FAMILY LAW

ASSIGNMENT ON:

Family courts act

And
Indian divorce act

SUBMITTED BY: SHIMRAN ZAMAN

ROLL NO: 54
B.A.LLB 3rd YEAR, SELF FINANCE
SUBMITTED TO: DR. KAHKASHAN Y. DANYAL
 INDEX

⮚ INTRODUCTION....................................................................................1
⮚ FAMILY COURTS: ORIGIN AND DEVELOPMENT........................1
O FAMILY LAW...............................................................................1
O FAMILY LAW COURTS..............................................................2
O CONCEPT OF FAMILY COURTS..............................................3
⮚ FAMILY COURT ACT OF 1984 ............................................................4
O SALIENT FEATURES OF THE ACT .........................................5
O FUNCTIONS..................................................................................6
O PROCEDURE................................................................................7
⮚ INDIAN DIVORCE
ACT.........................................................................8
O BACKGROUND.............................................................................8
O DISSOLUTION OF MARRIAGE UNDER THE
ACT...............9
● ADULTERY
● INSANITY
● RESTITUTION OF CONJUGAL RIGHTS
● CRUELTY
● DESERTION
● RAPE, SODOMY AND BESTILITY
⮚ CONCLUSION.......................................................................................16
⮚ BIBLIOGRAPHY...................................................................................18
 INTRODUCTION
The word ‘Family’ is derived from the Latin word ‘Famulus’ which means a servant. In
Roman law the word denoted a group of producers and slaves and other servants as well as
members connected by common descent or marriage.1

India is proud of its ancient heritage of a united and stable family system. A gradual trend of
change from extended families to nuclear families, and the fast changing trends in the social,
cultural, economic and industrial scenario is the growing challenges to the institution of
family in India. India maintains a common legal system inherited from the colonial era, and
various legislations by the British are still in effect in modified forms. In family disputes,
religion and personal laws are largely interlinked

Both 59th Law Commission Report (1974) and the Committee on the Status of Women
(1975), was of the view that family disputes should be dealt with differently than ordinary
civil proceedings. Law Commission report also suggested that there should be the
establishment of family courts by States and selection of Judicial Officers based on
experience to benefit the society. In 1976, the Code of Civil Procedure was amended to adopt
a special procedure for disputes concerning the family. But the amended law was unable to
serve the purpose as many courts still treated disputes concerning family alike ordinary civil
proceedings. Several NGOs, women’s associations and individuals also pressurized
government to provide the special courts for speedy settlement in disputes related to the
family. Therefore, in 1984 the Family Courts Act was passed.

FAMILY COURTS: ORIGIN AND DEVELOPMENT

FAMILY LAW
Family law is a law concerned with the formation or dissolution of family relationship and
that of governing the rights and obligations, both personal and proprietary, of members of the
family, that flow from these relationships.2 By controlling the institution of marriage,
adoption, guardianship and property rights of members, it determines the very course of

1
Sanjay Bhattacharya, Social Work: Interventions and Management, Deep and Deep Publications, New Delhi,
2008, p.3.
2
Judith Areen, Cases and Materials on Family Law, 3rded, Foundation Press, Westbury, 1992.p. 5

5 | Page
human life. Love, harmony and affection are the foundation of family life, finding the perfect
solution to the family problems in the legal instrument is a difficult task. ‘State cannot
compel a husband to love his wife or a wife to her husband or a child to its parents.’3 To the
thickest of sentiments and emotions, traditions and strong mind sets, it can penetrate only
minimally. But it can remedy exploitations on injustices in intra-familial relations. In spite of
being a law of imperfect obligation, family law's significance is in keeping the family
structure intact, and in keeping fair family relationships, and it is great from the perspective
of social utility.

The system of Hindu Law, Mohammedan Law, Christian Law, Parsi Law and varieties of
Tribal Laws on family customs in India have built up profound diversity in family law or
personal law. Each personal law has sub schools within. The state-enacted laws governing
inter-religious marriages and succession contributed to the factor of multiplicity.4 Changes in
the social philosophy that has emphasized protection of human rights of individuals,
profound social transformation in the economic status of the family, modern scientific
development and the growing claims of the modern welfare state have cast their own impact
upon the content of family law.

FAMILY LAW COURTS

The establishment of Family Courts is described in section 3 of the Family Courts Act, 1984.
“Family Court” means a family court established under section 3.5 The family courts are
specialised courts, which were established with the objective of maintaining the welfare of
the family by utilizing a multidisciplinary approach to resolve family problems within the
framework of law.6 The family courts aims at securing the legal rights of the individuals on
the one hand, and undertake the role of a guide, a helper and a counsellor on the other, to
enable families to cope with their problems, and establish family harmony, following the
principle of dignity of the individual and equality of the status of both the sexes. Family

3
P. Eshwara Bhat, Law and Social Transformation, Isted, Eastern Book Company, Lucknow, 2009, p. 701.
4
P. Ishwara Bhat, Law & Social Transformation, Isted, Eastern Book Company, Lucknow, 2009, p. 702.
5
Section 2 (d) of the Family Courts Act, 1984, establishment of family court is described in section 3 of the
Family Courts Act, 1984.
6
Ratna Varma (Ed.,) Family Courts in India: An Appraisal of Strength and Limitation, Inter India Publications,
New Delhi, 1997, p. 14.

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courts have been established to provide facilities of a legal and non-legal nature, so that all
the issues can be resolved in one forum.7

CONCEPT OF FAMILY COURTS

Marriage is a social institution through which a man and a woman come closer to each other
and start living together. Both the spouses act as complements to each other’s dependency
needs. Harmonious marital relationships between the spouses are required not only for the
welfare of the family, but also for the society at large. However unsatisfying and stressful
marital relations lead to family problems. Litigation in regard to any matter concerning
family, whether divorce, maintenance, custody, education and financial support for children
or a trial of juvenile offenders should not be viewed in terms of failure or success of legal
actions, but it is treated as a social therapeutic problem needing a solution.8 In resolving these
family-conflicts, human consideration should be given prior importance. For that, the
traditional adversarial procedure has to be modified and replaced by an informal procedure,
which is designed to help people in trouble, to reconcile and resolve their differences, and
where necessary, to provide assistance. It is realized that adjudication of family is entirely a
different matter, and a different culture. It has a different jurisprudence.9

The court adjudicating family disputes should function in a manner that it may tend to
conserve and not disrupt the family life that it should be helpful to individual parties and their
children, and also that it is preservative rather than punishment to family and marriage. It is,
therefore, accepted that the adversary system promotes ritualistic and unrealistic response to
family problems. The fact is that the adversarial process precludes reconciliation and
conciliation of inter-spousal and inter-parental conflicts.10In this system consideration is
given to the contentions and assertions of the parties and evidences led by them to prove or
disprove their assertions and contentions.

The court engaged in family problems requires a less formal and more active investigations
and inquisitorial procedure. In other words, it is not a litigation, in which parties and their

7
Gillian Douglas, An Introduction to Family Law, Oxford University Press, New York, 2001, p. 20.
8
Paras Diwan, Law of Marriage & Divorce, 4thed, Universal Law Publishing Co. Pvt. Ltd, Delhi, 2002, p.821.
9
Ibid.
10
Ibid.

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counsel are engaged in winning or defeating a legal action, but an inquisition in which
parties, social workers, lawyers, welfare officers, and councillors are engaged in finding out a
solution to family problems. Providing punishment for the wrong-doer and reward for the
wronged is what legal systems usually do, but the system followed in the family court is
inquisitional in character and conciliatory in final disposal.11 Indeed the family courts provide
some human services to the family in trouble.

FAMILY COURT ACT OF 1984

In India, the Family Courts Act was enacted on 14 September 1984 to provide for the family
courts with a view to promoting conciliation in and secure speedy settlement of disputes
relating to marriage and family affairs. According to Section 2 (d) of the Family Courts Act,
“Family Court” means a family court established under section 3. It describes the
establishment of Family Courts and says that the State Government after consultation with
the High Court and by notification shall establish a Family Court for every area of the state
consisting of a city or town whose population exceeds ten lakhs and for other areas in the
state as it may deem necessary.

Family courts are a specialized type of courts entrusted with the disposal of cases concerning
disputes relating to the family and to decide matters to make orders in relation to family law.
However, Family courts hear all cases that relate to family and domestic relationships. The
matters which are dealt within the family court in India are matrimonial relief, which includes
nullity of marriage, judicial separation, divorce, restitution of conjugal rights, declaration as
to the validity of marriage and matrimonial status of the person, property of the spouses or
any of them and a declaration as to the legitimacy of any person, guardianship of a person or
custody of any minor, maintenance including the proceeding under the Cr. P.C.12

In particular, the court deals with litigation concerning marriage and divorce, maintenance,
guardianship and the property of the spouses. The family court's emphasis is put on settling
the disputes by mediation and conciliation. This ensures that the matter is solved by an
agreement between both the parties and reduces the chances of any further conflict. The aim
is to give priority to a mutual agreement over the usual process of adjudication. In short, the

11
N.R. Madhava Menon, David Annoussamy, Judicial Education and Training: A Primer, S.C. Sarkar & Son
Pvt. Ltd, 2000
12
P.D. Mathew & P.M. Bakshi, Family Courts, Indian Social Institute, New Delhi, 2006,p.7

8 | Page
aim of these courts is to form a congenial atmosphere where family disputes are resolved
amicably. The cases are kept away from the trappings of a formal legal system.

The complex nature of the family disputes requires speedy conciliation with speedy, simple
and low cost procedures. The most unique aspect regarding the proceedings before the family
courts are that they are first referred to conciliation and only when the conciliation
proceedings fail to resolve the issue successfully, the matter is taken up for trial by the Court.
The Conciliators are professionals who are appointed by the Court. Once a final order is
passed, the aggrieved party has an option of filing an appeal before the High Court. Such
appeal is to be heard by a bench consisting of two judges.

SALIENT FEATURES OF THE ACT

The title of The Family Courts Act, 1984 reveals its main purpose and scope in the family
disputes. It indicates the speedy settlement of family disputes relating to marriage and other
matrimonial affairs and the need to the establishment of Family Courts in different parts of
the nation.13 The purpose of this Act is to resolve the family disputes and emphasises on the
conciliation to family disputes. Though the Act itself does not contain any specific provision
which may ensure speedy settlement of matrimonial disputes, it is perhaps assumed that the
setting up of family courts itself will promote speedy settlement of matrimonial cases. The
success of the family court therefore depends upon the type of personnel, namely judicial and
non-judicial, staff associated with such courts.14

Under this Act, the family courts have been given exclusive jurisdiction to deal with matters
relating to matrimonial disputes, including the disputes relating to the property of the
spouses, the legitimacy of any person, guardianship or the custody of minor and maintenance
under the Criminal Procedure Code. The preamble also suggests that the family courts should
endeavour either by settlement or by providing a scope to effect reconciliation between the
couple. In this pursuit family courts can secure the services of medical, social welfare
agencies and their experts to participate in the proceedings to settle matrimonial disputes.15
Since this enactment is made in the public interest, for the expeditious settlement of family

13
K. Panduranga Rao, Commentary on the Family Courts Act, 1984, Gogia Law Agency, Hyderabad, 2010, p.3.
14
Ratna Varma (Ed), Family Courts in India: An Appraisal of Strength and Limitation, InterIndia Publications,
New Delhi, 1997, p. 15.
15
K. Panduranga Rao, Commentary on The Family Courts Act, 1984, Gogia Law Agency, Hyderabad, 2010,
p.3.

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disputes, the procedure for conducting cases in the family court has been simplified.
Application of Indian Evidence Act is not followed in its strict sense and the proceedings are
conducted in an informal way to arrive at speedy settlement.16 As a measure of simplification,
procedure engaging legal practitioners for conducting cases of the parties on their behalf is
restricted in the Act. To minimise the time in litigation, the Act provides for only one appeal
to the Division Bench of High Court of the state against the order of the Family Court.

The Act was challenged in various High Courts on constitutional validity. The Division
Bench of Bombay High Court while disposing of a batch of writ petitions challenging the
views of the Act, held that the Act is not illegal, discriminatory or violative of Fundamental
Rights envisaged in the Constitution of India17 and the procedure prescribed under the Act
does not suffer from arbitrariness at all. It was also held that the family courts have been
established in many metropolitan cities of various states to achieve the aims and objectives of
the Act.18So the concept of Family courts implies an integrated, broad based service to
families in trouble.

The acts covered under the Family courts are:

1. Hindu Marriage Act, 1955

2. Special Marriage Act, 1954
3. Hindu Adoption and Maintenance Act, 1956
4. Parsi Marriage and Divorce Act, 1936
5. Indian Divorce Act, 1869
6. Christian Marriage Act, 1972
7. Dissolution of Muslim Marriage Act, 1939
8. Hindu Minority and Guardianship Act, 1956
9. Criminal Procedure Code, 1973, Sec 125, 126, 127 and 128
10. Guardians and Wards Act, 1890

FUNCTIONS

16
Ibid.
17
Latapimple v. Union of India, AIR. 1993, Bom. 255.
18
Ibid.

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The Family Courts are free to evolve their own rules of procedure, and once a Family Court
does so, the rules so framed override the rules of procedure contemplated under the Code of
Civil Procedure. In fact, the Code of Civil Procedure was amended in order to fulfil the
purpose behind setting up of the Family Courts. Special emphasis is put on settling the
disputes by mediation and conciliation. This ensures that the matter is solved by an
agreement between both the parties and reduces the chances of any further conflict. The aim
is to give priority to mutual agreement over the usual process of adjudication. In short, the
aim of these courts is to form a congenial atmosphere where family disputes are resolved
amicably. The cases are kept away from the trappings of a formal legal system.

PROCEDURE

The concept of family court essentially implies that we should do away with the traditional
adversial procedure. This means that different rules of procedure are to be devised. Thus, the
rules of procedure should be worded simply and should indicate the whole range of
procedures from the commencement of an action to its conclusion, including means to
enforce judgments and orders; procedure should be flexible so that diverse, at times, complex
problems of familial conflict are covered ; the standard forms to meet all situations should be
drafted; pleadings should stay away from the traditional adversary or fault oriented approach,
pre-trial processes should be laid down, designed to provide dignified means for parties to
reconcile their differences and to reach amicable settlements without the need of trial; free
advice should be made available as to rights of parties as well as their responsibilities and
obligations and where children are involved, steps for immediate protection of their interest
and rights should be taken; and issues should be determined without any prejudicial delay.
The language, conduct, documents and legal representation should be simple without any
technicalities. The pre-trial documentation of the pleadings should be such that issues
between the parties are clearly defined, this will help in avoiding frivolous litigation,
encourage pre-trial debate and settlement.

Since one of the main objectives of the family court system is to encourage and enable parties
to go into a process of reconciliation, failing which, of conciliation, the family court judge

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should be able to pass consent orders if parties have been able to come to some settlement,
without any formality of formal hearing or trial of issues.

The Family Court Act, it seems opts for a less formal procedure. Although Section 10 makes
the procedure laid down under the Civil Procedure Code applicable to the family court, it is
laid down that the family court has power to evolve its own rules of procedure which will
override the rules of procedure laid down in the Civil Procedure Code and the Criminal
Procedure Code whenever made applicable. Sections 14, 15 and 16 of the Act provide for the
informality of the procedure. Thus, any document, statement, information relevant for the
trial will be admissible in the family court even though the Indian Evidence Act makes such
documents, etc. inadmissible. The family court judge need not record the full evidence as is
done in adversial system; he may just prepare a memorandum of substance of evidence. All
formal evidence will be tendered by affidavit, though whenever necessary, a deponent may be
orally examined. Similarly, the judge need not render a detailed judgement, though it should
contain a concise statement of the case, the points for determination, the decision and reasons
for the decision.19

INDIAN DIVORCE ACT, 1869

In India, marriage is a necessity for establishing a healthy social life. A man and women is
believed to be incomplete without one another. A man cannot have a material existence until
he has a wife. A man is only half of himself and he becomes complete only after marriage.
From time immemorial, the question regarding the nature of marriage has come across
people’s mind. It has been accepted that marriage is a ‘sacrament’, that is, a holy tie between
a man and a woman. Marriage is an indissoluble union of flesh with flesh, bones to bones and
is to be continued even after death, in the next world. The object of marriage is ‘sublime’.

Divorce is the legal dissolution of the marital union between a man and a woman. In India,
divorce is granted by the court of law after receiving a petition from either husband or wife.
Divorce is followed by granting alimony, child custody, child visitation, distribution of
property, distribution of debts etc. Though the jurisdiction of divorce changes varies yet it can

19
Paras Diwan, Modern Hindu Law, 23rd Ed, Allahabad Law Agency, Haryana, 2018, p.234

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be classified as either no-fault divorce (mutual divorce) or fault divorce. In some cases the
fault of the spouse may not be needed to be proved.

The concept of divorce must not be confused with the concept of judicial separation. Judicial
separation is the legal separation between the husband and the wife, granted by the court on
petition from either the husband or the wife or both. In judicial separation the marital tie
between the husband and wife continues to exist and neither of them enjoys the freedom to be
re-married.

Divorce must not also be confused with the concept with annulment of marriage. Annulment
of marriage renders the marriage null and void from the first instance. The court declares the
marriage to be null and void and the husband and wife should treat the marriage as if it never
happened. The concept divorce is different from the other two measures of separation. It has
a stronger legal binding and makes the husband wife more responsible.

BACKGROUND

The act originally called the Indian Divorce Act was framed to cover all the Christians
residing in India but excluding the princely states and the settlements occupied by Portugal
and France. The act was mainly built upon the Matrimonial causes Act, 1857 which was
applied in England. The Supreme Court has said that the principles and rules established by
the House of Lords shall be applicable by the Indian courts in cases governed by the Divorce
Act.

Although the court expressed its displeasure by saying that incorporation of a statute cannot
go this far. Even the Kerala High Court had to deal with issues regarding the application of
English principles in deciding Indian cases. This was followed by the amendment of the act
in 2001 where sec.7 was deleted which had expressly stated that principles of English courts
ought to be applied but there were no alternative reference to principles mentioned which
shall be applicable.

There were no significant changes since the act was framed and hence the Indian law on
Christian divorce had become one and the same as the one followed in England. The law

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commission of India had recommended some changes which was necessary to meet present
requirements such as amendment to sec.10 of the act so that there are no discrimination based
on gender for the grounds for divorce and also to simplify the procedures for divorce.

The Indian Divorce Act, 1869 is based on the Matrimonial Causes Act, 1857 and lays down
the same grounds of divorce. At the time when the statute was passed, it applied only to
Christian marriages. The Indian Divorce Act was extended to marriages performed under the
Special Marriage Act 1872. This act was repealed by the Special Marriage Act, 1954. The
Special Marriage Act was passed in 1954 and the Hindu Marriage Act, 1955.20 Some States
introduced divorce by legislation.

DISSOLUTION OF MARRIAGE UNDER THE INDIAN DIVORCE ACT

The following are the grounds of divorce mentioned under the Indian Divorce Act, 1869. 21

1. Adultery
2. Conversion to another religion
3. One of the couples suffering from an unsound mind, leprosy or communicable
venereal disease for at least two years before the filing of the divorce.
4. Not been seen or heard alive for a period of seven or more years.
5. Failure in observing the restitution of conjugal rights for at least two years.
6. Deserted the petitioner for at least two years immediately preceding the
presentation of the petition.
7. Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and
life.
8. Wife can file a divorce based on the grounds of rape, sodomy and bestiality.

ADULTERY

Adultery may be defined as the act of a married person or persons having consensual sexual
intercourse between a married person and a person of the opposite sex who is not the other

20
Paras Diwan, Modern Hindu Law, 23rd edition, Allahabad Law Agency, Haryana, 2018.
21
Section 10.

14 | Page
spouse during the subsistence of marriage22. Personal laws all around the world condemn
adultery and it is considered as a ground for divorce or separation. Even the Hindu Shastric
laws which made no provisions for divorce, condemned adultery in unequivocal terms. Under
the present Indian personal laws, adultery is laid down as one of the grounds for divorce or
judicial separation.

The essential ingredients in an offence of adultery are that:

1. There must be a valid marriage subsisting.

2. Wife should have been a consenting party.
3. Should not be under the influence of liquor or unconsciousness.
4. There should be an act of sexual intercourse outside the marriage, and
5. That such intercourse should be voluntary.

A single act of adultery is enough to give a ground of divorce or judicial separation23 and
since no direct proof is always available therefore circumstantial proof is enough.

Section 10(1)(i) of The Divorce Act of 1869 (as amended in 2001) reads, “Any marriage
solemnized, whether before or after the commencement* of the Indian Divorce (Amendment)
Act, 2001, may, on a petition presented to the District Court either by the husband or the
wife, be dissolved on the ground that since the solemnization of the marriage, the respondent
has committed adultery.”  This has however evolved over a period of time. Earlier, only a
Christian man could file for divorce on the grounds of adultery. For a Christian woman to file
for adultery, it either had to be incestuous or coupled with other grounds like desertion or
cruelty. This change was brought about by the landmark case of Ammim v Union of India24.
A special bench of the Kerala High Court held that the ground of adultery was way more
favourable to men than to the wife as she not only has to prove adultery but also has to prove
another ground. Such discrimination is purely on the basis of sex and hence, violates Article
15 of the Constitution.  The court held that since the words “coupled with” are several and
liable, it should be struck down as it is ultra-vires the constitution.

The definition of adultery in family law is quite broad. When a married person has voluntary
sexual intercourse with any person who is not their spouse, it means he has committed

22
Reyond on Divorce, (10th Ed.), 172.
23
Vira Reddyv. Kistamma, 1969 Mad. 235; Subbarmav. Saraswathi, (1966) 2 M.L.J. 263; Bhagwanv.
Amar,1962 Punjab, 144; Rajenderv. Sharda, 1993 MP 142.
24
1995 Ker 252.

15 | Page
adultery. Thus, when a woman is raped, it does not come under the ambit of adultery, and
neither do pre-marital relationships fall under this category.

Section 11 of the same act requires the adulterer to be pleaded as co-respondent.  This is a
mandatory statutory requirement with only three exceptions:

1. The respondent is leading the life of a prostitute and the petitioner does not know with
whom the adultery has been committed.

2. The petitioner is not aware of the name of the adulterer though efforts have been
made.

3. The adulterer is dead.

In fact, the Gauhati High Court25 refused to confirm the decree of divorce on grounds of
adultery being accepted by the respondent upon failure to comply with this requirement.

Section 22 of the said act also allows for judicial separation on the grounds of adultery,
cruelty or desertion. Adultery of the husband in this Act includes adultery with any woman,
married or unmarried. In the case of Prem Prakash Rubin v.Sarla Rubin26, the husband
alleged adultery, cruelty and desertion on the wife. Though the husband had filed for divorce,
the court granted him a decree of judicial separation.

INSANITY

Insanity is a ground both for judicial separation and divorce. If the respondent "has been
suffering continuously or intermittently from mental disorder of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the respondent."
Explanation to the clause defines "mental disorder" as "mental illness", arrested or
incomplete development of mind, psychopathic disorder or any other disorder or disability of
mind and includes schizophrenia.“ The expression 'psychopathic disorder’ is defined as
"persistent disorder or disability of mind (whether or not including sub-normality of

25
WenmardMarak v. Poiby Momin AIR1988 Gau 50.
26
AIR 1989 MP 326.

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intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the
part of the other party, and whether or not it requires or is susceptible to medical treatment."

RESTITUTION OF CONJUGAL RIGHTS

The Indian divorce act27 states that the court on being satisfied of the truth of the statement
made in the petition, may decree the restitution of conjugal rights when either the husband or
wife has without reasonable excuse withdrawn from the society of other28.

The requirements of the provision of restitution of conjugal rights are the following: 
1. The withdrawal by the respondent from the society of the petitioner.
2. The withdrawal is without any reasonable cause or excuse or lawful ground.
3. There should be no other legal ground for refusal of the relief.
4. The court should be satisfied about the truth of the statement made in the petition.

CRUELTY

The English legislature as well as the courts have not attempted to define cruelty and English
as well as Indian courts have emphasized that in the back-drop of spousal relationship, acts or
conduct constituting cruelty are infinitely variable, and then in the ever changing and variable
social context with increasing complexities of modern life, no attempt at defining cruelty is
likely to succeed.

The view expressed by the Indian Law Commission, “it is. . .not (proper) to have a detailed
definition, but to allow the concept of cruelty to remain open to such adjustments as it is
desirable to make through the media of judicial decisions so as to accord with the changing
social conditions.”

Physical cruelty is often easy to comprehend, but difficulty usually arises in considering what
amounts to mental cruelty; perhaps, mental cruelty is lack of such conjugal kindness which
Inflicts pain of such a decree and duration that it adversely affects the health, mental or
bodily, of the spouse on whom it is inflicted29. Acts and conduct constituting cruelty can be so
numerous and varied that it would be well-nigh impossible to fit them in any water-tight

27
Section 32.
28
Sujatha Christiana v. Thomas AIR 2002 Mad 6.
29
Padma v. Parma Ram, AIR 1959 HP 37; Bhagat v. Mrs. D. Bhagat; AIR 1994 SC 710.

17 | Page
compartments. Cruelty may be subtle or brutal, physical or mental. It may be by words,
gestures or by mere silence30. Thus, it is submitted under all the Indian matrimonial Statutes,
cruelty can be given the same meaning. Giving cruelty a modern interpretation, it will include
both physical and mental cruelty. It is in this background that the concept of cruelty should be
looked at. The 1897 formulation of cruelty in the house of Lord, Russel v. Russel31 is still a
good starting point in any discussion of cruelty. The formulation of cruelty was made thus:
Cruelty is a conduct of such a character as to have caused danger to life or health, bodily or
mental give rise to reasonable apprehension of such danger.

DESERTION

Under most of the Indian statutes desertion32 is a ground for divorce or judicial separation or
for both. The Special Marriage Act, 1954and the Hindu Marriage Act, 1955contain an
identical provision, and desertion is a ground for both desertion of marriage and judicial
separation. Earlier under the Indian Divorce Act, 1869 desertion as such was not a ground of
divorce for either spouse. But in the case of wife ‘s petition for divorce, husband ‘s desertion
for a continuous period of two years coupled with his adultery was a ground for divorce.
However, two years ‘desertion without reasonable cause is a ground for judicial separation
for either spouse. Now position has been changed by the Indian Divorce (Amendment) Act,
2001 both adultery and desertion is separate ground for divorce.

Desertion may be divided in the following categories:

1. Actual desertion
2. Constructive desertion
3. Wilful neglect

The main elements of desertion are:

(a) the fact of separation (factum deserdendi) and

(b) the intention to desert (animus deserdendi)

30
Sukumar Mukherjee v. Tripti Mukherjee, AIR 1992 Pat 32
31
1897 AC 305.
32
Vipin Chandra v. Prabhawati AIR 1957 SC 176; Rohini v. Narendra, AIR 1972 SC 459; Lachman Utam
Chand Kripalani v. Meena, AIR 1964 SC 40: 66 Bom LR 297; Veena Kalia v. Dr.Jatindra Nath Kalia, AIR
1996 Del 54;

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These elements apply to the spouse who is in desertion; the deserter spouse must have left the
other party with an intention to forsake and abandon the other permanently.

The further elements are:

1. without any reasonable cause,

2. without the consent of the other party or against his wishes. These elements apply to
deserted spouse, i.e. the deserted spouse must not have provided a reasonable excuse
or cause for the deserter spouse to leave or withdraw from cohabitation he should not
give his consent for the act of desertion.
3. desertion should be at least of two years‘duration under the Hindu Marriage Act,
1955, Special Marriage Act, 1954 and the Indian Divorce Act, 1869 while it should be
of at least three years under the Parsi Marriage and Divorce Act, 1936 and the
Dissolution of Muslim Marriages Act, 1939.

RAPE, SODOMY AND BESTIALITY

Rape, sodomy and bestiality are grounds of divorce under which wife alone can sue for
divorce under the Hindu Marriage Act, 1955185, Special Marriage Act, 1954, and the Indian
Divorce Act, 1869.

The language of the clause under the Hindu Marriage Act, 1955, the Special Marriage Act,
1954 and the Indian Divorce Act, 1869 is identical. The husband had since the solemnization
of marriage, guilty of rape, sodomy or bestiality. Under the Parsi Marriage and Divorce Act,
1936, the clause lays down that any married person may sue for divorce on the ground that
the defendant has since marriage committedrape or unnatural offence.

Commission of the offence of rape, sodomy or bestiality by the husband gives the wife a right
to divorce him. Rape is a criminal offence under Section 375, Indian Penal Code. Sodomy
and bestiality are unnatural offences under Section 377, Indian Penal Code, and a person
guilty of these offences can be prosecuted in a criminal court. However, under Hindu law
these are recognized as special grounds of divorce for the wife, and the husband has no right
to divorce the wife if she is found guilty of the commission of any of these offences, though
commission of any of these offences may amount to cruelty to him, if it hurts his feeling and
affects his health.

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A man is guilty of rape when he forces sexual intercourse on an unwilling woman, i.e.,
against her will or without her consent, or if her consent is obtained by putting her in fear of
death or with her consent under a mistaken belief that she is his wife when in fact she is not,
or with or without her consent when she is under twelve years of age. However, one cannot
be guilty of raping his own wife, unless she is below fifteen years33

Sodomoy or bestiality is committed when one has carnal intercourse against the order of
nature with any man, woman or animal. If a man commits sodomy on his own wife without
her consent, then it would amount to the matrimonial offence of sodomy within the meaning
of the clause.34

When a wife sues her husband for divorce on the ground of commission of rape, sodomy or
bestiality, it is not necessary for her to show that he was prosecuted or convicted for the
offence. Even if the husband has been acquitted by the criminal court, she can, in divorce
proceedings, establish his guilt and obtain relief. On the other hand, even if the husband has
been convicted by a Criminal court, the wife will have to prove the offence de novo in the
matrimonial proceedings, then alone she will be entitled to the decree of divorce.

CONCLUSION
The Family Courts Act, 1984, and its subsequent Amendment in 1991, was passed to
promote conciliationand speedy settlement of disputes related to marriage and family affairs.
Under the purview of the Act, Family Courts were set up in the various states of India,
dealing with family related matters and domestic relations.

Family Courts in India cover issues of marriage, divorce, adoption or surrogacy, property
settlements, child custody, juvenile adjudication, paternity testing etc. Family Courts come
under the category of District and Sessions courts and are subordinate to the High Courts in

33
Laxmi v. Alagiriswami, 1975 Mad 211.
34
C. v. C, 22 TLR 26; Bamption v. Bamption, (1955) 2 All ER 766; Swarm Kumari v. M.B. Chowdary, 1996
MP 104 (sodomy not proved).

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the respective states. Family Courts were a part of the legal procedures to ensure the welfare
of women, facilitating the resolution of familial disputes in a manner in keeping with the
dignity of women.

The Family Court Act allows for the Family Courts in each state to formulate and
institutionalize their sets of procedures and rules. Apart from prescribing the requirements for
the appointment of Judges in the Family Courts, the Department of Justice, under the
Ministry of Law and Justice has little or no role to play in the administration of the Act.This
has led to significant differences between States on the effective implementation of the Act.
The Family Court Act attempts to loosen the shackles of the conventional legalsystem
bybypassing thelawyers and advocates; the Act stipulates that litigants are not entitled to have
a lawyer present, unless specifically allowed to do so by the Court. In practice however, this
requirement is rarely adhered to.

In the thirty years since the Family Courts Act was passed in India, there has been
considerable growth in the number of Family Courts in the country. The lacunae arising from
the lack of uniform rules and procedures have been illustrated at length. Even if some of the
suggestions coming from the marriage counsellors are considered for action, there is
substantial scope for improvement in the implementation and administration of the Act. The
Marriage Counsellor, who was envisioned as being central to the process of administration of
the Act, has not received the attention necessary for the growth of the profession. If the
Family Court Act has to have its desired effect across the country to resolve family disputes
in a harmonious fashion, then there is much that needs to be done with regard to the training,
roles and responsibilities of the counsellors serving in the various Family Courts in the
country.

As far as the divorce acts are concerned in India, it has come a long way from divorce being
considered as a taboo to several personal laws being established for divorce such as the he
Hindu Marriage Act (1955), The Special Marriage Act (1954), The Divorce Act (1869)
andThe Muslim Law.

As we know marriage and divorce laws vary from one custom to another but the essence
remains the same, that is, to provide justice to the victim. The law ensures that the husband
and wife respect the sacramental tie of marriage as well as one another but at the same time it

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ensures that nobody must carry the burden of torture and disrespect and has full freedom to
break this when necessary. Apart from divorce there are various other ways by which a relief
can be granted to the victim such as restitution of conjugal rights and judicial separation. The
law also ensures that the spouse is well maintained even after divorce by directing the
husband to pay alimony to the wife.

BIBLIOGRAPHY

● Paras Diwan, Modern Hindu Law, 23rd Ed, Allahabad Law Agency, Haryana, 2018.

● R.K.Agarwal, Hindu Law, 25th Ed, Central Law Agency, Allahabad, 2016.

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 ● Sanjay Bhattacharya, Social Work: Interventions and Management, Deep and Deep
Publications, New Delhi, 2008.

● P. Eshwara Bhat, Law and Social Transformation, Isted, Eastern Book Company,
Lucknow, 2009.

● Ratna Varma (Ed.,) Family Courts in India: An Appraisal of Strength and Limitation,
Inter India Publications, New Delhi, 1997.

● K. Panduranga Rao, Commentary on the Family Courts Act, 1984, Gogia Law
Agency, Hyderabad, 2010.

● Indian Divorce Act Bare Act

● https://www.latestlaws.com/articles/all-about-family-courts-act-1984-by-akanksha-ya
dav/

● https://blog.ipleaders.in/need-know-divorce-laws-india/amp/

● http://www.legalserviceindia.com/helpline/divorce.htm

● https://www.researchgate.net/publication/283715313_The_Family_Courts_Act_in_In
dia_Perspectives_from_Marriage_Counsellors

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