including alimony while the case is pending and permanent alimony when it ends, and with the custody of children.

The Act is limited in scope. It applies where the petitioner or the respondent professes the Christian religion, and the court that hears the petition is the court that the Act and the later family courts law designate. A marriage that was celebrated under the Indian Christian Marriage Act, 1872 or under another form is within the Act if the religion requirement is met.

The grounds are listed in the Act. A divorce may be sought on the grounds that include adultery, cruelty, desertion for a stated period, conversion to another religion, unsoundness of mind and certain other conditions. The petitioner must prove the ground, and the court looks at the facts of the marriage and not only at the wishes of the parties.

Who it binds

Christians, and in the case of a mixed marriage, the couple where either party is Christian. The Act does not apply to Hindus, Muslims or Parsis, who have their own laws, and it does not apply to a marriage under the Special Marriage Act, 1954, which has its own divorce provisions. A person's personal law is therefore the first fact to establish, because it decides which statute and which court.

What has changed, and when

The Act was amended substantially in 2001. The amendment removed some of the provisions that treated men and women unequally in the grounds of divorce, and it introduced divorce by mutual consent, subject to a period of separation before the petition can be presented. Before the amendment, a couple who both wanted a divorce had to prove a fault ground, and the introduction of mutual consent changed the practical course of most cases.

An older decision under the unamended Act may rest on a ground or a procedure that no longer reads the same way, and a judgment is read with the date of the amendment in mind.

What turns on it in practice

The decision to proceed by mutual consent or on a fault ground decides how long and how hostile the case is. Mutual consent requires an agreement on the terms (maintenance, custody, division of property) and a petition that both sign. A fault ground requires evidence, and the evidence is public. The matrimonial and child custody note on this site names the Act for that reason, alongside the other personal laws, as a set of statutes whose procedures differ although the problems they deal with are alike.

The second point is that the welfare of the child is a separate question from the divorce. A decree does not settle custody, and the court decides it on the child's welfare and not on the fault of either parent. A parent who lives abroad, or who plans to take a child abroad, raises questions of jurisdiction and enforcement that are decided on the facts.

The third is maintenance and alimony. The Act gives the court power to order them, and a spouse can also claim maintenance under the general criminal procedure law. The practitioner has to choose the forum and the claim with the consequences of each in view.