THE DIVORCE ACT, 1869

1. PRELIMINARY

(Sections 1 to 3)

The following four topics are discussed in this Chapter.

A. Introduction
B. Extent and application of the Act (Ss 1 & 2)
C. Object of the Act
D. Definitions (S 3)

A. INTRODUCTION

Before the advent of Christianity Roman law did not prescribe any formalities for marriage or divorce, which were
regarded essentially as personal matters But after Christ. marriage came to be regarded as a sacrament, and the
Church of Rome came to be regarded as the supreme ecclesiastical authority in matrimonial matters The canon law
also proclaimed the doctrine of absolute indissolubility of marriage on the ground that husband and wife were made
one flesh by an act of the Almighty ”What God bath joined together let no man put assunder In other words,
marriage came to be regarded as a holy and hallowed institution, which could never be dissolved. — except by death

Although a Christian marriage was regarded as a sacrament. separation in bed and board (a mensa et toro) was
recognised The marital tie was indissoluble, but the spouses could live away from each other, without the right to re-
marry during the life-time of the other spouse.

It was not until the Reformation that visible changes began to surface in the Christian concept of marriage as a union
of one man and one woman for life. The Reformation divided the Christian world into Catholics and Protestants,
and it was the Protestants who began to look upon marriage as a civil contract, which was not totally indissoluble,
and which could be subject to the jurisdiction of the civil courts of the land. The Catholics, however, continued to
advocate the doctrine of absolute indissolubility of marriage and regarded the Church as having exclusive control
over marriages

The Industrial Revolution, which brought with its salutary concepts of liberty, equality and the pursuit of happiness,
gave a further impetus to the Protestant concept of marriage being essentially a contract, and therefore, a
dissoluble union

In India, Christian marriages are governed by the Indian Christian Marriage Act, 1872, and divorce amongst
Christians is governed by the Divorce Act, 1869. Until 2001, both these Acts stood in contradistinction to statutes
governing other communities in India. as for instance, the Hindu Marriage Act, which was passed in 1955, or the
Special Marriage Act, passed in 1954, — or even the Parsi Marriage and Divorce Act, which was enacted in 1936.

Time and again, the Judiciary took pains to point out that concepts which were more than a hundred years old
continued to find place in the Act, and that the situation needed to be remedied. Thus, for instance, the Madras High
Court (in Solomon V. Chandirah, 1968, Mad. L. J., 289), observed as under :

”The Indian Divorce Act, 1869, is wholly out of date.... It is high time that the Act is brought in line with the Hindu
Marriage Act, the Parsi Marriage Act and the Special Marriage Act.”

In Jordan v. Chopra (AIR 1965 S. C. 935), the Supreme Court suggested a total reform of the law of marriage
applicable to Christians. It criticised the legislature and the State for not introducing changes in the Act, to bring it in
tune with modern conditions.

An attempt was made, in 1962, to codify the Christian law of marriage and divorce, and the Christian Marriage
and Matrimonial Clauses Bill was introduced in Parliament. However, when Parliament was dissolved in 1962, the
Bill also lapsed, and died a natural death !
The next attempt was made in 2000, when the Central Government convened a meeting of leaders of prominent
Churches in India, and Members of Parliament belonging to the Christian faith. Once again, unfortunately, there was
no consensus on bringing in a comprehensive legislation on Christian marriages and matrimonial matters. However,
it was unanimously agreed that the gender inequality contained in certain provisions of the Act ought to be removed.
It was also agreed that procedural delays in obtaining divorces deserved to be done away with. The Act was
accordingly amended, and the name of the Act was also changed from the Indian Divorce Act to the Divorce Act.

B. EXTENT AND APPLICATION OF THE ACT (Ss. 1 & 2)

The Divorce Act came into force on 1st April 1869. It extends to the whole of India, except the State of Jammu and
Kashmir.

No relief can be granted under the Act by any Court unless the Petitioner or the Respondent (i.e. either spouse)
professes the Christian religion. The Delhi High Court has clarified that it is sufficient to give jurisdiction to the
Court that one of the parties should be a Christian. (Pramilla Khosla v. Rajnish Khosla, A.I.R. 179 Del. 79)

As far as decrees of dissolution of marriage are concerned, the Act can be invoked to dissolve a marriage between
parties who are domiciled in India, even if the marriage was solemnized outside India. (Vincent Joseph Konath v.
Jacintha Angela Konath, AIR 1994 Born 120)

As far as decrees of nullity of marriage are concerned, two conditions have to be satisfied before a Court can
exercise jurisdiction under the Act, viz. —

(a) the marriage should have been solemnized in India; and

(b) the Petitioner (i.e. the spouse who files the matrimonial petition) should be resident in India when such a petition
is presented to the Court.

As far as other matrimonial reliefs are concerned (i.e. not decrees or dissolution of marriage or nullity of marriage),
the only pre-condition is that the Petitioner should be resident in India at the time of presenting the petition.

As held by the Calcutta High Court, a casual visit to India without any intention to reside in the country, does not
amount to ”residence in India”. (Estehr Kiron v. Franklin Kiron, AIR 1983 Cal. 56)

Thus, for obtaining any relief under the Act, the conditions stated above must be strictly complied with. If the Court
passes an Order without such compliance, the Court’s Order would be a nullity, and of no effect. (Finch v. Finch. A
I R. 1943 Lah. 260)

The Madras High Court has held that Family Courts also have jurisdiction (under the Family Courts Act. 1984) to
pass a decree for dissolution of a marriage under the Divorce Act Thus, in such matters, both the High Court and the
Family Ccurt have concurrent jurisdiction. (Dr. Mary v. Dr. Vincent, A.I R 1991, Mad 180)

In a case filed for dissolution of a Christian marriage, solemnized out of India. between Indian citizens domiciled in
India. it was held that the Divorce Act would apply, provided the jurisdictional conditions under S. 2 were satisfied.
In such cases. the High Court, and not the Family Court, would have jurisdiction in the matter (Vincent v Jacintha
A.I.R 1994 Born 120)

Jews, however, are not covered by the Divorce Act (Benjamine v. Bergaruna, I L.R (1925) 50 Bom 369)

C. OBJECT OF THE ACT

The Preamble states that the Divorce Act is an amending Act. with a two-fold purpose, viz. (i) to amend the law
relating to divorce of Christians, and (ii) to confer upon certain Courts in India. matrimonial jurisdiction not enjoyed
by them earlier
The object of the Act is reflected in the speech of Sir Henry Maine before the Legislative Council, on 26th March,
1869, when he stated as follows :

”This measure is obviously one of great social importance, it is substantially a consolidation measure It puts together
the English statute law on the subject in a more orderly form and in clearer language, and it incorporates the recent
decisions of the Divorce Courts”

D. DEFINITIONS (S. 3)

S. 3 of the Act defines several terms used in the Act, the most important of which are discussed below

”Court”

”Court” means the High Court or the District Court. as the case may be.

”District Court”

For the purpose of petitions presented under the Divorce Act, ’District Court means the Court of the District Judge
within the local limits of whose jurisdiction the marriage was solemnized or the husband or wife reside, or last
resided together.

”Minor Children”

The term minor children is defined to mean :

(i) In the case of native fathers, —

(a) boys who have not completed the age of 16 years, and
(b) girls who have not completed the age of 1.2 years:

(ii) in other cases, — unmarried children (-boys or girls-) who have not completed the age of 18 years.

”Incestuous adultery”

The definition of the expression ”Incestuous adultery” has been omitted by the Indian Divorce (Amendment) Act,
2001.

”Bigamy with adultery”

The definition of -Bigamy with adultery” has been omitted by the Indian Divorce (Amendment) Act, 2001.

”Marriage with another woman”

The expression ”marriage with another woman” refers to the marriage of any man who marries any other woman,
during the lifetime of the former wife, it being immaterial whether the second marriage took place in India or
elsewhere

”Desertion”

The term desertion refers to an abandonment of a spouse, against the wish of such spouse.

(A reference may be made to the discussion under ’Desertion’ in the next Chapter.)

”Property”

In the case of a wife, the term ”property includes any property to which she is entitled
(a) for an estate in remainder or reversion, or –
(b) as a trustee, executrix or administratix.

It is also clarified that the date of the death of the testator or intestate shall be deemed to be the time at which any
such wife becomes entitled as executrix or administratix.
2. JURISDICTION

(Section 4 to 9)

The following six topics are discussed in this Chapter :

A. Matrimonial jurisdiction of High Courts (S. 4)

B. Enforcement of earlier decrees and orders. (S. 5)
C. Pending suits (S. 6)
D. Courts to act on principles of the English Divorce Court (S. 7)
E. Extraordinary jurisdiction of High Courts (S. 8)
F Reference to High Court (S. 9)

A. MATRIMONIAL JURISDICTION OF HIGH COURTS (S. 4)

S. 4 provides that the jurisdiction exercised by the High Court, at the time when the Divorce Act came into force, in
respect of divorce a mensa et toro and in all other matrimonial matters, is to be exercised by such High Courts and
by the District Courts, subject to the provisions of the said Act. However, as far as granting of marriage licenses are
concerned. it is provided that the same may be granted as if this Act had not been passed

Thus, an exclusive jurisdiction is sought to be conferred by S. 4 on the High Courts and the District Courts in all
matrimonial matters falling under the Divorce Act. However, as stated earlier (Ch l), after the passing of the
Family Courts Act, 1984. it has been held that the Family Courts hays concurrent jurisdiction to pass a decree for
dissolution of a marriage under the Indian Divorce Act (Dr. Mary v. Dr. Vincent, A.I.R. 1991, Mad. 180)

The Supreme Court has observed that Christian can seek divorce only through the courts under the Divorce Act, and
that a ’Church Court or ”Ecclesiastical Tribunal” is not empowered to grant a divorce. (Molly Joseph v. George)

B. ENFORCEMENT OF EARLIER DECREES AND ORDERS (S. 5) S. 5 (which is only of academic interest
today) makes a provision for decrees and orders passed by the then Supreme Courts of Judicature at Calcutta,
Madras or Bombay, in the exercise of their ecclesiastical or matrimonial jurisdiction before the Act came into force.
It provides that such decrees and orders may be enforced, by those Courts as if they had originally been filed under
the said Act.

C. PENDING SUITS (S. 6)

As regards pending suits, it is provided that all matrimonial suits and proceedings pending in any High Court at the
time when the Divorce Act. came into force are to be dealt with and decided as if they had originally been filed
under the said Act.

COURTS TO ACT ON PRINCIPLES OF ENGLISH DIVORCE COURT (S. 7) (Repealed)

Formerly it was provided that, subject to the express provisions of the Act, the Courts in which matrimonial matters
are filed under the Divorce Act. (Le. the High Courts and the District Courts) were obliged to act on the same
principles and rules on which the Courts of Divorce and Matrimonial Causes in England, for the time being, act (S
7)

S 7 has now been repealed by the Indian Divorce (Amendment) Act. 2001

E. EXTRAORDINARY JURISDICTION OF HIGH COURTS (5. 8)

Whenever a High Court thinks fit, it can remove any matrimonial suit or proceeding under the Act, pending before
any District Judge within the High Court’s Jurisdiction, and try and determine it as a Court of original jurisdiction

The High Court is also given the power to withdraw any such suit and transfer it for trial and disposal to any District
Judge within the High Court’s jurisdiction.

F. REFERENCE TO HIGH COURT (S. 9)

If any question of law (or of a usage having the force of law) arises at any point before the hearing of a suit or at any
stage in the suit, or in execution proceedings, before the District Judge, the latter may draw up a statement of the
case and refer it to the High Court for a decision This can be done by the District Judge either on his own (i e suo
motu) or on the application of any of the parties.

In such cases, the District Court can either stay the proceedings pending before it until the High Court’s opinion is
received, or pass a decree contingent (i.e. conditional)’ upon the opinion of the High Court on the point referred to
it.
3. DISSOLUTION OF MARRIAGE

(Sections 10 to 17)

The following five topics are discussed in this Chapter :

A. When a Christian husband or wife can obtain a decree

of dissolution of marriage (Ss. 10 & 11)

B. When a Christian wife can obtain a decree of dissolution of marriage (S. 10)
C. Divorce by mutual consent (S. 10-A) D. Power of the Court (Ss. 12 to 15)
E. Decree nisi and confirmation of decree (Ss 16 & 17)

Each of these topics is discussed below

A. WHEN A CHRISTIAN HUSBAND OR WIFE CAN OBTAIN A DECREE OF DISSOLUTION OF

MARRIAGE (Ss. 10 & 11)

Today, a Christian marriage can be dissolved only by a decree of a court passed under the Divorce Act. The
Ecclesiastical Tribunals have no jurisdiction to pass a decree of divorce in Christian marriages (George Sebestian v
Molly Joseph. AIR 1955 Ker 16)

The Amendment of 2001 has effected a drastic change in the grounds available to a Christian couple for
dissolution of their marriage (i.e. divorce).

Formerly, adultery (-plane and simple adultery-) was the only ground available to the husband. On the other hand,
in the case of a petition by the wife, the requirement was of incestuous adultery or adultery coupled with bigamy or
with cruelty or with desertion. This sex discriminatory provision was struck down by several High Courts. including
the High Courts of Kerala, Andhra Pradesh and Bombay. on the ground of gender inequaility. (Ammini v Union of
India AIR 1955 Ker, 252; N. Sarda Mani v. Alexander, AIR 1988 A P. 157 1997 All Mah. 504)

Now, S. 10 has been drastically amended, and under the amended section, ten grounds have been enumerated and all
these grounds listed below are available both to the husband as well as the wife.

After the Amendment of 2001, either party to the marriage can file a petition before the District Court, praying for a
dissolution of the marriage, on the ground that, after the solemnisation of the marriage, the respondent -

(i) has committed adultery. or

(ii) has ceased to be Christian by conversion to another religion;or

(iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding
the presentation of the petition or

(iv). has, for a period of not less than two years immediately preceding the presentation of the petition, been
suffering from a virulent and incurable form of leprosy; or

(v). has, for a period of not less than two years immediately preceding the presentation of the petition, been
suffering from venereal disease in a communicable form; or

(vi). 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; or

(vii). has willfully refused to consummate the marriage and the marriage has therefore not been consummated: or

(viii). 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; or

(ix). has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or

(x). has treated the petitioner with such cruelly 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.

Adultery

The term -adultery” has not been defined in the Act. The expression refers to voluntary sexual intercourse between a
man and a woman, one. of whom is married to a third party.

Latey defines the term ”adultery” as ’the willing sexual intercourse between a husband or a wife with one of the
opposite sex, while the marriage subsists.”

The standard of proof for adultery in a matrimonial petition is not as strict as under criminal law. Direct evidence of
the adultery is not insisted upon, as it would be by its nature, quite rare.

In fact, direct evidence of adultery is generally looked upon by the Courts as rather suspicious, as it is quite
improbable that adultery would be committed in the presence of a witness. (Simon v. Bakla Pat. 627)

In most cases, therefore, the Courts have to rely upon circumstantial evidence, evidence as to opportunity,
inclination and conduct evidence of the birth of a child during non-access (i.e. during a period when the husband
has no physical access to the wife), evidence of visits to brothels, etc.

However, a mere exchange of letters between a man and a woman cannot be ,sufficient proof of adultery. Likewise,
mere hearsay evidence which is not corroborated, does not amount to proof of adultery.

Very often, proof of adultery is offered in the form of hotel bills and entries in hotel registers. Where this is the only
evidence, the Courts tend to look upon such evidence with suspicion, especially when there is no evidence of a
background of adulterous association. (Raspin v. Raspin, 1953 2 All E.R. 349)

The Delhi High Court has held that when there is unrebuttable evidence of a witness that the wife had lived in a
one-room fiat, for more than seven months, with another man, this is sufficient to prove that they were living in
adultery. (Peter v. Angllina. A.I.R. 1992 Del 20)

Likewise, when a man and a woman who are not related to each other are found to be living together under
suspicious circumstances, it is difficult for a court to believe that they were meeting ’only to say prayers” and that
they were therefore not guilty of an matrimonial offence. (Vaishery v Vailshery, AIR 1997 Kar 341)

It will be seen that, under S. 10, either spouse can file a petition on the ground of adultery. S. 11 then lays down that,
in such cases, the petitioner must make the alleged adulterer or adulteress a co-respondent, — unless the petitioner is
excused by the Court from doing so, on any of the following grounds :

(a) If the wife is the respondent.— on the ground that she is leading the life of a prostitute, and the petitioner knows
of no person with whome adultery has been committed: or

(b) if the husband is the respondent —on the ground that he is leading an immoral life and that the petitioner knows
of no person with whom the adultery has been committed: or

(c) that the name of the alleged adulterer or adulteress is – unknown to the petitioner, — although the petitioner has
made due efforts to discover it: or

(d) that the alleged adulterer or adulteress is dead

Desertion
S. 3 of the Act defines desertion as: “an abandonment against the wish of the person charging it”

The legal concept of desertion has been well-summarised in Halsbury’s Laws of England as follows :

”In its essence, desertion means the intentional forsaking and abandonment of one spouse by the other, without that
other’s consent, and without reasonable cause It is a total repudiation of the obligation of marriage.”

It is now well-established that two factors must co-exist to establish desertion in a court of law. Firstly, there must
be a factum of desertion, i.e. actual separation, and secondly, this must be accompanied by animus desarandi ie. the
intention to desert. (See ’Desertion’ in Chapter I.)

In order to entitle a Christian to obtain dissolution of the marriage, the desertion should continue for two years. or
more.

It is now well-settled that there may be desertion, even though the spouses are living under the same roof. This is
sometimes referred to as constructive desertion. However, in such cases, it is necessary to show that they are living
as two separate households. (Bull v Bull, 1933 2 All E. R. 601)

It has also been held that if the husband creates circumstances which compel the wile to leave the house, it is
the husband, and not the wife, who is guilty of desertion. (Handa v. Handa, AIR 1985 Del 76)

It has also been held that desertion commences from the time when the husband makes up his mind to abandon the
wife, and not from the time when they actually cease to cohabit. (Gatehouse v. Gatehouse, 1 P & M 331)

Cruelty

There is no precise legal definition of the term ”cruelty”; nor would it even be safe to attempt such a definition.
Whether an act amounts to cruelty or not will depend on the facts of each case. As observed by Lord Denning,
”The categories of cruelty are not closed”. (Sheldon v Sheldon. 1966 2 All. E.R 257)

When a petition is filed on the ground of cruelty, regard must be had to the circumstances of each particular case,
keeping always in mind, the physical and mental condition of the parties, their character and social status.
(Tomkins v. Tomkins, 1858 1 S. W & Tr. P. 168)

Some instances of legal cruelty are :

(a) The husband spreading false reports about his wife’s adultery, tending to injure her health (Jeapsos v Jeapes)

(b) The husband’s behaviour towards his wife in a public street, in such a way as to lead a passer-by to take her to be
a prostitute (Milner v. Milner)

(c ). Insisting on oral sex and anal sex, causing pain and injury to the wife (B v. S. 1 DMC 620)

On the other hand, the following have been held not to amount to legal cruelty

(a) Mere use of violent words (Russel v. Russel);

(b) Insult, bad language or abuse which does not raise a reasonable apprehension of bodily harm. (Gordon v.
Gordon)

The concept of cruelty, as it has evolved today, covers not only physical cruelty but also mental cruelty. Thus,
cruelty may be in the form of physical action, or by words, or by gestures, — or even by mere silence.

The Andhra Pradesh High Court has held that an unfounded allegation of the husband that the wife’s children were
not his, but born through some other man, amounts to mental cruelty (Babu v. Ammaji, A.I.R. 1991 NOC 30)
In a case decided by a Special Bench of the Madras High Court, the husband had filed a divorce petition under S. 10
of the Act, alleging that his wife was living in adultery with the second Respondent. The wife denied the allegation,
but stated that she had no objection to the divorce as the husband had been treating her with great cruelty. The
District Judge granted the divorce. When the case came to the High Court, reversing the order of the District
Judge, the Court held that a divorce under the Act cannot be granted on the ground that the other spouse had no
objection to.it In such cases, only if the petitioning spouse can prove the allegations can the divorce be granted. (A.
Edwardraj V. A Sellakatti, A.I.R. 1994 Mad. 82)

The Calcutta High Court has held that if a husband is not offered even a single cup of tea when he visits the wife’s
parental home, this cannot be held to be a case of ”cruelty”. As the court observed, carelessness and discourtesy are
not other names for ”cruelty”. (Bhattacharjee v. Bhattacharjee, AIR 2004 Cal 161)

The Allahabad High Court has held that if the wife has been duped and gang-raped, it cannot be said that she has
committed adultery Rape cannot be a ground for divorce Nor can it be said that there is ”cruelty” on the part of the
wife because the husband has to live with the rape victim. (Singh v Singh. AIR 2005 All 16)

B WHEN A CHRISTIAN WIFE CAN OBTAIN A DECREE OF DISSOLUTION OF MARRIAGE (S. 10)

An additional ground is given to a Christian wife to file a petition for dissolution of the marriage. She can file such a
petition on the ground that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or
bestiality

The term ”rape” is not defined in the Indian Divorce Act, and a reference may therefore, be made to S. 375 of the
Indian Penal Code, which defines the term as follows

A man is said to commit ”rape”, who has sexual intercourse with a woman
(a) against her will; or
(b) without her consent; or
(c) with her consent, where her consent has been obtained by putting her or any person in whom she is interested in
fear of death or of hurt: or
(d) with her consent, when the man knows that he is not her husband, and that her consent is given because she
believes that he is another man to whom she is or believe herself to be lawfully married; or
(e) with her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of any stupefying or unwholesome substance, she is unable
to understand the nature and consequences of that to which she gives consent; or
(f) with or without her consent, when she is under sixteen years of age.

It is also, clarified that –

(i) penetration is sufficient to constitute the offence of rape; and
(ii) sexual intercourse by a man with his own wife who is not under fifteen years of age is not rape.

Sodomy refers to carnal intercourse committed against the order of nature by a man with another man, or in the
same unnatural manner by a man with a woman.

Where there is evidence that the wife was a consenting party to the act of sodomy; she will not succeed in her
petition, .where this is the only ground alleged against the husband. (Statham v Statham, 1929 P 131)

It is now well-settled that consent and condonation on the part of the wife , will disentitle her to a divorce on the
ground of her husband’s sodomy (Bampton v. Bampton. 1929 2 All. E.R. 766)

The term “bestiality” refers to unnatural carnal intercourse by a man with an animal.

C. DIVORCE BY MUTUAL CONSENT (S. 10-A)

Divorce by mutual consent is a form of divorce available under other laws also like the Hindu marriage Act, the
Special Marriage Act and the Parsi marriage and Divorce Act.
The urgent need to introduce “mutual consent” as a ground of divorce under the Indian Divorce Act was considered
in several judicial pronouncements. The Supreme Court (in Reynold Rajamani v. Union of India, AIR 1982 SC
1261) observed that the world is still a man’s world, and the laws are man-made laws. Nevertheless, divorce by
mutual consent should be available to every couple, whatever religion they may profess

It is, therefore, commendable that the Amendment of 2001 has introduced the concept of dissolution of marriage by
mutual consent.

A petition for dissolution of the marriage can now be presented to the District Court by both the parties to the
marriage together, on the ground, —

(i) that they have been living separately for a period of two years or more:
(ii) that they have not been able to live together; and
(iii) that they have mutually agreed that the marriage should be dissolved.

In such cases, it is immaterial whether the marriage had been solemnised before or after the Amendement of 2001.

When such a petition is presented to the District Court, on a motion of both the parties made not earlier than six
months after the date of the presentation of the petition, and not later than eighteen months after the said date, the
Court shall, on being satisfied, after hearing the parties and making necessary inquiries, that a marriage has been
solemnised and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with
effect from the date of the decree, — unless the petition is withdrawn by both the parties in the meantime.

SUMMARY OF GROUNDS OF DIVORCE UNDER THE ACT

After the Amendment of 2001, either spouse to a Christian marriage can petition for a divorce on any of the
following grounds

(i) adultery:
(ii) conversion to another religion;
(iii) having been of incurably unsound mind for at least two years,
(iv) suffering from a virulent and incurable form of leprosy for at least two years;
(v) venereal disease in a communicable form for two years or more:
(vi) not heard of for seven years or more;
(vii) wilful refusal to consummate the marriage:
(viii) failure to comply with a decree for restitution of conjugal rights for two years or more;
(ix) desertion for two years or more;
(x) cruelty, Additionally. a Christian wile can also ask for divorce on the ground that her husband has been guilty of
rape, sodomy or bestiality

In addition to the above, both the parties can also file a petition for divorce by mutual consent.

D. POWERS OF THE COURT (Sections 12 to 15)

Absence of collusion (S. 12)

Whenever a petition is filed for dissolution of marriage. it is the primary duty of the Court to ensure that there is no
collusion between the parties. For this purpose, the Court must :

(a) satisfy itself as regards the facts alleged in the petition:

(b) ascertain whether the petitioner was, in any manner. accessory to. or had connived at, going through the form
of marriage, or the adultery, or has condoned the same
(c) inquire into any counter-charge which may be against the petitioner.

When the Court must dismiss the petition (S. 13)

The Court must dismiss the dissolution petition, if :

(i) it is satisfied that the petitioner’s case is not proved: or

(ii) it is not satisfied that the alleged adultery is proved, or
(iii) it is found that the petitioner has, during the marriage, been accessory to or has connived at, the going through
of the marriage or the adultery of the other party or has condoned the adultery complained of: or
(iv) it is satisfied that the petition is presented in collusion with either of the respondents

When the Court must grant the petition (S. 14)

If the Court is satisfied that the case of the petitioner has been proved, and that the petitioner has not been an
accessory to, or connived at. the going through the form of marriage or the adultery, and not condoned the adultery,
and that there is no collusion, the Court must pronounce a decree of dissolution of the marriage.

S 14 also clarifies that, for the purpose of the Act, adultery is deemed to have been condoned only if conjugal
cohabitation has been resumed or continued.

When the Court is not bound to pronounce the decree (S. 14)

In the following five cases, the Court is not bound to pass a decree dissolving a marriage, viz. —

(a) if the petitioner himself (or herself) has been guilty of adultery during the marriage; or
(b) if the petitioner has unreasonably delayed in presenting or prosecuting the petition; or
(c) if the petitioner is guilty of cruelty towards the other spouse: or
(d) if the petitioner has deserted or wilfully separated himself (or herself) from the other spouse before the adultery
complained of. and without any reasonable excuse: or
(e) if the petitioner is guilty of such wilful neglect or misconduct towards the other spouse. as has conduced to the
adultery

(The concepts of ”adultery”. ”cruely”, ”desertion”, etc. have already been discussed earlier in this Chapter.)

Any unreasonable or unexplained delay between the petitioner’s knowledge of his wife’s adultery and the filing of
his petition for dissolution of the marriage may induce the Court to dismiss the petition as indicating acquiescence in
the injury complained of. (King v. King, LVII Cal. 215)

Relief in case of opposition on certain grounds (S. 15)

When a suit is instituted for dissolution of a marriage, if the respondent opposes the relief sought on specified
grounds (-see below–), the Court may give to the respondent, the same relief to which he (or she) would have been
entitled to. if he (or she) had presented the petition for matrimonial relief.

The specified grounds referred to in S. 15 are :

(a) in case of a dissolution suit filed by the husband, — his adultery, cruelty or desertion; and

(b) in case of a dissolution suit filed by the wife — her adultery cruelty or desertion.

It is clear that the object of S. 15 is two-fold : to avoid multiplicity of suits between the same parties. and to enable
the Court to render full and complete justice.

In one case, a husband filed a case against his wife on the ground of adultery, which he could not prove. However,
in the same suit, the wife leveled allegations of adultery, cruelty and desertion, which were proved by her. In the
circumstance, the court held, that in view of the express provisions of S. 15 of the Act, a decree of divorce can be
passed. (MaIza Shira v Archana Marak, AIR 2004 Gau 165)

E. DECREE NISI AND CONFIRMATION OF DECREE (Ss. 16 & 17)

Decree nisi (S. 16)

A ”decree nisi” is a conditional decree, which needs to be confirmed by the Court later on. It is a decree which is
temporary and provisional in character, and it does not terminate the suit

S. 16 provides that, initially, a decree for dissolution of a marriage passed by the High Court is to be a decree nisi,
i.e. a conditional decree. Such a decree is to be made absolute only after the expiry of such time (not being less than
six months) as the High Court may direct.

During this interim period (of six months or more), arty person can approach the High Court, praying that the decree
should not be made absolute, because it was obtained by collusion, or because material facts were not brought to the
Court’s knowledge The Court must then look into the matter, and either make the decree absolute or reverse the
decree nisi. If the circumstances require, the Court can require further inquiry to be made into the matter.

Whenever a decree nisi has been made, and the petitioner fails to apply to the High Court, within reasonable time, to
have it made absolute, the Court may dismiss the matrimonial suit

During the period when the decree nisi is in force. the status of the parties does not change. They continue to be
husband and wife in the eyes of law — until a decree absolute is passed in the matter (Sunandra v. Subbarao, A.I.R.
1957 A. P 424)

The Calcutta High Court has held that if the husband dies after the decree nisi, but before it is confirmed, the suit
abates In such cases, the Court has no jurisdiction either to confirm or refuse to confirm the decree of dissolution.
(Desilva v. Desilva, A.I R. 1992 Cal. 309)
Formerly it was provided that every dissolution decree passed by a District Judge required to be confirmed by the
High Court. Such a provision was found to be arbitrary and unreasonable, and resulted in procedural delays and
consequential hardship. It was, therefore, deleted by the Amendment of 2001

Power of High Court to remove certain suits to itself (S. 17)

When a suit is pending before a District Judge, any person who suspects collusion therein. may apply to the High
Court, which may. if it thinks fit, remove such suit to itself, and try and determine the same as a Court of original
jurisdiction. Alternately the High Court may direct the District Judge to take such steps as may be necessary in
respect of the alleged collusion, to enable him to pass a decree in the best interests of justice.
4. NULLITY OF MARRIAGE

(Sections 18 to 21)

This Chapter is discussed under the following three heads :

A. Who can file a petition (S. 18)

B. Grounds for decree of nullity (S. 19)
C. Children of annulled marriage (S. 21)

A. WHO CAN FILE A PETITION (S. 18)

S. 18 of the Act confers a right on the husband or the wife to present a petition to the District Court, praying that his
(or her) marriage be declared null and void, on any of the five grounds set out in S. 19 (below).

It also follows that in case of such void marriages, a third party cannot petition the Court. such a right being vested
only in the spouses to such a marriage. (Simpson v. Biswas. A.I.R. 1980 Cal. 214)

A Special Bench of the Kerala High Court has held that a Christian marriage can be declared null and void only by
a decree of a court. Ecclesiastical (Church) Tribunals have no jurisdiction to declare such marriages to be null and
void (George Sebastian v. Molly Joseph, A.I.R. 1995 Ker. 16)

B. GROUNDS FOR DECREE OF NULLITY (S. 19)

Under the Indian Divorce Act, a decree of nullity may be passed on any of the following five grounds, viz.—

(i) Impotency:

(ii) Prohibited degree of consanguinity or affinity:

(iii) Lunacy or idiocy:

(iv) Marriage contracted during the life-time of the former spouse: and

(v) Consent obtained by force or fraud.

The Act has intentionally used the word ”may” and not the mandatory ”shall”) to leave the court’s discretion
unfettered when deciding a particular case. (Rose Simpson v. Binimoy Biswas, AIR 1980—Cal 214)

(1) Impotency

Impotency of the respondent (ie the other spouse), both at the time of marriage, and at the time of filing the suit, is
the ground on which a decree of nullity can be obtained under the Act..

Impotency refers to the physical or mental condition of a person, which makes sexual intercourse and
consummation of the marriage practically impossible. The term, as used in matrimonial statutes, does not refer
to sterility or incapacity to conceive; it refers to incapacity to have normal sexual intercourse.

Proof of impotency is normally in the form of medical reports, and if a spouse refuses to undergo a medical
examination, an adverse inference can be drawn by the Court. (Biswas v Biswas. 48 Cal. 283)

The Madras High Court has held that where a spouse is charged with impotency. non-consummation of a marriage
in spite of a reasonably long period of cohabitation, coupled with a refusal on the part of spouse to submit to a
medical examination, would entitle the Court to draw an inference of impotency. (Jean v. Joseph, A.I.R. 1965 Mad
155)
In John v. Mary (AIR. 1994 Mad. 81), the married couple has spent the first night in a posh hotel, and thereafter,
lived together for nine days. Throughout the period, the wife persistently refused to have intercourse with the
husband. Although he tried his best to win her love. all his efforts to consummate the marriage were in vain. It was
also shown that the wife’s parents had taken some steps to remedy the defect earlier On these facts, it was held that
the impotency of the wife could be inferred, and the marriage was declared null and void.

The Andhra Pradesh High Court has observed that the fact that the wife has not attained puberty is itself not
sufficient to hold that she is ’impotent”. Consummation of the marriage can take place so long as she is physically
and mentally fit for sexual intercourse. (Meganti v. Meganti. AIR 2006 AP 259) Relative impotency

A person may be generally capable of having intercourse, and yet he may be incapable of doing so with a particular
person. This is known a. relative impotency and is also a good ground for nullity Thus, were the husband was found
to be impotent as regards his wife only a decree of nullity was passed by the Court. (Clifford v. Clifford, 45 CWN.
249)

(ii) Prohibited degree of consanguinity or affinity

A decree of nullity can also be granted on the ground that the parties to the marriage are within the prohibited
degrees of consanguinity (whether natural or legal) or affinity.

Consanguinity literally means ”of the same blood’. It denotes a relationship by descent, either lineally as in the case
of a father and his son, or collaterally from a common ancestor, as in the case of cousions as they have a common
grand-parent. Affinity on the other hand, denotes a relationship, not by blood, but by marriage, e.g. the relationship
between a man and his wife’s relatives.

The Divorce Act has not laid down the prohibited degrees of consanguinity. It has, therefore, been held that this
question must be decided in light of the following factors :

(a) the domicile of the parties;

(b) the personal or customary law of the parties; and
(c) the rules of equity, justice and good conscience.

As far as Roman Catholics are concerned, it is prescribed by Canon Law that if the spouses are related by
consanguinity in the second degree, that would entitle the marriage to be annulled.

(iii) Lunacy or idiocy

A decree of nullity can also be passed on the ground that either party to the marriage was a lunatic or idiot at the
time of the marriage. Thus, the state of the spouse at the time when the suit is filed, or at the time of the trial, is not
relevant; what S. 19 requires is that the spouse should be a lunatic or an idiot on the date of the marriage.

A lunatic may be defined as a person of unsound mind An idiot, on the other hand, is regarded as a mentally
defective person. who is unable to guard himself against common physical dangers (The terms lunatic” and ”idiot
are generally not used today in English law)

In one case, a wife was suffering from a minor psychological problem on account of her elderly father’s sickness.
However, there was absolutely no proof that she was mentally deficient or of subnormal intellect. The Court
refused to recognise this as ”lunacy” and did not grant a decree of nullity. (Mathew v Kuruvilla AIR 1990 Ker. 262)

Likewise, mere weakness of intellect or instances of short temper or erratic behaviour does not make a person a
”lunatic or an ’idiot’ under the Act

(iv) Marriage contracted during the life-time of the former spouse

An important ingredient of a Christian marriage is that neither party should have a spouse living at the time of the
marriage

S. 19, therefore, provides that a decree of nullity can be passed on the ground that the former .husband or wife of
either party was alive at the time of the marriage and the marriage with such husband or wife was then in force.

This clause emphasizes the rule of monogamy amongst Christians, and prohibits bigamy. The parties to a bigamous
marriage are also punishable under the Indian Penal Code.

The existence of a former spouse makes the second marriage void, unless the earlier marriage was set aside prior
to such marriage.

When one spouse files a nullity petition on this ground, the petitioner must prove —

(i) that there was a previous marriage of the spouse:

(ii) that such marriage was in full force and effect, and was not set aside at the time when the second marriage
took place; and
(iii) that the former spouse of such earlier marriage was alive on the date of the second marriage.

(v) Consent obtained by force or fraud

A decree of nullity can also be passed by the High Court on the ground that the consent of either party was obtained
by force or fraud.

This rule re-establishes the proposition that a marriage should proceed from the total free will of both the parties.
and should not be a result of coercion or deceit

It is to be noted that in such cases, the marriage is annulled. not because of the presence of fraud, but because of
absence of consent So. once it is proved that the consent to the marriage was freely given, even if fraud also existed,
such fraud would be irrelevant.

Thus, it has been held that concealment of the fact that the bride was pregnant (from another man) at the time of
marriage would be fraud within the meaning of S. 19. (Raju v. Janaki, A.I.R. Mys. 61)

However, according to the Bombay High Court, obtaining the consent of the bridegroom on a misrepresentation
regarding the moral character or virginity of the bride would not amount to fraud. (David v. Kalpana 78 B L.R. 85)

In a case decided by the Kerala High Court, it was found that the husband had induced the wife to consent to the
marriage by misrepresenting that the husband was born of Christian parents. The evidence, however, showed that he
had not professed the Christian faith at any time in his life. The Court held that the marriage was vitiated on the
ground of the fraud of the husband. (Leelamma v. Kochaniyan, AIR 1993 Ker 57)

The Kerala High Court has observed that if a man has undergone vasectomy before the marriage and this is not
disclosed to the wife, it can be treated as ”fraud” (Moore v Valsa. AIR 1912 Ker 176)

However, if the wife had suffered from mental abrasion before the marriage but it was cured before she got married,
there would be no ”fraud”.if this was not disclosed to the husband: (Benoy Mathew v Philomina (2002) DMC 541)

In a case decided by the Supreme Court, the question raised was whether a ”Church Court” or an ”Ecclesiastical
Tribunal” could annul a Christian marriage and declare it to be illegal. Answering the question in the negative. the
Supreme Court held that there is no scope for any authority including Ecclesiastical Tribunals, to deal with
matrimonial disputes, which are covered by the Divorce Act. Unless

the Act itself recognises such authorities (-which it does not), any decree or order passed by any such authority
cannot be binding on the courts, it was observed. (Molly Joseph v. George)

C. CHILDREN OF ANNULLED MARRIAGES (S. 21)

S. 21 makes a salutary provision as regard children of an annulled marriage. This provision, however, applies only
in cases where a marriage is annulled on any of the following two grounds, namely

(a).—That a former husband or wife was alive, the second marriage was contracted in good faith and full belief of
the parties that soon former husband or wife was dead: or

(b) on the ground of insanity.

In both these cases, the names of the children who are begotten before the annulment decree are to be specified in
such decree, and they become entitled to succeed to their parent’s property, as if they were legitimate children

English law

In England, under the Matrimonial Causes Act. 1965. the principle of legitimacy is more widely applied. It is
provided that, in such cases, any child who would have been a legitimate child, if the marriage had been dissolved
(instead of being annulled), is treated as a legitimate child. despite the annulment order
5. JUDICIAL SEPARATION

(Sections 22 to 26)

This Chapter is discussed under the following three heads :

A. Judicial Separation (Ss. 22 & 23)

B. Position of separated wife (Ss. 24 & 25)
C. Reversal of Decree of Separation (S. 26)

A. JUDICIAL SEPARATION (Ss. 22 & 23) S. 22 clarifies that, after the passing of the Divorce Act, the Court
cannot pass a decree of divorce a mensa et toro (i.e. separation in bed and board) However, the -Court can pass a
decree of judicial separation on any of the following three grounds, viz.-
(i) adultery: or
(ii) cruelty; or
(ii) desertion for 2 years or more.

Such a petition can be filed either by the husband or the wife, and a decree on such a petition would have the effect
of a divorce a mensa et toro.

It he concepts of ”adultery”. ”cruelty” and ”desertion” have been discussed at length in Chapter 3, to which a
reference may be made.) A petition for judicial separation may be filed by either spouse in the District Court (S 23)

If a District Court grants a decree for judicial separation, such a decree does not require any confirmation by the
High Court (Benzmin v. Rundbhai. A I.R 1989 M P 25)

Delay

Lapse of time is not an absolute bar to a suit for judicial separation. However, whenever there is undue delay in
presenting such a petition, it is a matter which the Court should take note of, by calling upon the petitioner to explain
the delay. (Boulting v. Baoulting. (1866) 3 Sw. & Tr. 329)

Effect of the decree

The obligation of one spouse to cohabit with the other ceases when a decree for judicial separation is passed. One
logical consequence is that there can be no desertion after such a decree.

Remedy criticised

A lot of criticism has been levelled against the remedy of judicial separation in matrimonial laws. Thus. for instance,
it has been said that the spouses are exposed to enforced celibacy even whilst they are still married. This situation
can, in some cases, lead to immorality In any event, such separation can bring misery to both the parties, including
the innocent one, and can also be detrimental to the interests of the children.

However, the provision for judicial separation does exist In several matrimonial statutes in India. S. 12 of the
Matrimonial Causes Act, 1965, also provides for judicial separation in England.

On the other hand, it is argued that such provisions are necessary to provide relief, in appropriate cases, to spouses
who object to a divorce on grounds of religion or conscience It is also said that it is a desirable remedy for an injured
spouse, which remedy. at the same time, leaves the doors open for matrimonial reconciliation in the future.

B.POSITION OF SEPARATED WIFE (Ss. 24 & 25)

S.24 lays down that when a decree for judicial separation is passed as long as the separation continues, the wife is to
be regarded as unmarried with respect to any property which she may acquire, or which may come to. or devolve
upon her Such property can be disposed of by her as if she was unmarried, and on her death intestate (i.e. without
making will), such property devolves as if her husband was not alive.

If. after the separation. the wife again cohabits with her husband, all such property will be held to her separate use,
subject to any agreement made between her and her husband whilst they had separated

S. 25 then lays down that a separated wife, so long as she is separate from her husband, — is to be considered, as an
unmarried woman for the purpose of entering into contracts, for the purpose of wrongs and injuries (torts), and for
suing and berg sued in civil proceedings. The husband is not to be held liable in respect of any contract, or for any
act done (or not done, by her during the separation ’ However, if the husband has not paid to the wife, alimony that
he has been ordered to pay to her on separation. he becomes liable for necessaries supplied for her use.

C. REVERSAL OF DECREE OF SEPARATION (S. 26)

S 26 provides for a reversal of a decree of separation obtained ex parte, i.e. a decree obtained by one spouse in the
absence of the other. It lays down that a husband or a wife may present a petition to the Court which had passed
such a decree, praying that the decree may be reversed on the ground that it was obtained in his or her absence.
When the decree has been passed on the ground of desertion, it can also be shown to the Court that there was
reasonable excuse for the alleged desertion.

If the Court is satisfied, it may reverse the decree of separation passed by it earlier. However, such a reversal does
not affect the rights and remedies of third parties in respect of all acts of the wife done after the separation
decree but before its reversal.

The Nagpur High Court has observed that what S. 26 lays down is that when a decree for judicial separation
has been passed, and the respondent has, in fact, not appeared before the court, he may present a petition
under S. 26. In such a petition, he must state the reasons for his absence, i.e., how it happened that he did not
appear before the court, explaining satisfactorily the circumstances that gave rise to his absence. However,
this is not enough. He must also put forth circumstances and arguments showing that the decree of judicial
separation was wrongly passed. It is then the Court would review a circumstances and arguments placed before it,
and proceed to reverse or affirm the earlier decree. However, in coming to a conclusion,- the court would also
consider how far the absence of the petitioner was his own fault or was excusable, and whether he has taken
reasonably prompt steps to approach the court for relief. (Dalchand Kashiram V. Anna Razi. AIR. 1950 Nag. 160)
6. PROTECTION ORDERS

(Sections 27 to 31)

Ss. 27 to 31 of the Act contains a novel provision made for the protection of a deserted wife’s property.

A wife who has been deserted by her husband, and to whom S. 4 of the Indian Succession Act, 1865 (now. S. 20 of
the Indian Succession Act, 1925) does not apply. may apply to the Court, at any time after such desertion, for an
order to protect any property acquired by her, or of which she is possessed, and also property which she may
acquire. or become possessed of after such desertion, against her husband, or his creditors, or any person claiming
under him. (S. 27)

If the Court is satisfied that such wife was deserted without reasonable excuse, and that she is maintaining herself by
her own industry or property, it may pass an order protecting her earnings and other property from her husband and
other persons claiming under him, and from the husband’s creditors (S. 28)

Such an order can be varied or discharged on an application by the husband, or any person claiming under him, or
by any creditor of the husband, if the Court is satisfied that the desertion has ceased, or if there is any other good
reason to do so (S 29)

Under S.30. if the husband, or any person claiming under him, or his creditors, seizes or continues to hold the wife’s
property even after notice of any such order, he becomes liable (in a suit filed by the wife), not only to redeliver the
specific property to her, but also to pay her a sum equal to double its value. This is a salutary provision enacted
solely for the benefit of deserted wives, and deserves to be included in the other matrimonial statutes prevailing in
India

Lastly, S. 31 lays down the wife’s legal position when such an order is passed. It provides that, as long as such a
protection order remains in force, and she continues to be deserted, she is to be regarded, in all respects with regard
to her property. contracts and capacity to sue and be sued, to be in the same position as if she had obtained a decree
of judicial separation under the Act.
7. RESTITUTION OF CONJUGAL RIGHTS (Sections 32 & 33)

As the fundamental purpose and objective of a marriage is the cohabitation between husband and wife, all
matrimonial statutes in India contain provisions for restitution of conjugal rights, i.e. an order of the Court requiring
the spouses to continue to live together. Cohabitation means living together as husband and wife, and includes
mutual rights to each baler’s society, companionship and affection.

S. 32 of the Divorce Act provides that If either the husband or the wife has withdrawn from the society of the other,
without reasonable excuse. the other party may apply In the Court for restitution of conjugal rights. If the Court is
satisfied about the truth of the statements made in such a petition. and that there is no legal ground why such an
application should not be granted, it may decree restitution of conjugal rights.

It is further provided that anything which amounts to a ground for judicial separation or nullity of marriage, (under
the Act) would be a complete defence to such a petition (A reference may he made to earlier Chapters, where the
grounds for judicial separation and nullity of marriage have been discussed at length.)

”Withdrawal from society”

A lawful wedlock between a man and a woman imposes an obligation on both the spouses to live and cohabit with
each other. The expression. withdrawal from society, implies cessation of cohabitation as a voluntary act of one of
the spouses. The withdrawal from the society’ of a spouse amounts to withdrawal from the totality of conjugal
relationship, such as refusal to live together, refusal to give company to the other and refusal to have marital
intercourse. Thus, it is a total repudiation of marital togetherness.

It has been held, in an English case, that if the spouses are living together, mere refusal to have sexual intercourse
does not amount to withdrawal from the society of the spouse. (Weatherby v. Weatherby (1947) 1 Ai. E H 563)

As observed in another case, the Courts have power to enforce cohabitation, but have no power to enforce marital
intercourse. (Foster v Foster, 1790) 1 Hag Con.

In India, a question has arisen, in several cases, as to whether a wife’s refusal to give up a job, at the instance of her
husband, amounts to withdrawal from his society Answering the question in the affirmative. the Punjab High court
has observed that a wife’s first duty to her husband is ”to submit herself obediently to his authority”. The Court,
therefore held that wife’s refusal to resign her job would amount to withdrawal from the husband’s society. (Tirath
Kaur V. Kirpal Singh, A.I.R. 1964 Pun. 2-8)

Although the above view appears to be orthodox and outdated today. especially in light of modern circumstances,
where both husband and wife are equally free to take up jobs of their choice, the High Courts of Madras, Madhya
Pradesh and Rajasthan have also taken a similar view.

”Without reasonable excuse”

Under the Act, it is not enough that one spouse has withdrawn from the society of the other. In order to make S. 32
applicable it is also necessary that such withdrawal should be without reasonable excuse.

In several cases, it has been held that any act or conduct of a spouse which makes it impossible for the other spouse
to live with him (or her) amounts to reasonable cause or excuse -

Thus, for instance, the following have-been held to be reasonable cause or excuse far withdrawing from the society
of the spouse

(i) the husband insisting that his wile should eat meat and drink liquor:
(ii). persistent nagging of the wife by the husband’s parents;
(iii). acts of physical violence:
(iv) addiction to drink or drugs. accompanied by violent temper:
(v) Persistent undue familiarity with a person of the opposite sex:
(vi) living with another woman and having sexual relations with her.

Burden of proof

In petition filed for restitution of conjugal rights, the burden of proof is always on the petitioner (i.e. the person who
files such an application). He must succeed on the strength of his own case He cannot succeed only on the ground
that the defences of the respondent (i.e. the other spouse) have not been established. (Rebarani v. Ashit AIR. 1965
Cal. 52)

Constitutional validity

The constitutional validity of the provisions regarding restitution of conjugal rights were challenged before the
Andhra Pradesh High Court in Sareetha v. Venkatsubbaiah (AIR, 1983. A P 356). where the Court held that such
provisions are violative of the right of privacy and human dignity guaranteed by Article 19 of the Constitution. and
therefore, untra vires the Constitution

In the course of his judgment. Choudary -J observed as under ”A decree of restitution of conjugal rights constitutes
the grossest form of violation of an individual’s right to privacy. It denies woman her choice of whether, when and
how, her body is to become the vehicle for the procreation of another human being.’

With due respect to his Lordship, it appears that the judge considered the matter only from the angle of the wife,
overlooking the fact that this remedy can also be claimed against the husband. In a subsequent judgment (Harvinder
Kaur v. Harmander Singh, ALA. 1984 Del. 66). the Delhi High Court strongly dissented from the view of the
Andhra Pradesh High Court, and held that such provisions are valid and constitutional

This controversy has now been set to rest by a decision of the Supreme Court, which held that such a provision does
not violate any fundamental right guaranteed by the Indian Constitution, and is, therefore, valid. (Saroj Rani v.
Sudershan, A.I.R. 1984 S.C. 1562)

How a Decree for Restitution can be executed

There cannot be any specific performance of a decree of restitution of conjugal rights. Nor can such a decree be
executed by arresting the spouse who has wilfully disobeyed it. However, under the Civil Procedure Code, if a
spouse has wilfully failed to obey such a decree. his (or her)_property can be attached. Needless to say, this would
bring about some kind a financial pressure for the enforcement of such a decree.

Under me Civil Procedure Code, a provision is also made for periodic payment of money to the other spouse, if a
decree for restitution of conjugal rights is not complied with.
8. DAMAGES AND COSTS

(Sections 34 & 35)

The provisions of the Act regarding payment of damages and costs are contained in Section 34 and 35 of the
Divorce Act, have been deleted by the Amendment of 2001.

However, the following three provisions of the Act, which deal with payment of costs may be noted

(a) Under S 16, in suits filed for dissolution of marriage the High Court may order the costs of counsel, witnesses
and other costs to be paid the parties. or by one of or more of them. as it thinks fit, including a wife, if she has
separate property

(b) Under S. 49. when the petitioner is a minor, the petition can be filed only after his next friend gives an
undertaking in writing to be answerable for costs

(c) Lastly S. 55 lays down that no appeal can be filed only on the subject of costs
9. ALIMONY

(Sections 36 to 38)

This Chapter is discussed under the following four heads :

A. What is alimony
B. Alimony pendente life (S. 36)
C Permanent alimony (S. 37)
D Payment of alimony to the wife or her trustee (S. 38)

Each of these topics is discussed below in brief.

A. WHAT IS ALIMONY

The term alimony is used to describe the allowance granted by a Court to a woman who is not living with her
husband. The object of ordering such a payment is to provide the wife with a source of maintenance.

Alimony is of two types. Alimon pendente lite. (i.e. during the matrimonial litigation) is the alimony which the
Court directs the husband to pay to the wife during the pendency of the suit. Such alimony is, naturally, temporary in
nature, to be paid only until the legal proceedings are disposed of. The second type of alimony is permanent alimoy
which is granted by the Court when passing the decree ( for dissolution, nullity, restitution of conjugal rights, etc.)

In England, the expression alimony is no longer used in matrimonial proceedings, and has been replaced by the
concept of maintenance

B. ALIMONY PENDENTE LITE (S. 36) As seen above, alimony pendente lite or alimony pending the suit, is the
grant of an allowance which the husband is directed to pay to the wife as long as the matrimonial suit is before the
Court. In all legal systems, such an allowance is not a matter of right, but rests solely on the court’s discretion.
However, such discretion is not to be expiry out according to well-established principles.

An application can be made by the wife for expenses of the proceedings and for alimony during the pendency of any
matrimonial suit filed under the Act, whether by the husband or the wife. Such a petition is to be served on the
husband, and after hearing both the parties, the Court may pass an order for payment of .such expenses and for
payment of alimony pendente lite.

The rationale of the provision is to enable the wife to maintain herself until the Court passes an order in the pending
matrimonial petition.

It is now also provided (-by the Amendment of 2001-) that petitions filed for expenses of the proceedings and for
alimony pendente lite should be disposed of, as far as possible, within 60 days of the service of such a petition on the
husband.

In considering an application for alimony pendente lite, the Court must take into account all the relevant factors,
including the income of both the applicant (wife) and the respondent (husband).

Where the husband has no property or income, the Court would be justified in refusing to order any alimony
pendente lite. Thus, in one case where a husband was on six months leave of absence from India. without pay and
was in receipt of no other income and was possessed of no other property, the Court refused to direct payment of
any alimony pendent lite. (Fletcher v. Fletcher. 31 UP 82)

The Allahabad High Court has held that the fact that the wife can go and live with her father does not mean that she
cannot claim alimony pendente lite from the husband. (Joshi v. Ganga Devi, A.I.R. 130)

In such cases. the Court would also consider what is the wife’s own income. However, the fact that she is possessed
of ornaments would not disentitle her from claiming such alimony. (Kuriakose v. Kuriakose. A.I.R. 1958 Mad 340)
The Rajasthan High Court has rightly observed that the conduct of the parties often reflects their true motives, and
must always be taken into account when granting alimony (Parihar v. Parihar A.I.R. 1857 Raj. 52)

The Kerala High Court hat held that, even if a wife has independent means of income, she Can claim maintenance
pendente lite. (Mathew v. Kuruvilla, A.I.R. 1990 Ker. 262)

English Law

The Matrimonial Causes Act, 1965, gives a similar right of alimony pendente lite to a wife. The practice of English
Courts is generally to grant such alimony, unless she has means of her own. So also, a wife who is guilty of
adultery is not granted such alimony

Interestingly, the English Statute also contains a provision for payment of alimony pendente lite to a husband,
where a wife has filed a petition for divorce or judicial separation on the ground of the husband’s insanity.

C. PERMANENT ALIMONY (S. 37)

When the Court passes the final decree for dissolution of a marriage or judicial separation, it may order the husband
to pay to the wife, a gross sum of money, or an annual amount for any term not exceeding the wife’s life, as the
Court thinks reasonable For this purpose, the Court may direct that proper documents be executed by all necessary
parties.

In passing such an order, the Court must have regard to

(a) the wife’s fortune (i.e. property), if any:

(b). the ability of the husband: and

(c ). the conduct of both the parties

In such cases the Court can also pass an order directing the husband to pay to the wife, such monthly or weekly
sums for her maintenance and support, as the Court may think reasonable.

It for any reason, the husband afterwards becomes unable to make the payments to his wife. the Court can
discharge or modify the order, or even suspend it temporarily wholly or in part and again revive the same later on.
as it deems fit

The Court may also afterwards increase the amount payable by the husband on a monthly or weekly basis. if
circumstances exist to justify a larger amount Payable as alimony to the Wife- (Iswarayya v. Iswarayya. AIR 1930
Mad, 154)

In Attwood v Attwood (1968 R 591), the Court of Appeal in England laid down the following general principles to be
kept in mind when determining the quantum of permanent alimony to be awarded to the wife:

(i).Whether, during cohabitation, the wife and the children shared with the husband, a living appropriate to their
income
(ii) In cases where the cohabitation was disrupted by the husband’s matrimonial offence, the subsequent standard
of Living-of the wife and children should not suffer, as far as possible.
(iii) Generally speaking the wife and the children should not be relegated to a significantly lower standard of living
than that of the husband.
(iv) The reasonable expenses of each party must be taken into account.
(v) The wife’s income, and even her potential earning capacity, must always be kept in mind.
(vi) The Court’s Order must not depress the husband below the subsistence level.
Difference between alimony pendente lite and permanent alimony

Alimony pendente lite is granted to the wife during the pendency of the matrimonial proceedings, and before the
final order is passed, whereas permanent alimony is directed to be paid when the final order is made in such
proceedings.

Moreover, alimony pendente lite is to be paid until the final order is passed in the matrimonial suit. Permanent
alimony, however, is payable throughout the lifetime of the wife.

D. PAYMENT OF ALIMONY TO THE WIFE OR HER TRUSTEE (S. 38)

In all cases of grant of alimony, the Court may direct the amount to be paid directly to the, wife or to a trustee on her
behalf. Such a trustee must be approved by the Court, which can impose any terms or restrictions on him. The Court
can also appoint a new trustee from time to time, if it deems-it-expedient to do so.
10. SETTLEMENTS

(Sections 39 & 40)

Under S. 39 of the Act, the Court was vested with the power to order a settlement of the wife’s property for the
benefit of the husband, or the children, or both. However, this section has now been deleted by the Amendment of
2001.

Under S. 40, the Court may, before passing a decree for dissolution or nullity, inquire into the existence of anti-
nuptial (Le. before marriage) or post-nuptial (i.e. after marriage) settlements, and pass orders. as regards the property
settled, for the benefit of the husband, or of the wife, or of the children, or of the children and parents, as the Court
may deem fit. The only restriction is that no order can be passed for the benefit of the parents at the expense of the
children.

As observed by Bucknill .1, the object of these provisions is not to punish the wife, directly or indirectly. The
principle on which the Court should be guided in exercising its discretion is mainly the amount of pecuniary
prejudice caused to the husband and children by the breaking away of the wife, with her property, from the common
home. (Matheson V. Matheson, (1935) 104 UP 59)

In Woodward v. Woodward (AIR. 1938, AL), it was held that, although a guilty party can apply under S. 40 for a
variation of the order, the Court should not allow such an application, unless, special circumstances exist for doing
so.

[Note : S. 40 is based on the Matrimonial Causes Act in force in England. There is no corresponding provision in
India, either in the Hindu Marriage Act or in the Special Marriage Act]
11. CUSTODY OF CHILDREN

(Sections 41 to 44)

Custody of children is a delicate, but unavoidable, matter involved in most matrimonial proceedings. and normally.
Courts exercising matrimonial jurisdiction have the power to pass orders concerning the custody and maintenance of
the children of the marriage.

S. 41, therefore, lays down that, in any suit for judicial separation, the Court may pass orders, as it deems fit, as
regards the custody, maintenance and education of the minor children whose parents’ marriage is the subject-matter
0 the suit. Such orders may be in the nature of interim (i e. temporary) orders, or may be a part of the decree itself. If
found necessary, the Court may also direct proceedings to be taken for placing such children under the protection of
the Court

It is now provided (by the Amendment of 2001) that such an application should be disposed of, as far as possible,
within 60 days from the date of service of the notice on the respondent.

Such orders can also be made after a decree of judicial separation has been passed by the Court. (S. 42)

Likewise. any such order can also be passed in a suit for obtaining a dissolution of marriage or a decree of nullity
of marriage. Such orders can also be interim orders or may be part of the final decree itself. (S. 43)

A provision is also made whereby even after a final decree for dissolution of marriage or a decree of nullity of
marriage, an application to the Court can be made at any time, for the custody, maintenance and education of a child
(whose parents’ marriage was the subject-matter of such a decree) or for placing such a child under the protection
of the Court. (S. 44)

The person to whom the custody of a child is given can also be directed not to remove such child outside the Court’s
jurisdiction (Duncan v. Duncan, A.I.R. 1939 Rang. 352). Thus, for instance, at the time of granting custody to a
child’s mother, the Court can lay down that she shall not take the child out of Mumbai without the Court’s
permission.

In an English case decided by the House of Lords, it was held that although the word ”children” normally means
legitimate children, the word should be given a wider meaning in custody cases, and the term should also cover
illegitimate children of the marriage. (Galloway v. Galloway 1995 3 All F.F. 429).

As far as interim orders are concerned, the Courts are normally inclined not to disturb the prevailing status quo, until
the final orders are passed. However, in all such matters, the interest of the child is the paramount consideration.
(Boy v. Boy 1948 2 All E.R. 436)

The conduct of the parties is often a consideration, which weighs heavily in the mind of the Court, when considering
custody cases. However, in one English case, it was observed that just because a woman has committed adultery
once, the Court cannot conclude that she is, therefore, not a fit person to look after the child. (Allen v. Allen, 1948 2
All E.R. 413)

It is to be remembered that no hard and fast rules can be laid down in matters relating to the custody of children, and
the Court has to exercise its discretion according to the facts and circumstances of each case. The future and the
career of the child are important matters to be considered in deciding the parent to whom ’the child’s custody is to
be given by the Court.

The general rule is that the innocent party is entitled to the child’s custody, but an exception is made where the
welfare of the child requires the child to be kept in the custody of the parent who is guilty of a matrimonial offence.
The interest and welfare of the child are always the paramount consideration in all such cases. As observed by
Hardy MR., ”the benefit and interest of the infant is the paramount consideration-and not the punishment of the
guilty spouse.” (Stark v. Stark, 1910 P 190)
If the child is old enough to form an intelligent opinion, the child’s opinion should also be given due weight in
deciding which parent shall have custody of the child. (Ammal v. Ammal, AIR. 1924 Mad. 873)

Even when one of the parents is given the custody of a child, the other parent may be given ”visiting rights”, as for
instance, the opportunity to spend every Sunday with the child. (Sarin v Suman, A.I.R. 1984 H.P 1)

If justice and the interests of the children so demand, the Court may give the custody of the children to a third party
particularly when both the parents are unfit to be entrusted with the care of the children. (Marsh v. Marsh, 1858 28
UP 13)
 12. PROCEDURE
( Sections 45 to 56)

This Chapter is discussed under the following ten heads -

A Code of Civil Procedure to apply (S. 45)

B. Forms of Petitions (Ss. 46 & 47)

C. Suits by lunatics and minors (Ss. 48 & 49)
D. Service of Petition (S. 50)
E. Mode of taking evidence (S. 51)
F. Competence of spouses to give evidence as to cruelty or desertion (S. 52)
G. Hearings in camera (closed doors) (S. 53)
H. Power to adjorn (S. 54)
I. Enforcement of orders and decrees (S. 55)
J. Appeals (Ss 55 & 56)

Each of the above topics is discussed below in brief

A. CODE OF CIVIL PROCEDURE TO APPLY (S. 45)

All proceedings under the Act are regulated by the Code of Civil Procedure, subject to any specific provision to the
contrary in the Divorce Act

In other words, the Code of Civil Procedure, 1908, will govern all court proceedings under the Divorce Act. If,
however, there is any specific provision in the Act, that provision, and not the one under the Civil Procedure Code,
would apply to the matrimonial proceedings.

It has been held that the Divorce Court has the power to restrain a respondent husband by injunction from parting
with his own property, to defeat the claims of his wife to alimony or permanent maintenance already ordered
(Jagger v. Jagger)

B. FORMS OF PETITIONS (Ss. 46 & 47)

The Schedule to the Divorce Act sets out various forms to be used, — with such variations as the circumstances may
require, — for all proceedings under the Act. (A reference may be made to the fourteen different forms given in the
last Chapter of the book.)

All petitions filed under the Act are required to be verified by the petitioner, or some other competent person, in the
prescribed manner, and may be referred to as evidence in the course of the hearing. (A reference may be made to the
form of verification given under Form No. 1 in the last Chapter.)

When a petition is filed for a decree of dissolution of marriage or nullity of marriage or judicial separation, the
petition must state that there is no collusion or connivance between the petitioner and the other party to the marriage.

C. SUITS BY LUNATICS AND MINORS (Ss. 48 8e49)

If the husband or the wife is a lunatic or an idiot, any suit under the Act (except a suit for restitution of conjugal
rights) may be filed. on his (or her) behalf, by the Committee or some other person entitled to his (or her) custody

If the petitioner is a minor, he can sue by his next friend to be approved by the Court, and such petitions can be
presented only after the next friend has given an undertaking in writing to be answerable for the costs of such a suit.
Such an undertaking is to be filed in the Court. and the next friend becomes liable to pay costs (if any) as if he was
the plaintiff in an ordinary suit.

D. SERVICE OF PETITION (S. 50)

Every petition under the Act is to be served on the party who may be in or outside India. in such manner as the High
Court may direct. by a general or special order

In a fit case. the Court may dispense with service of a petition, if it deems it necessary or expedient to do so

E. MODE OF TAKING EVIDENCE (S. 51) In all proceedings under the Act, the witnesses are to be examined
orally in the Court, and any party can offer himself or herself as a witness. This examination of a party’s witness by
the party itself is known as examination-in-chief Instead of deposing orally in the Court, an affidavit of the witness
can also be filed This affidavit would then constitute the examination-in-chief

After that, the opposite party has a right to put oral questions to such a witness. This is known as cross-examination.

Thereafter, the party who brought the witness may wish to ask further questions to his witness (generally, to clarify
something said in the cross-examination). This is known as re-examination.

F. COMPETENCE OF SPOUSES TO GIVE EVIDENCE AS TO CRUELTY OR DESERTION (S. 52)

S. 52 lays down that in cases where a husband or a wife has filed a petition for dissolution of the marriage on the
ground of adultery cruelty or desertion, the husband and the wife are competent to give evidence relating to such
cruelty or desertion in the Court

G. HEARINGS IN CAMERA (CLOSED DOORS) (S. 53)

Of all judicial proceedings, the dirtiest linen washed in public and the greatest amount of mud slinging is to be found
in matrimonial proceedings In order to preserve privacy in such cases and to minimize embarrassment to all
concerned, all matrimonial laws contain a provision for proceedings to be conducted in camera (i.e. behind closed
doors, where members of the public are not allowed)

S. 53 of the Act, therefore, lays down that, if the Court thinks fit, any proceedings under the Indian Divorce Act may
be conducted — wholly or in part — behind closed doors.

H. POWER TO ADJOURN (S. 54)

The power to adjourn a case to a future date is an inherent power conferred on all Courts, and S. 54 clarifies that the
Court may, from time to time, adjourn the hearing of any petition held under the Act It may also require further
evidence thereon, if it deems it fit to do so

I. ENFORCEMENT OF ORDERS AND DECREES (S. 55)

S 55 provides that all orders and decrees passed by a Court under the Divorce Act can be enforced in the same
manner as orders and decrees of the Court made in the exercise of its original civil jurisdiction are enforced.

J. APPEALS (Ss. 55 & 56)

All decrees and orders of the Court passed under the Act can be appealed against, subject to the laws, rules and
orders for the time being in force

However, no appeal can be filed only as regards the costs of the proceedings (S. 55)

Under S 56. any person can file an appeal in the Supreme Court—

(a) from any decree (except a decree nisi) or order under the Act passed by a High Court on appeal or otherwise:
(b) from any decree (except a decree nisi) or order made by a High Court in the exercise of its original jurisdiction,
from which an appeal does not lie to the High Court
In such cases, it is. however, necessary that the High Court should certify that it is a fit case for appear to the
Supreme Court.
13. RE-MARRIAGE

(Sections 57 to 59)

Formerly, it was provided that when the High Court had passed or confirmed a dissolution decree, and no appeal
was filed against such a decree, the parties were free to re-marry after a period of six months from the date of the
decree.

Where such an appeal was filed, and such appeal was dismissed, or if the appeal declared the marriage to be
dissolved, the parties had similarly to wait for a period of six months from the date of the appellate decree before
they could marry again. It was presumed, in such cases, that no appeal had been filed before the Supreme Court.

This waiting period (of six months) appeared to have been made in the interests of public policy and morality, — to
discourage parties to a marriage to obtain a ”quickie” divorce, and then enter into fresh matrimony instantly.

S. 57 has now been amended by the Amendment of 2001. The six-month waiting period had been abolished, and
it is now provided that it would be lawful for either party to the marriage to marry again in cases where a Decree for
dissolution or for nullity of the marriage has been passed, and —

(i) the time for filing an appeal has expired without an appeal being filed in any court, including the Supreme Court:
or

(ii) such an appeal has been presented. but also been dismissed. and the decree or dismissal has become final.

Status of a re-marriage in contravention of S. 57

The interesting question which arises under S. 57 is whether a re-marriage which is entered into within the six-
month period (provided earlier) or within the appeal period (under the present law) would or would not be valid.

The High Courts of Allahabad, Calcutta and Madras have taken a view that a marriage contracted in violation of S
57 would be void

The question was then considered by the Supreme Court in Chandra Mohini v. Avinash Prasad (AIR. 1967 S.C.
581), under the corresponding provision of the Hindu Marriage Act. The facts of the case were briefly as follows :

A decree of divorce was passed by the District Court, and the same was upheld by the High Court. Immediately
thereafter, the husband re-married. The wife, however, filed a Special Leave Petition (SLP) in the Supreme Court,
and the leave was granted The husband contended that the Supreme Court ought to revoke such leave, as he had re-
married in the meantime. Refusing to do so, the Court observed that it was for the husband to make sure that no
SLP had been filed in the Supreme Court, and that he could not deprive the wife of her right to file the SLP by
marrying immediately after the decree of the High Court However, in this case, the Supreme Court did not rule
whether the husband’s marriage was void or not.

When the question arose once again before the Supreme Court in Lila Gupta v. Laxmi Narain (AIR. 1978 S.C.
1351), Pathak J. made certain observations which are very relevant, — although they are Wirer Leaning heavily on
similar provisions in English Law and decided English cases, Pathak J. observed that the time-limit placed on the
right to re-marry i.e. the expiry of the appeal-period, has to be regarded as a qualification on the right to re-merry,
and a remarriage in violation of this time period would make the marriage void. In this view, which appears to be
the correct view the dissolution decree has a provisional or tentative character, and becomes final only when no
appeal has been presented, or an appeal is presented and is dismissed

Provisions regarding English Clergymen & Ministers (S. 58 & 59)

It is expressly provided that no clergyman in Holy Orders of the Church of England can be compelled to solemnize
the marriage of any person whose former marriage was dissolved on the ground of his (or her) adultery. Likewise,
no such person can be exposed to any suit, penalty or censure for solemnizing or refusing to solemnize the marriage
of any such person, (S. 58)

Lastly, if any Minister of a Church (or a Chapel of a Church) refuses to perform such a re-marriage, he must permit
any other Minister in Holy Orders of the said Church, entitled to officiate within the diocese, to perform such
marriage service in such Church or Chapel. (S. 59)
14. MISCELLANEOUS

(Sections 60 to 62)

This Chapter is considered under the following three heads :

A. Validity of Separation Decrees and Protection Orders (S. 60)

B. Bar of suit for criminal conversation (S 61)
C. Power to make rules (S. 62)

Each of the above topics is briefly discussed below.

A. Validity of Separation Decrees and Protection Orders (S. 60)

S. 60 provides that every decree for judicial separation and every order for protection of property, obtained by a wife
under the Act, is to bp deemed to be valid, so far as may be necessary, for protecting any person dealing with the
wife, until such decree or order is reversed or discharged.

Even if such decree or order is reversed, discharged or varied, it does not affect any rights or remedies which any
person would otherwise have had in respect of any contracts or acts of the wife. entered into or done after the date of
the decree or order, but before the date of its reversal, discharge or variation.

Likewise, an indemnity is given to all persons making any payment to the wife without notice of the reversal,
discharge or variation of such decree or order.

B. Bar of suit for criminal conversation (S. 61)

”Criminal Conversation” is a term used in English law to denote a common law action in which a husband files a
suit to recover damages from his wife’s adulterer

S. 61 clarifies that, after the Act came into force, no person competent to present a petition under S. 2 or S. 10 of the
Act, can maintain a suit for criminal conversation with his wife.

However, this section is no bar for the prosecution and punishment of the adulterer under S. 497 of the Indian Penal
Code (Bwye v Kirk. A.I.R 1928 Lab. 50)

C. Power to make rules (S. 62)

S. 62 empowers the High Court to make rules under the Act, as it may consider expedient from time to time Such
rules may also be altered or added to, from time to time.

All such rules —

(a) should be consistent with the provisions of the Act and the Civil procedure Code; and
(b) must be published in the Official Gazette.

If a rule made under S. 62 is not consistent with the Act, it will not be valid. (Friedlander v. Friedlander 51 B.L R.
129)
Chapter 1

PRELIMINARY & DEFINITIONS (Sections 1 to 3)

Preliminary

Prior to 1872. the law relating to solemnization of Christian marriages was scattered over two Acts of the English
Parliament and three Acts of Indian legislatures. It was therefore thought expedient to consolidate and amend the
law, which finally took the shape of the Indian Christian Marriage Act, 1872. The object of this legislation was to
codify the existing law into a smaller compass and at the same time simplify and modify the same wherever
necessary.

The Act applies to the whole of India — except those territories which before 15’ November, 1956 were comprised
in:

(i) the State of Manipur,

(ii) the State of Jammu & Kashmir, and
(iii) the erstwhile State of Travancore-Cochin

Definitions

Various terms and expressions used in the Act are defined by S. 3 of the Act as follows .

A ”Christian” is a person professing the Christian religion. The expression ”Indian Christians” includes the
Christian descendants of natives of India converted to Christianity as well as such converts themselves

The High Court of Orissa has held that persons who are followers of the Christian religion are ”Christians” and that
baptism is not a condition precedent for professing the Christian religion. Hence, a person who is not baptized can
be a ”Christian” for the purposes of the Indian Christian Marriage Act. (David v. Nilamuni Devi, AIR 1953 On 10)

Conversely, if a person does not profess the Christian faith although he might have been baptized as a child, he
cannot be regarded as a Christian. (Maha Ram v. Emperor, AIR 1918 All 168)

As observed in one case, if the baptism ceremony is conducted as an empty formality preceding the marriage
ceremony, and that person has no faith in Christianity and the Christian way of life, he cannot be regarded as a
Christian. (Sujatha v. Jose Augustine, 1994 2 KLT 4)

A Full Bench of the Madras High Court has held that a person continues to be a Christian, even if he is ex-
communicated, so long as he continues to profess the Christian faith. (Pakian Salomon V. Chelliah Pillai, AIR 1924
Mad 18)

The Allahabad High Court has observed that only a person who, in fact, professes the Christian religion is a
Christian. Mere facts like dressing up as a Christian or attending a Christian school or being baptized as an infant
are not sufficient to treat him as a Christian. (Emperor v. Maha Ram, 40 All 393)

”India” means the territories to which the Indian Christian Marriage Act extends. (See above.)

A ”minor”, for the purposes of this Act, means a person who has not completed the age of 21 years and who is not a
widow or a widower.

The word ”church” includes any chapel or other building generally used for public Christian worship.

’Church of England’ and ”Anglican” mean and apply to the Church of England as established by law.

’Church of Scotland’ means the Church of Scotland as established by law

”Church of Rome” and ”Roman Catholic” mean and apply to the Church which regards the Pope of Rome as its
spiritual head,

”Registrar-General of Births, Deaths and Marriages” means a Registrar-General of Births. Deaths and Marriages
appointed under the Births, Deaths and Marriages Registration Act, 1886.
Chapter 2 REQUISITES OF A CHRISTIAN

MARRIAGE

This Chapter is discussed under the following two heads :

A Persons who can solemnize Christian marriages (Ss. 4 to 9)
B Time and place for solemnization of Christian marriages (Ss. 10 & 11)

A. PERSONS WHO CAN SOLEMNIZE CHRISTIAN MARRIAGES

(Sections 4 to 9)

S 4 of the Act declares that every marriage where one of the persons is a Christian, or where both persons are
Christians, shall be solemnized III accordance with the provisions of S. 5 of the Act (-see below-) Any marriage not
solemnized in accordance with such provisions is declared to be void

It is dear that S. 4 applies when one of the spouses is a Christian and the other is, say. a Hindu, and the marriage is
solemnized under the Indian Christian Marriage Act. However, if a Christian marries a Hindu under the Special
Marriage Act, the marriage cannot be said to be void on the ground that it did not comply with Ss. 4 and 5 of the
Indian Christian Marriage Act. (A. A. Balasundaram v. Vijaya Kumari, 1991 Cr L. J. 2254)

The Madras High Court has pointed out that compliance with Ss. 4 and 5 of the Act is mandatory for the validity of
a marriage under the Act Even if there was an earlier custom to the contrary, the law makes it clear that
solemnization of a Christian marriage can only be in accordance with the Act — and not in any other manner.
Furthermore, both S. 4 and S. 5 of the Act contemplate the solemnization of a marriage and not a written contract of
marriage. Thus, where a document was executed by the parties recording that they had lived together for six months
as husband and wife, that they were in love with each other and that they were recording this relationship by
executing the contract, the court held that they could not be said to be married. The deed in question could at best be
regarded as evidence of cohabitation, but not as evidence of solemnization of a marriage between the two. (A.
Sirvadam Samuel Nadar v. Raja Jyothi, 121 Mad. L. W. 78)

S. 5 of the Act then provides that a marriage under the Act can be solemnized in India —

(a) by any person who has received episcopal ordination, provided that the marriage is solemnized according to the
rules, rites, ceremonies and customs of the Church of which he is a Minister;

(b) by an Clergyman of the Church of Scotland, provided that such marriage is solemnized according to the rules,
rites, ceremonies and customs of the Church of Scotland;

(c) by an Minister of Religion licenced under the Act to solemnize marriages,

(d) by, or in the presence of, a Marriage Registrar appointed under the Act

(e) by any person licenced under the Act to grant certificates of marriage between Indian Christians,

Where a marriage was allegedly solemnized between a Christian woman and a Muslim man and it was not shown
that it was solemnized as per the provisions of the Act, it was held that such a ”marriage” was void and the Christian
wife was therefore not entitled to any maintenance. (Syed Ahmad Sheriff v Rajinamani, 1988 (2) HLR 615)

The Orissa High Court has held that the Act does not lay down that a marriage between Indian Christians can be
proved only by affirmatively establishing that the provisions of S. 5 were complied with or by producing a marriage
certificate issued under the Act The court can admit in evidence matters like admissions of the spouses themselves,
evidence of eye-witnesses who were present at the marriage ceremony. subsequent conduct of the parties cohabiting
as husband and wife and other relevant facts. If a suit is filed for a declaration that the marriage was invalid, the
burden will be on the plaintiff to show that the marriage was not solemnized by any of the persons listed in S. 5 of
the Act. (David v. Nilamoni Devi, AIR 1953 On 10)
S. 6 empowers the State Government to grant licences to Ministers of Religion to solemnize marriages within the
territories under its jurisdiction by Notification in the Official Gazette. By a like Notification, the State Government
can also revoke such licences.

Under S. 7, the State Government may appoint one or more Christians to be the Marriage Registrar or Marriage
Registrars for any district within the State. If two or more Marriage Registrars are appointed in the same district, one
of them is to be appointed as the Senior Marriage Registrar. However. if there is only one Marriage Registrar in a
district and he is either absent from the district or is ill or when his office is vacant, the Magistrate of that district
must officiate as the Marriage Registrar during such absence, illness or temporary vacancy.

Lastly, the State Government is also authorised to grant a licence to any Christian, authorising him to grant
Certificates of Marriage between Indian Christians. Any such licence can be revoked by the authority which granted
it. Every grant or revocation of a licence is to be notified in the Official Gazette. (S. 9)

B. TIME AND PLACE FOR SOLEMNIZATION OF CHRISTIAN MARRIAGES

(Sections 10 & 11)

Ss 10 and 11 of the Act contain provisions governing the time and place at which Christian marriages may be
solemnized.

S 10 lays down that every marriage under the Act shall be solemnized between 6 a.m. and 7 p.m., except where —

(a) a Clergyman of the Church of England solemnizes a marriage under a special licence permitting him to do so at
any hour not falling between 6 a.m. and 7 p.m. Such a licence should be issued under the hand and seal of the
Anglican Bishop of the diocese or his Commissary,
(b) a Clergyman of the Church of Rome solemnizes a marriage not falling within the prescribed timings (above),
when he has a general or special licence to do so from the Roman Catholic Bishop of the Diocese or Vicariate in
which such a marriage is solemnized or from such other person as the said Bishop has authorised to grant such a
licence: or
(c) a Clergyman of the Church of Scotland solemnizes a marriage according to the rules, rites, ceremonies and
customs of the Church of Scotland.

S. 11 of the Act then lays down that no Clergyman of the Church of England can solemnize a marriage in any place
other than a church where worship is generally held according to the forms of the Church of England —

- unless there is no such Church within a distance of five miles, or

- unless the Clergyman has received a special licence to do so under the hand and seal of the Anglican Bishop of
the Diocese or his Commissary.

In such cases, an additional fee can be charged for such a licence.

[Note : 1. For the procedure to be followed when a Christian marriage is solemnized by a Marriage Registrar, see
Chapter 5.
2. The conditions on which a certificate can be issued in respect of a christian marriage are laid down in S.60,
discussed in Chapter 6, to which a reference may be made.]
Chapter 3

MARRIAGES SOLEMNIZED BY MINISTERS OF RELIGION (Sections 12 to 26)

Under S. 12 of the Act, if a Christian marriage is to be solemnized by a Minister of Religion licenced to solemnize
marriages under the Act, one of the parties to the intended marriage must give notice in writing in the prescribed
form (given in the First Schedule to the Act) to the Minister of Religion whom such party desires to solemnize the
marriage, stating therein -

(a) the name, surname and the profession or condition of the parties to the intended marriage,
(b) the dwelling-place of both such parties:

(c) the time during which each of them has dwelt there; and

(d) the church or private dwelling in which the marriage is to be solemnized.

If either person has dwelt in the place mentioned in the notice for more than one month, such fact is also to be stated
in the notice

If the persons intending to get married desire that the marriage be solemnized in a particular church and if the
Minister of Religion to whom the notice is delivered is entitled to officiate in that church, he must cause the notice
to be affixed in a conspicuous part of that church. If. however, he is not entitled to so officiate, he must either return
the notice to the person who gave it or deliver the notice to some other Minister entitled to so officiate, who in turn
must cause the notice to be affixed as above. If such a marriage is intended to be solemnized at a private dwelling,
the Minister of Religion, on receiving the notice, must forward it to the Marriage Registrar of that district who must
then affix the same in a conspicuous place in his own office. (Ss. 13 & 14)

If one of the persons of the intended marriage is a minor. the Minister receiving the notice must (unless he returns
the notice, as stated above) send a copy of the notice to the Marriage Registrar of that district or to the Senior
Marriage Registrar, if there are more than one Marriage Registrars in that district. The Marriage Registrar or the
Senior Marriage Registrar, as the case may be, must then affix the notice in a conspicuous place in his office. When
the Senior Marriage Registrar receives such a notice, he must send copies thereof to every other Marriage Registrar
in the same district, who must likewise publish the notice in the same manner. (Ss. 15 & 16)

Thereafter, one of the parties to the intended marriage must personally appear before the Minister and make a
solemn declaration-

(a) that he or she believes that there is no impediment of kindred or affinity - or any other lawful hindrance
- to such marriage; and

(b) in case one party is. or both parties are minors, that the consent required by law has been obtained or that there is
no person in India having authority to give such consent.

It may be noted that, the minor’s father, if alive, is the only person who can give such consent. If the father is dead,
then the guardian of the minor, and if there is no guardian, then the mother of the minor can give such consent This
consent is mandatory, unless there is no person resident in India who is authorised to give it. (It is rather strange that
a guardian is preferred over the mother in this regard.)

Once the above declaration is made, the party giving the notice can call upon the Minister to issue a certificate that
notice has been given and the declaration has been made, and such a certificate is then issued However, no
certificate can be given —

(i) before the expiry of four days from the date of receipt of the notice or
(ii) if some lawful impediment is shown to exist; or
(iii) it the issue of the certificate is forbidden by any person authorised under the Act.

Any person whose consent is required (as above) can give a notice in writing to the Minister, prohibiting the issue of
the certificate. If such a notice is received, the Minister cannot issue the certificate — or solemnize the marriage —
until he has examined the notice of prohibition received by him and is satisfied that the person seeking to prohibit
the marriage has no lawful authority to do so or until the prohibition notice is withdrawn by the person who gave it.

Under S 22, when either party to an intended marriage is a minor and the Minister is not satisfied that the consent of
the proper person (as above) has been obtained, he cannot issue the certificate until fourteen days have expired from
the date he received the notice of the intended marria2e. (It is submitted that S. 22 has become meaningless today in
view of the provisions of the Prohibition of Child Marriage Act, 2006, which prescribe the minimum age of
marriage for a male (21 years) and a female (18 years)]
The certificate issued by the Minister has to be in the form prescribed by the Second Schedule to the Act or to the
like effect. It is only after this certificate is issued, that the marriage can be solemnized according to such form or
ceremony as the Minister thinks fit to adopt, in the presence of at least two witnesses (excluding the Minister
himself). If, however, the marriage is not solemnized within two months from the date of the Minister’s certificate,
such certificate and all other related proceedings become void, and no person can proceed to solemnize the marriage
until a new notice has been given and a fresh certificate has been issued on such a new notice. In other words, once
the period of two months expires, the process has to start again from Step One.
Chapter 4

REGISTRATION OF MARRIAGES SOLEMNIZED BY MINISTERS OF

RELIGION (Sections 27 to 37)

Ss. 27 to 37 of the Act deal with the registration of all marriages solemnized in India between two persons, one or
both of whom profess the Christian religion, except marriages solemnized under Chapters 5 or 6. These provisions
can be summarised as under.

Registration of marriages solemnized by Clergymen of the Church of England

Every Clergyman of the Church of England must keep a register of marriages and must enter therein (in the form
prescribed by the Third Schedule to the Act) every marriage which he solemnizes under the Act. He must also send
(in duplicate), four times in a year, entries contained in the register of marriages solemnized at any place where he
has any spiritual charge, to the Registrar of Archdeaconry to which he is subject or within the limits of which such
place is situated Such quarterly returns must contain all the entries of marriages contained in the register for the
periods —

(i) 1st January to 31st ’ March

(ii) 1st April to 30th June
(iii) 1st July to 30th September
(iv) 1st October to 31st December.

Such entries are to be sent within two weeks from the expiry of each of the above quarters. On receipt thereof, the
Registrar must send one copy thereof to the Registrar-General of Births. Deaths and Marriages. (Ss. 28 & 29)

Registration of marriages solemnized by Clergymen of the Church of Rome

Likewise, every marriage solemnized by a Clergyman of the Church of Rome is to be registered according to the
form prescribed by the Roman Catholic Bishop of the Diocese or Vicariate in which such marriage is solemnized.
Quarterly returns of all the entries are also to be forwarded to the Registrar-General of Births, Deaths and
Marriages. (S. 30)

Registration of marriages solemnized by Clergymen of the Church of Scotland

Every Clergyman of the Church of Scotland must keep a register of marriages and register therein, in the tabular
form given in the Third Schedule to the Act, every marriage solemnized by him under the Act Quarterly returns are
also to be forwarded by him to the Registrar-General of Births. Deaths and Marriages through the Senior Chaplain
of the Church of Scotland. (S. 31)

Registration of marriages by a person who has received episcopal ordination

Every marriage solemnized by a person who has received episcopal ordination, but who is not a Clergyman of the
Church of England or the Church of Rome or a Minister of Religion licenced under the Act to solemnize marriages,
must be registered in duplicate by the person solemnizing the marriage immediately after such solemnization. The
marriage is to be registered in a marriage register book to be kept by him in the format given in the Fourth Schedule
to the Act and also in a certificate attached to the marriage register book as a counterfoil. Every such entry. in both
the certificate and the marriage register book is to be signed by the person solemnizing the marriage and by both the
parties to the marriage and must be attested by two credible witnesses (other than the person solemnizing the
marriage) who were present at the solemnization of such a marriage (Ss 32 and 33)

The person solemnizing the marriage must then separate the certificate from the marriage register book and send it,
within one month from the date of the marriage, to the Marriage Registrar of the district in which the marriage was
solemnized, or to the Senior Marriage Registrar, if there are more than one Marriage Registrars in that district. Such
Registrar must then cause the certificate to be copied in a book kept by him for this purpose. Every month, he must
also send all the certificates which he has received during the month to the Registrar-General of Births, Deaths and
Marriages.
Chapter 5 MARRIAGES SOLEMNIZED BY A MARRIAGE REGISTRAR (Sections 38 to 59)

S. 38 of the Act provides that when a marriage is intended to be solemnized by, or in the presence of. a Marriage
Registrar, one of the parties to the intended marriage must give a notice in writing in the prescribed form to the
Marriage Registrar of the district within which the parties reside. On receipt of such a notice, the Marriage Registrar
causes a copy thereof to be affixed in some conspicuous place in his office. The said Registrar must also file all such
notices and keep them with the records of his office. Additionally he must enter a true copy of all the notices in a
book called the Marriage Notice Book. (S. 40) When such a book is filled up, he must send it to the Registrar-
General of Births. Deaths and Marriages to be kept by the latter with the other records of his office (S .55)

The party by whom the notice was given can then make an oath (as explained below) and request the Marriage
Registrar to issue a certificate of such notice If no lawful impediment is shown as to why such a certificate should
not be issued, the Marriage Registrar can issue the certificate if four days have expired after receipt of the notice. If,
however, it appears that one of the parties to the intended marriage is a minor, the certificate can be issued only if
fourteen days have expired after receipt of the notice. If, in such a case, the parties wish to marry in less than
fourteen days, if both the parties reside in Mumbai. Chennai or Kolkata, they may apply to the High Court with a
prayer that the court should direct the Marriage Registrar to issue the certificate before the expiry of fourteen days

Such a certificate cannot be issued by the Marriage Registrar unless one of the parties to the intended marriage
personally appears before the Marriage Registrar and makes an oath -

(a) that he or she believes that there is no impediment of kindred or affinity or any other lawful hindrance to such a
marriage,
(b) that both parties have had their usual place of abode within the district of the Marriage Registrar, and
(c) if either party is, or both the parties are, minor. — that the required consent to such a marriage has been obtained
or that there is no person in India who is authorised to give such consent.

As regards persons who are authorised to give consent under clause (c) above, as seen in an earlier Chapter. the
father, if alive, is the only person who can give such consent. If, however, the father is dead, the guardian of the
minor, and if there is no guardian, the mother of the minor can give such ci3nsent.

However, if the person whose consent is necessary is of unsound mind or if such a person (not being the father)
withholds such consent without just cause, the parties to the intending marriage may file a petiton before a Judge of
the High Court if the person whose consent is required resides in Mumbai, Chennai or Kolkata, or before the District
Judge on other cases, and the Judge can examine the petition in a summary manner and declare the marriage to be a
proper marriage

Effect of false oath. — A Division Bench of the Madras High Court was faced with the question as to whether a
marriage become invalid if it is shown that the oath was false in nature, as for instance, if the dwelling place of the
bride was falsely stated. Taking a liberal view in the matter, the court held that the marriage does not become
invalid on this ground. Once the marriage is duly solemnized, this defect can be cured under S. 77 of the Act. (Lala
Gokuldas v. John Kantaraj, AIR 1937 Mad 895)

Any person whose consent to such a marriage would be required under the Act can, before the certificate is issued,
enter a protest against the issue of the certificate, by writing the word ”Forbidden” opposite the entry of the notice of
the intended marriage, along with his name and address, also indicating his or her position by which he or she is
authorised to lodge such a protest. When this happens, no certificate can be issued until the Marriage Registrar has
examined the matter and is satisfied that the certificate should be issued or until the protest is withdrawn by the
person who made it. If it later turns out that such a protest is frivolous and such as not to obstruct the issue of a
certificate, the person making the protest is liable to pay the costs of all proceedings wherein the protest was found
to be of such a nature. Additionally, damages can be recovered from such a person by the persons against whose
marriage such a protest was lodged.

If the Marriage Registrar refuses to issue a certificate, either party to the intended marriage may file a petition in the
High Court or the District Court (as the case may be) and the court, after examining the allegations contained in such
a petition, can pass appropriate orders thereon. (S. 46)
The form of the certificate has been given in the Second Schedule to the Act and it is the duty of the State
Government to furnish sufficient copies of such certificates to all the Marriage Registrars in the State. (S. 50)

Once the certificate is issued by the Marriage Registrar, a marriage can be solemnized between the parties according
to such form and ceremony as they think fit to adopt. However, the marriage must be solemnized in the presence of
the Marriage Registrar and two or more credible witnesses (in addition to the Registrar) and in some part of the
marriage ceremony, each party must declare as under or to the like effect:

”I do solemnly declare that I know not of any lawful impediment why I, AB may not be joined in matrimony to CD.”

In addition to the above, each of the patties must say to the other as under or to the like effect:

”I call upon these persons here present to witness that I, AB do take thee, CD, to be my lawful wife (or husband).”

Under S. 52 of the Act, the marriage must be solemnized within two months from the date on which a copy of the
notice is entered by the Marriage Registrar in the Marriage Notice Book. If this is not done, the notice, the certificate
(if any issued) and all other related proceedings become void, and no person can proceed to solemnize the marriage
until a new notice is given and a fresh certificate has been issued on such new notice. In other words, once the
above period of two months expires, the process has to start again from Step One.

After the solemnization of the marriage, the Marriage Registrar who was present at such solemnization must
forthwith register the marriage in duplicate, i.e. in the Marriage Register Book and also in a certificate attached to
the Marriage Register Book as a counterfoil. Such entries are to be signed by the person by or before whom the
marriage was solemnized, by the parties to the marriage and by two credible witnesses (not being the Marriage
Registrar and the person solemnizing the marriage). It is the duty of the Marriage Registrar to separate the certificate
from the Marriage Register Book and send it to the Registrar-General of Births, Deaths and Marriages at the end of
every month.
Chapter 6
CERTIFICATION OF MARRIAGES OF INDIAN CHRISTIANS (Sections 60 to 65)

S. 60 of the Act lays down that any marriage between Indian Christians shall, without the preliminary notice
required under Chapter 3, be certified under the Act if the following three conditions are fulfilled (-but not otherwise
-):

(1) The bridegroom should not be under 21 years of age and the bride should not be under 18 years of age. (It may
be noted that these age limits are in accordance with the provisions of the Prohibition of Child Marriage Act, 2006.)

(2) Neither person should have a wife or husband still living.

(3) Each of the parties must, in the presen3e of a person licenced

under S 9 of the Act and in the presence of at least two credible witnesses say to the other as under (or in words to
the like effect)

I call upon these persons here present to witness that I, A. B., in the presence of Almighty God and in the name of
our Lord Jesus Christ, do take thee, C. D., to be my lawfully wedded wife (or husband)”

Under S 61 of the Act, if the above conditions are fulfilled, the person who is licenced under S 9 of the Act in whose
presence such a declaration has been made must, on the application of either party to the marriage and on payment
of the prescribed fees, grant a certificate of such marriage. The certificate is to be signed by such licenced person
and is admissible in evidence as conclusive proof of such a marriage having been performed. (Incidentally, the
”prescribed fees” — even today — happen to be a sum of ”four annas”.)

Every person licenced under S. 9 of the Act must maintain — in English or in the local vernacular language — and
in such form as the State Government may prescribe, a register book of all marriages solemnized in his presence and
must allow a search to be made in such a book and give a copy of any entry made therein on payment of the
prescribed fee. Such a licenced person must also deposit in the office of the Registrar-General of Births, Deaths &
Marriages, true and duly authenticated extracts from his register book of all entries made therein at such intervals as
may be prescribed by the State Government.
Chapter 7

OFFENCES AND PENALTIES (Sections 66 to 76)

Ss. 66 to 76 of the Act prescribe penalties for various offences under the Act, which may be summarised as under:

Offence

I. Making a false oath or declaration or signing a false notice or certificate

Penalty

Imprisonment upto 3 years + Fine

2. Solemnizing a marriage in cases where the person is not authorised to do so under S. 5 of the Act

Penalty

Imprisonment upto 10 years + Fine

3. Solemnizing a marriage at any time other than between 6 a.m. and 7 p.m. (except when exempted by S. 10) or in
the absence of at least two credible witnesses

Penalty

Imprisonment upto 3 years + Fine

4. Knowingly and wilfully solemnizing -

(a) a marriage without notice in writing, or

(b) a marriage where one of the parties is a minor without the consent of the parent/guardian within 14 days of the
notice of marriage

Penalty

Imprisonment upto 3 years + Fine

5. A Marriage Registrar -

(a) knowingly and wilfully solemnizing a marriage or issuing a Marriage Certificate without publishing a notice of
the marriage
(b) solemnizing a marriage after the expiry of two months in violation of S. 40 of the Act
(c) solemnizing, without the order of a competent court, any marriage where one of the parties is a minor, within 14
days of the receipt of the notice of such marriage or without sending a copy of such notice to the Senior Marriage
Registrar
(d) issuing a certificate, the issue whereof is prohibited by the Act.

Penalty

Imprisonment upto 5 years + Fine

6. Unlicenced person granting a Marriage Certificate, pretending that he is licenced

Penalty
6. Imprisonment upto 5 years + Fine
7. Licensed person, without just cause, refusing or wilfully neglecting or omitting to perform duties imposed on him
by the Act

Penalty
7. Fine upto Rs. 100

8. Destroying or falsifying Register books

Penalty
8. Imprisonment upto 7 years + Fine

The limitation period for the prosecution of the above offences is two years from the date of the offence.
Chapter 8

MISCELLANEOUS PROVISIONS (Sections 77 to 88)

Certain irregularities not to invalidate a Christian marriage

S. 77 provides that if a marriage has been solemnized in accordance with the provisions of Ss. 4 and 5 of the Act (-
see Chapter 2-), such a marriage cannot be considered to be void merely on account of any irregularity in respect of:

(i) any statement made in regard to the dwelling of the persons married or to the consent of any person whose
consent to such marriage is required by law;
(ii) the notice of the marriage;
(iii) the certificate or translation thereof;
(iv) the time and place at which the marriage has been solemnized;
(v) the registration of the marriage.

Correction of errors

S. 78 of the Act provides that if a person who is under a duty to register a Christian marriage discovers any error in
form or substance of any entry. he may correct the error within one month of discovering it by making an entry in
the margin — without any alteration of the original entry — along with his signature and the date of the marginal
entry. However, this must be done in the presence of the spouses, or in case of their death or absence, in the
presence of two other credible witnesses. Every such entry should also be attested by the witnesses in whose
presence it was made

State Government to prescribe fees

S. 82 of the Act authorises the State Government to prescribe fees chargeable under the Act —

(i) for receiving and publishing notices of marriages;

(ii) for issuing Certificates of Marriage by Marriage Registrars and for registering marriages;
(iii) for entering protests against, or prohibitions of, the issue of Certificates of Marriage by the Marriage Registrar,
(iv) for searching Register Books or Certificates or duplicates or copies thereof;
(v) for giving copies of entries of Register Books or Certificates The State Government is also authorised to, from
time to time, vary or remit such fees, either generally or in special cases as it may deem fit.

Power to make rules

S 83 of the Act gives power to the State Government to make rules as regards (i) disposal of the fees referred to in
S. 82 (above), (ii) the supply of Register Books, and (iii) the preparation and submission of returns of marriages
solemnized under the Act. Such rules are to be placed before the State Legislature as soon as may be after they are
made.

Saving of Consular marriages

Nothing in the Indian Christian Marriage Act applies to any marriage performed by a Minister, Consul or Consular
Agent between subjects of the state which he represents and according to the laws of such state (S 87)

Non-validation of marriage within prohibited degrees

Nothing in the Act is to be deemed to validate any marriage which the personal law applicable to either of the parties
forbids him or her to enter into (S 88)

The Calcutta High Court has held that since the personal law of Roman Catholics forbids a marriage between a
Catholic and a person who is not baptized, a marriage solemnized under the Act between a Roman Catholic woman
and a Jew (a non-baptized person) is null and void (Claudia Jude v Lancelot Jude, AIR 1949 Cal 563)
The Madras High Court has held that if there is a valid marriage between a Roman Catholic man and a Protestant
woman and if the husband marries another Protestant woman during the subsistence of the marriage, he would be
guilty of the offence of bigamy under the Indian Penal Code. Even if a release is signed by the first wife before his
subsequent marriage, such a release does not operate as a dissolution of the first marriage. The release deed would
likewise not validate the second marriage or afford a valid defence to the charge of bigamy. (Gnanasoundari v.
Nallathambi, AIR 1945 Mad 516)
Chapter 1

PRELIMINARY & DEFINITIONS

(Sections 1 & 2)

Preliminary

The Parsi Marriage & Divorce Act was passed in 1936 to amend the law relating to marriage and divorce amongst
Parsis. Circumstances had drastically changed since the passing of the Parsi Marriage & Divorce Act, 1865. The
Parsi Central Association (which was set up for the purpose of drafting Bills for special laws applicable to the Parsi
community) took the initiative in 1923 and a sub-Committee was appointed to suggest desirable changes. Opinions
were invited from other Parsi Associations, including the Bombay Parsi Panchayat, as also from prominent members
of the community like Sir Dinshaw Wacha and Sir Dinshaw MuIla before the Act was finally passed in 1936

A major amendment was made in the Act by the 1988 Amendment on the basis of certain recommendations made by
the Bombay Parsi Panchayat and approved by the Minorities Commission of India The Amendment altered the
minimum age of marriage of both the spouses to bring it in accord with the amendments made to the Child Marriage
Restraint Act, 1929, i.e., 21 years for the male and 18 years for the female. It also introduced the concept of divorce
by mutual consent and ”cruelty” was made a ground of divorce. Instead of having a separate list of grounds for
judicial separation, the Amendment provided that all grounds for divorce would also be available for judicial
separation. Certain amendments were also made in the provisions relating to permanent alimony and maintenance.
The 1988 Amendment also provided for all Parsi matrimonial matters to be heard in camera, doing away with the
process of washing dirty linen in public. Thereafter, minor changes were made in the Act by the Marriage Laws
(Amendment) Act, 2001.

The Parsi Marriage & Divorce Act extends to the whole of India, except the State of Jammu and Kashmir and came
into force on 22nd June, 1936.

Definitions S. 2 of the Act defines various terms used in the Act as under:
1. The expression ”Chief Justice includes a senior Judge.

2. The word ”court” means a court constituted under the Parsi Marriage & Divorce Act.

3. The word ”husband” refers to a Parsi husband and the word ”wife” means a Parsi wife.

4. A ”Parsi” means a Parsi Zoroastrian.

A Zoroastrian is a person who professes the Zoroastrian faith. The word ”Parsi” has only a racial connotation, the
word being derived from ”Pere or ”Fars”, a province in Persia from where the original Parsi immigrants came to
India several years ago.

5. The term ”priest” means a Parsi priest and includes a dastur (head priest) and a mobed (ordinary priest).

6. For the purposes of the Act, the word ”marriage” means a marriage between Parsis — whether contracted before
or after the commencement of the Act (i.e., 22” June, 1936).

7. ”To desert” means to desert the other party to the marriage without reasonable cause and without the consent or
against the will of such other party

8. As causing grievous hurt is one of the grounds of divorce, the term ”grievous hurt” is defined to mean —
(a) emasculation:

(b) permanent privation of the sight of either eye:

(c) permanent privation of the hearing of either ear;

(d) privation of any member or joint;

(e) destruction or permanent impairing of the powers of any member or joint;

(f) permanent disfiguration of the head or face; or

(g) any hurt which endangers life.

The definition of grievous hurt (above) is almost the same as the one under S. 320 of the Indian Penal Code (IPC),
but two categories of grievous hurt listed in the IPC are excluded from the above definition.
Chapter 2

PARSI MARRIAGES

(Sections 3 to 17)

Requisites of a Parsi marriage

Under Ss 3 and 4 of the Parsi Marriage & Divorce Act, a Parsi marriage is valid only if the following conditions are
fulfilled, namely

(a) The parties to the marriage should not be related to each other in any of the degrees of consanguinity or affinity
set out in Schedule I to the Act (e.g.. mother, step-mother, father, stepfather. sister, step-sister, brother, step-brother,
etc.)

Most personal laws prevailing in India prohibit — and discourage — marriages between relatives. Under Parsi law
also, Schedule I gives a list of all such relatives through the father, mother, son daughter. wife, husband, sister and
brother.

(b) The marriage must be solemnized according to the Parsi form of ceremony called ”Ashirvad’ by a Parsi priest in
the presence of two Pars’ witnesses other than such priest Under S. 2 of the Act, a priest includes a dastur (head
priest) and a mobed (ordinary priest)

”Ashirvad”literally means ”blessings”. Amongst Parsis, it refers to the invocation of the Divinity to bless the
couple.

As regards witnesses, the only requirement is that they should be two in number, their gender is not relevant.

(c) The bridegroom should have completed the age of twenty-one years and the bride, the age of eighteen years.
(This requirement applies even if a spouse has changed his or her religion or domicile )

The above age requirement (minimum 21 years for the boy and 18 for the girl) was inserted by the 1988 Amendment
of the Act to bring the law relating to Parsi marriages at par with marriages solemnized under the Special Marriage
Act.

Evidently, the Act prescribes only the minimum age requirement for the spouses. There is no requirement that there
should be any specific age gap between them. As the community strongly believes (in theory and in practice) that no
person is too old to marry, the Act does not prescribe any maximum age limits for a Parsi marriage.

(d) A Parsi cannot contract a marriage in the lifetime of his or her spouse — whether or not such a spouse is a Parsi
— unless he or she has obtained a lawful divorce from such spouse or unless the earlier marriage has been lawfully
dissolved or declared null and void. (This requirement (-which reinforces monogamy in the Parsi community-)
applies even if a spouse has changed his or her religion or domicile.)

Thus, even if the marriage of a Parsi was contracted under any other law, he or she cannot marry again under this
Act or under any other law, unless the first marriage has been dissolved by the court or by the death of the first
spouse.

The Supreme Court has held in a number of cases that the offence of bigamy is committed when the necessary
ceremonies of marriage are celebrated in their proper form for both the ”marriages”. Therefore, if there is no proof
of all the requisite ceremonies having been performed for the -second marriage”, a mere intention and preparation to
contract the ”second marriage” cannot be held to be an attempt to commit bigamy

If a marriage is contracted in violation of clause (a) or clause (b) or clause (c). it is invalid_ However, a child of
such a marriage who would have been legitimate if the marriage had been valid is declared to be a legitimate child.
This provision which is quite fair in nature and is to be found in matrimonial laws of several countries, is inspired by
the noble theory that an innocent child should not be penalised for any fault of its parents.

However, a marriage contracted in violation of clause (d) is void ab inetio. and any priest who knowingly and
willfully solemnizes such a marriage is liable to be punished with simple imprisonment upto six months or with fine
upto Rs. 200 or both Additionally, the person who contracts a marriage in the lifetime of his or her spouse, without
first having obtained a divorce or without having the marriage declared as dissolved or null and void, also faces a
penalty under Ss 494 and 495 of the Indian Penal Code for bigamy. Such a person can be punished with
imprisonment (simple or rigorous) for upto seven •years and with fine. And if the fact of the earlier marriage had
been concealed from the spouse of the second ”marriage”, such imprisonment can extend to ten years.

In one interesting case, the Delhi High Court has held that the marriage between Indira Gandhi (a Hindu) and Feroze
Gandhi (a Parsi) was not a Parsi marriage (despite the fact that the groom was admittedly a Parsi) as the marriage
was celebrated according to Vedic rites. (A/laneka Gandhi v Indira Gandhi, AIR 1984 Del 428)

Under S. 6 of the Act, immediately on the solemnization of a marriage contracted under the Parsi Marriage &
Divorce Act, the same should be certified by the officiating priest in the prescribed form given in Schedule It to the
Act. The Certificate is to be signed by the said priest, the parties to the marriage and the two witnesses present at the
marriage. The Certificate is then to be sent to the Registrar (appointed under S. 7 of the Act) along with a fee of Rs.
2, which has to be paid by the husband. On receipt of the Certificate along with the said fee. the Registrar must enter
the Certificate in the Marriage Register kept by him for this purpose. It the priest neglects to comply with this duty.
he becomes liable to be punished with simple imprisonment upto three months or with fine upto Rs. 100 or both.

[ Note The amount prescribed for the fees appears to be unrealistic — and even ridiculous. So also, the emphasis
on the fact that it is the husband who must bear this ”burden” sounds equally strange However, one can find
consolation in the fact that these are requirements prescribed in 1936 which have, unfortunately. remained
unamended till date If it does not sound sensible to increase this amount, it may be more sensible to abolish the fee
altogether. ]

The Marriage Register maintained by the Registrar is to be kept open for inspection at all reasonable times and is
evidence of the truth of the statements contained therein. Certified extracts from this Register are to be made
available to any applicant who applies for such extracts, along with an application fee of Rs. 2 for each extract. True
copies of all the Certificates entered in the Marriage Register are also to be sent by the Registrar to the Registrar-
General of Births, Deaths and Marriages.

Invalidity of Certificate does not affect a Parsi marriage.-Although the Act contains various provisions for
penalising acts and omissions relating to the certification of Parsi marriages, S. 17 of the Act makes a salutary
provision which lays down that no marriage under the Parsi Marriage & Divorce Act is deemed to be invalid only by
reason of the fact, that the marriage was not certified or that the certificate was not sent to the Registrar or that the
certificate was defective, irregular ur incorrect

The Bombay High Court has held that if there is no certificate of marriage and no entry in the Marriage Register,
any other relevant evidence is admissible as proof of the marriage having taken place. (Bai Awabai v Khodadar
Ardesliar, 28 BLR 913)

It is clear from the various provisions of the Act that the validity of a Parsi marriage depends on the compliance of
the four conditions referred to in the beginning of this Chapter. The certificate of marriage which is required to be
given by the officiating priest is not one such requirement. The dual purpose behind certification of Parsi marriages
is to maintain a record of such marriages and to serve as a piece of evidence in a court of law. Certification of the
marriage cannot be looked at as an essential requisite of a Parsi marriage.

Unlike the Hindu Marriage Act or the Special Marriage Act, the Parsi Marriage and Divorce Act does not refer to
the sanity of the spouses as a requirement for a valid marriage, though unsoundness of mind and mental disorder are
grounds for divorce in Parsi matrimonial law, as discussed in Chapter 4.

penalties
The penalties which can be imposed on a priest for knowingly and willfully solemnizing a marriage in contravention
of clause (d) above or for not sending the Marriage Certificate to the Registrar have already been seen above.
Additionally, the Act provides for the fallowing penalties relating to certification of Parsi marriages:

- If a person who is required to subscribe or attest a Marriage Certificate willfully omits or neglects to do so, he is
liable to pay a fine upto Rs. 100.
- If a person makes, signs or attests a Marriage Certificate containing a false statement and the person either knows
or believes such a statement to be false, he can be punished with simple imprisonment upto three months or fine
upto Rs. 100 or both. If such an act also amounts to a forgery, he can also be punished under S. 466 of the Indian
Penal Code.
- If a Registrar fails to enter a Certificate in the Marriage Register, he can be punished with simple imprisonment
upto one year or with fine upto As 1,000 or both.
- If any person secrets, destroys or dishonestly or fraudulently alters a Marriage Register or any part thereof, he
becomes punishable with simple or rigorous imprisonment upto two years and a fine upto Rs. 500. If such a persor
is the Registrar himself, the imprisonment can extend to five years in addition to the fine.
Chapter 3

PARSI MATRIMONIAL COURTS APPOINTMENT OF DELEGATES

(Sections 18 to 29)

The Parsi Marriage & Divorce Act has excluded Parsi matrimonial disputes from the jurisdiction of ordinary civil
courts and family courts. The Act has constituted special courts to hear such matters. There is one Parsi Chief
Matrimonial Court in each of the Presidency towns of Mumbai. Chennai and Kolkata and similar courts can be
established in other cities if the State Governments deem fit. The local limits of the jurisdiction of these courts is
coterminous with the local limits of the ordinary original civil jurisdiction of the High Court. The Chief Justice of
the High Court or such other Judge of the same High Court as may be appointed by him is designated as the Judge
of the Parsi Chief Matrimonial Court

Every court constituted at a place other than a Presidency town is called the Parsi District Matrimonial Court of that
place. The local limits of the jurisdiction of such a court is coterminous with the limits of the district in which it is
held The Judge of the principal court of original civil jurisdiction at such a place is designated as Judge of such a
Parsi District Matrimonial Court.

In all matrimonial matters. Judges of the Parsi Matrimonial Courts are aided by live Parsi delegates, - except in
regard to —

(a) interlocutory applications and proceedings,

(b) alimony and maintenance. - permanent and pendente lite;
(c) custody, maintenance and education of children; and
(d) all matters and proceedings other than the regular hearing of cases

Under S. 46 of the Act, in all Parsi matrimonial suits, all questions of law and procedure are determined by the
presiding Judge, but the decision on facts is the decision of the majority of the delegates before whom the case is
tried. If the delegates are equally divided in their opinion, the decision on the facts also has to be taken by the
presiding Judge

As lay persons can be appointed as delegates, it is provided (by S. 45 of the Act) that the presiding Judge should
read out to the delegates the relevant sections of the Parsi Marriage & Divorce Act and, if necessary, explain such
provisions to them. A verbatim record is to be made of what the presiding Judge reads out or explains to the
delegates.

Although the Act requires the presence of five delegates at every trial, it also provides that if at a trial in a Parsi
Matrimonial Court, if not less than three delegates have been present throughout the trial, such a trial does not
become invalid on the ground of absence, at any part of the trial, of the other delegates. (S. 44)

In one case, the plaintiff challenged the verdict of the judge on the ground that all the delegates were not present at
the time of the verdict. The Bombay High Court rejected this argument and held that all the delegates need not be
present when the verdict is pronounced. (Pestonji Bharucha v. Aloo, AIR 1984 Born 75)

A Division Bench of the Bombay High Court has held that. under the Act, the judge of a Parsi Matrimonial Court
needs to be aided by delegates only in contested matters Where an application is heard for a divorce by mutual
consent, there is no adjudication. and hence. no requirement of delegates assisting the judge (Minoo Shroff v. Union
of India, 2005 (4) BLR 147)

As regards the particular court in which a Parsi matrimonial suit is to be filed, three simple rules are to be kept in
mind namely -

(1) Normally, the suit is to be filed in the court within the limits of whose jurisdiction the defendant resides at the
time of filing the suit or where the marriage under the Act was solemnized.
(2) If the defendant has, at the time of institution of the suit, left the territories to which the Act extends, the suit can
be filed in the court at the place where the plaintiff and the defendant last resided together.
(3) In any case, whether or not the defendant resides in the territories to which the Act extends, a suit can be filed in
the court at the place where the plaintiff resides or at the place where both spouses last resided together, if the court
grants leave to do sa after recording its reasons in wilting

Though clause (3) is available to both the spouses, it was added in 1951 mainly to provide for cases where the
husband deserts the wife and shifts from place to place, thus frustrating the wife’s attempts to commence
matrimonial proceedings against him.

The meaning to be given to the word ”resides” would depend on the facts and circumstances of each case. If a
person is permanently at a particular place, there can be no doubt that he ”resides” at such a place. However,
residence need not always be permanent. It is enough if it is bona fide, along with an element of continuity, even if
it is not permanent in nature (Panthaky v. Panthaky, AIR 1941 Bom 330)

The delegates referred to above are Parsis appointed by the State Government after giving the local Parsis an
opportunity of expressing their opinion in such manner as the State Government may think fit. A maximum of 30
delegates can be appointed within the jurisdiction of the High Court and a maximum of 20 in the districts. Their
names are required to be published in the Official Gazette. A delegate is considered to be a ”public servant” within
the meaning of the Indian Penal Code

Every delegate is appointed for a period of ten years and can be re-appointed for further terms of ten years each. If,
however, a delegate—

(a) dies. or
(b) completes his term of office, or
(c) is desirous of relinquishing his office, or
(d) refuses, or becomes incapable or unfit to-act, or
(e) ceases to be a Pars’. or
(f) is convicted under the Indian Penal Code or any other law for an offence involving moral turpitude; or
(g) is adjudged insolvent, -

the State Government may appoint any other person who is a Parsi to be a delegate in his place and the name of
such a person is to be published in the Official Gazette.

In every Parsi matrimonial trial under the Act, the five delegates who will sit to aid the Judge are selected in rotation
under the orders of the presiding Judge Before delegates are appointed for a particular suit, each party to the suit can
”challenge” (i.e., object to) the appointment of any two of the delegates. and if this is done, these two delegates
cannot be selected for that particular suit.

It is clear that under the Act. the right to ”challenge” the appointment of a delegate is to be exercised before the
trial begins. The Bombay High Court has held that a delegate under the Act occupies a position similar to a juryman
and his appointment cannot be challenged in an appeal (Dinbai v. Framroz, AIR 1918 Nag 77)

All legal practitioners who are entitled to practise in the High Court are entitled to practise in any court constituted
under the Act. Likewise, legal practitioners who are entitled to practise in a District Court are entitled to practise in
any Parsi District Matrimonial Court under the Act. This is in sharp contrast to the provision contained in S. 13 of
the Family Courts Act, which provides that no party to a suit or proceedings before a Family Court is entitled, as of
right, to be represented by a legal practitioner and that he or she can engage a lawyer only if the court considers it to
be in the interest of justice to allow him or her to do so.

Chapter 4

MATRIMONIAL SUITS (Sections 30 to 48 & S. 52)

The Parsi Marriage & Divorce Act envisages five types of matrimonial suits. The Act also provides for alimony
pendente lite as well as permanent alimony and maintenance. The following seven topics are discussed in this
Chapter:

A. Suits for nullity

B. Suits for dissolution of marriage
C. Suits for divorce
D. Suits for judicial separation
E. Suits for restitution of conjugal rights
F. Alimony and maintenance
G. Miscellaneous provisions.

Each topic is discussed below in necessary details.

A. SUITS FOR NULLITY

A Parsi marriage can be declared to be null and void under the Act if consummation of the marriage is impossible
due to natural causes. Either party to the marriage can approach the court in such a case. (S. 30)

As observed in an English case, consummation of a marriage requires an act of sexual intercourse which is ’’natural
and complete” (Grimes v. Grimes. (1948) 2 All E R 147)

When a person is not able to consummate a marriage owing to natural causes, he can be said to be impotent Physical
impotency denotes malfunction of. or a structural or medical defect in, the sexual organs, as for instance, an
unusually large male organ (Kanthy v. Harry AIR 1954 Mad 316) or an abnormally small female organ (A v. B,
1953 BLR 458)

[Note : The concept of impotency has been discussed in Chapter 4 of the Divorce Act, to which a reference may be
made ]

B. SUITS FOR DISSOLUTION OF MARRIAGE

Under S. 31 of the Act, if the husband or wife is continuously absent from his or her spouse for a period of seven
years and has not been heard of as being alive within that time by persons who would have naturally heard of him or
her, had he or she been alive, the marriage can be dissolved by the court. A continuous absence for seven long years
also raises a presumption under the Indian Evidence Act that such a person is likely to have died, and hence, a Parsi
marriage can be dissolved on this ground. (This ground is also available under the Hindu Marriage Act and the
Special Marriage Act.)

SUITS FOR DIVORCE

Ss 32. 32A and 328 of the Parsi Marriage & Divorce Act allow a divorce on the following fourteen grounds.

(i) Wilful non-consummation of marriage for one year

(ii) Unsoundness of mind at the time of marriage
(iii) Mental disorder
(iv) Pregnancy of the wife before marriage
(v) Adultery, etc.
(vi) Cruelty
(vii) Causing grievous hurt, inflicting a venereal disease or forcing the wife into prostitution
(viii) Imprisonment of a spouse for seven years or more
(ix) Desertion for two years
(x) Order for separate maintenance
(xi) Conversion
(xii) Non-resumption of cohabitation after decree for judicial separation
(xiii) Non-restitution of conjugal rights after decree for restitution of conjugal rights
(xiv) Divorce by mutual consent. Each ground of divorce will now be discussed briefly.
(i) Wilful non-consummation of marriage for one year

Any spouse can sue for divorce under the Act on the ground that the marriage has not been consummated within one
year after its solemnization, owing to the wilful refusal of the defendant to consummate it

It has been held in an English case (Baxter v. Baxter, (1948) AC 274) that refusal to have sexual intercourse without
the use of a contraceptive does not amount to refusal to consummate a marriage. The English courts are, however,
divided in their views on whether sexual intercourse following the method of coitus interruptus would amount to a
refusal to consummate a marriage. No court in India appears to have faced this question so far.

As seen earlier. if consummation of a Parsi marriage is not possible due to natural causes, a suit for nullity can be
filed by either party to the marriage. However. if one of the spouses wilfully refuses to consummate the marriage,
the other spouse can sue for divorce.

(ii) Unsoundness of mind at the time of marriage

A suit for divorce can be filed on the ground that, at the time of the marriage, the defendant was of unsound mind
and has been habitually so upto the date of the suit.

However, divorce cannot be granted on this ground, unless the following two conditions are fulfilled:

(a) the plaintiff should have been ignorant of this fact at the time of the marriage; and
(b) the plaintiff should have filed the suit within three years from the date of the marriage.

Very often, in such cases, the divorce petition is accompanied by an application for a direction for the medical
examination of the respondent. The power Of a matrimonial court extends to giving such a direction and if the
respondent refuses to comply with it, an adverse inference can be drawn by the court. The Supreme Court has held
that a direction issued by a court to a person to undergo medical examination is not violative of his fundamental
right to personal liberty under S. 21 of the Constitution of India. (Sharda v Dhararnpal, (2003) 4 SCC 493)

(iii) Mental disorder

A Parsi spouse can sue for divorce on the ground that the defendant —

(a) has been incurably of unsound mind for a period of two years or more immediately preceding the filing of the
suit, or
(b) has been suffering, continuously or intermittently, from mental disorder of such a kind and to such an extent
that the plaintiff cannot reasonably be expected to live with the defendant

For the purposes of this clause, the expression ”mental disorder” has been defined to mean mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other disease or disability of mind, including
schizophrenia. By ”psychopathic disorder’ is meant a persistent disorder or disability of mind (whether or not
accompanied by subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible
conduct on the part of the defendant. Whether such disability or disorder requires or is susceptible to medical
treatment is not relevant.

(iv) Pregnancy of the wife before marriage

The husband can sue for divorce on the ground that the wife was, at the time of the marriage, pregnant by some
person other than the husband. provided —

(a) he was ignorant of this fact at the time of the marriage,

(b) the suit has been filed within two years of the date of the marriage; and
(c) marital intercourse between the parties has not taken place after the husband came to know this fact.

The three conditions mentioned above are cumulative in nature, ie. all of them must be fulfilled before a suit for
divorce is filed on this ground. The rationale underlying these conditions is obvious. As far as clause (a) is
concerned, if the husband was aware of this fact at the time of marriage, it is clear that he had decided to marry a
pregnant girl and he should not be allowed to complain later. Clause (b) ensures timely action on the part of the
husband, whereas clause (c) ensures that he has not condoned her conduct (or rather, her misconduct)

The concept of pre-marriage pregnancy affecting matrimonial harmony has been borrowed from English law, which
however, takes such a marriage voidable at the option of the husband. The origin of this rule seems to be that
concealment of such a pregnancy is a special case of fraud committed by the wife. Under the Hindu Marriage Act
and the Special Marriage Act, the wife’s pregnancy by another man at the time of marriage makes the marriage
voidable at the option of the husband, who can apply to the court to have the marriage declared null and void.
However, under the Parsi Marriage and Divorce Act as seen above, this is a ground for divorce, and not for nullity of
marriage.

It is to be noted that the Act speaks of pre-marriage pregnancy and not pre-marriage unchastity The wife might
have been unchaste before the marriage she might have gone through an abortion or might even have delivered an
illegitimate child. However, these facts do not entitle the husband to sue for a divorce. What the law seems to have
in mind is not pre-marriage immorality or unchastity. but an attempt to foist another man’s child on the husband

In one case, a wife delivered a normal child after 203 days from the date of the marriage and it was shown that the
husband had no access to her before the marriage The court concluded that she was pregnant at the time of the
marriage and since this fact was concealed from the husband, he was entitled to the matrimonial relief. (P V Sabu v.
Mariakutty AIR 1988 Ker 86)

(v) Adultery, etc.

A party to a Parsi marriage can sue for divorce on the ground that the defendant has, after the date of the marriage,
committed —

(a) adultery, or
(b) fornication, or
(c) bigamy, or
(d) rape, or
(e) an unnatural offence.

The term adultery refers to voluntary sexual intercourse between a man and a woman, at least one of whom is
married to a third party. The concept of adultery as a matrimonial offence has been discussed in an earlier Chapter
(Chapter 3 of the Divorce Act, 1869) to which a reference may be made. Fornication refers to a voluntary sexual
intercourse between two persons who are not married to each other Bigamy is said to take place when a married
person marries again in the lifetime of his spouse when the marriage is still subsisting. Rape, which is also a
criminal offence, has been defined by S. 375 of the Indian Penal Code to mean sexual intercourse with a woman in
the circumstances stated in the said section, reproduced in Chapter 3 of the Divorce Act. The term unnatural offence
refers to carnal intercourse against the order of nature with any man, woman or animal. (S 377 of the Indian Penal
Code)

A suit for divorce on this ground must be filed within two years from the date on which the plaintiff came to know
about this fact Moreover, when the suit is filed on the ground of adultery, unless the court otherwise orders, the
person with whom the adultery is alleged to have been committed must be joined in the suit as a co-defendant When
such a suit is filed by the husband, the adulterer may be ordered by the court to pay the whole or any part of the
costs of the proceedings.

(iv) Cruelty

A party to a Parsi marriage can sue for divorce on the ground that, after the solemnization of the marriage, the
defendant —

(a) has treated the plaintiff with cruelty, or

(b) has behaved in such a way as to render it improper (in the judgment of the court) to compel the plaintiff to live
with the defendant.

When a suit is filed on this ground. it is in the discretion of the court to pass either a decree for divorce or a decree
for judicial separation.

The word ”cruelty”, when used in matrimonial legislation. must be understood to mean ”cruelty” in its legal sense. It
need not necessarily involve physical violence. It may consist in a course of harsh conduct pursued by one spouse
against the other, and even towards their children. (Cawasji Patuck v. Shehra Patuck, 39 BLR 1138)

The concept of cruelty has been discussed earlier in this book in Chapter 3 of the Divorce Act, 1869, to which a
reference may be made. Several cases arising under different personal matrimonial laws have discussed as to what
amounts, and what does not amount. to ”cruelty”. However, the Bombay High Court has cautioned that notions of
cruelty under the Hindu Marriage Act cannot be imported into Parsi matrimonial law. (Pestonji Bharucha v. Aloo,
AIR 1984 Bom 75)

(vii) Causing grievous hurt, inflicting a venereal disease or forcing the wife Into prostitution

A suit for divorce can also be filed on the ground that the defendant, after the marriage, -

(a) has caused grievous hurt to the plaintiff; or

(b) has infected the plaintiff with venereal disease, or
(c) where the defendant is the husband, has compelled the wife to submit herself to prostitution.

As seen earlier, the term ”grievous hurt” has been defined to mean

(a) emasculation:
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation of any member or joint;
(e) destruction or permanent impairing of the powers of any member or joint,
(f) permanent disfiguration of the head or face; or
(g) any hurt which endangers life.

However. no relief can be granted by the court on this ground if the suit has been filed more than two years —

after the infliction of the grievous hurt, or

after the plaintiff came to know about the infection; or
after the last act of compulsory prostitution.

(viii) Imprisonment of a spouse for seven years or more

Either spouse of a Parsi marriage can sue for divorce on the ground that the defendant is undergoing a sentence of
imprisonment for seven years or more for an ”offence” as defined in the Indian Penal Code In such cases, prior to
the filing of the suit, the defendant must have undergone at least one year of such imprisonment.

The rationale behind this ground of divorce is obvious. Cohabitation between the spouses stand disrupted for a long
period of several years, in addition to the fact that the innocent spouse would find it most embarrassing to be dubbed
as the wife or the husband of a prisoner

Similar provisions exist in the Special Marriage Act, 1954, and the Dissolution of Muslim Marriages Act, 1939.
However, there are no analogous provisions in the Hindu Marriage Act, 1955 and the Divorce Act, 1869.

(ix) Desertion

Desertion of the plaintiff by the defendant for a period of at least two years is also a ground for divorce under the
Act. As seen earlier, desertion means that one party has deserted the other party to the marriage without reasonable
cause and without the consent or against the will of such other party. (S. 2)

The Bombay High Court has held that withdrawal of a spouse from the marital home does not by itself constitute
desertion by that spouse. In every case, it is the spouse who by his or her conduct brings cohabitation to an end who
is guilty of desertion. (Meher Moos v. Rohinton Moos, 79 BLR 131)

It has also been held that the period during which the defendant as confined in a lunatic asylum is not to be taken
into account when computing the period of two years of desertion. (Kaikhushroo Tantra v. Meherbai Tantra, 47
BLR 819)

The concept of ”desertion” has been discussed earlier in this book in Chapter 3 of the Divorce Act, 1869, to which a
reference may be made.

(x) Order for separate maintenance

A suit for divorce can be filed under the Act on the ground that an order has been passed against the defendant by a
Magistrate awarding maintenance to the plaintiff and the parties have not had marital intercourse for one year or
more since the date of such a decree.

(xi) Conversion

If one spouse has ceased to be a Parsi by conversion to another religion, the other spouse can sue for divorce,
provided he or she files a suit within a period of two years from the time of his or her knowledge of this fact.
Earlier, merely ceasing to be a Parsi was a good ground for divorce under the Act. However, after the 1988
Amendment, this is not enough. The person ceasing to be a Parsi must be shown to have converted to some other
religion.

Some positive evidence should be adduced before the court to show that the respondent has given up the Parsi
religion and has converted to another religion. A mere doubt or suspicion of the plaintiff in this regard is not
sufficient. (Dhunbai Palkhiwala v. Sorabji Palkhiwala, (1937) 39 BLR 1143)

(xii) Non-resumption of cohabitation after decree for Judicial separation

If a decree for judicial separation has been passed in a proceeding filed by one spouse against the other and there has
been no resumption of cohabitation for a period of one year or more after the decree was passed. either spouse can
file a suit for divorce Although this ground of divorce was introduced by the 1988 Amendment, it is irrelevant
whether the marriage was solemnized before or after the said date.

This ground of divorce is a simple and relatively straightforward ground in the sense that if the above conditions are
seen to exist. the court has no alternative but to pass a decree of divorce between the parties.

However, no decree for divorce can be passed on this ground if the plaintiff has failed or neglected to comply with
an order of maintenance passed against him under S. 40 of the Parsi Marriage and Divorce Act or under S. 125 or S.
488 of the Criminal Procedure Code

(xiii) Non-restitution of conjugal rights after decree for restitution of conjugal rights

If a decree for restitution of conjugal rights has been passed in a proceeding filed by one spouse against the other
and there has been no restitution of conjugal rights between the spouses for a period of one year or more after the
decree was passed, either spouse can file a suit for divorce. Although this ground of divorce was introduced by the
1988 Amendment, it is irrelevant whether the marriage was solemnized before or after the said date.

However, no decree for divorce can be passed on this ground if the plaintiff has failed or neglected to comply with
an order of maintenance passed against him under S. 40 of the Parsi Marriage and Divorce Act or under S 125 or S.
488 of the Criminal Procedure Code
(xiv) Divorce by mutual consent

In England the concept of divorce by mutual consent was introduced in 1969 ,and is today incorporated in the
Matrimonial Cause Act 1973 . In India. also, this concept exists in the matrimonial statutes governing Hindus.
Christians and Parsis.

Most of the grounds of divorce discussed above are based on the fault theory, i.e., that the petitioner who approaches
the court should be the innocent spouse. However, in divorce by mutual consent, the basic principle is that both
parties jointly approach the court, irrespective of the fact that one or both the parties are guilty of some matrimonial
offence or the other.

Originally. the Parsi Marriage and Divorce Act did not contain any provision for divorce by mutual consent. It was
the 1988. Amendment that introduced this concept into Parsi matrimonial law. This ground of divorce (which is
incorporated in S.32B of the Act) is available to the parties irrespective of whether the marriage was solemnized
before or after the said Amendment came into force. A suit for divorce can be filed by both the parties to the
marriage stating -
(a) that one year has elapsed since the date of the marriage;
(b) that the spouses have been living separately for a period of one year or more:
(c) that they have not been able to live together; and
(d) that they have mutually agreed that the marriage should be dissolved.

After hearing the parties and making such inquiry as it deems fit, if the court is satisfied that the above averments
are true and that the consent of either party was not obtained by force or fraud, it passes a decree declaring the
marriage to be dissolved with effect from the date of the decree.

As seen in an earlier Chapter. in every matrimonial adjudication under the Parsi Marriage and Divorce Act, five
delegates aid the judge on questions of fact. However, in the case of a divorce by mutual consent, there is no
adjudication and hence, the presence of delegates is not necessary (Minoo Shroff v. Union of India. 2005 (4) BLR
147)

As regards clause (b) above. the Supreme Court has observed (in Sureshta Devi v. Om Prakash, AIR 1992 SC 1904)
that ”living separately” means not living like husband and wife, and it has no reference to the actual or physical
place of living. Thus, by force of circumstances, the parties may be living under the same roof and yet they may not
be living as husband and wife. The same sentiments have been expressed by English courts when they have
observed that living together connotes something more than living in the same household. It means that parties are
living together as husband and wife, rather than as lodger and landlady. as in Fuller v Fuller (1973 1 WLR 730).

As regards clause (c) above. the Supreme Court has observed in Sureshta Devi’s case (referred to above) that the
expression shave not been able to live together” seems to indicate the concept of a broken-down marriage so much
so that there is no possibility of any reconciliation between the parties.

In Yasmin Karkaria v Cyrus Karkaria (2001 (1) Mah L J.). an application for divorce by mutual consent was filed
before the Bombay High Court by the spouses who were residing in the United States The plaint signed by both the
spouses was filed by an advocate who was appointed as their attorney under a power of attorney notarized by a
Notary Public in the USA. It was also placed on record that the parties had already obtained a divorce um a
competent court in the USA. Considering all these facts, the court passed a decree of divorce between the parties
under S 32B of the Act.

Withdrawal of consent after filing the petition

In cases of divorce by mutual consent, the consent of both the parties should be freely given. But the interesting
question which has sometimes arisen before various courts is - Can one of the parties approach the court and say that
although such consent was freely given, he or she has changed his or her mind and should be allowed to withdraw
such consent?
The view taken by the High Courts of Bombay, Delhi and Punjab and Haryana is that once a joint petition is filed
with the free consent of the parties, no party can unilaterally withdraw his or her consent. However, the High Courts
of Rajasthan, Kerala and Karnataka have taken a contrary view and held that one of the parties can withdraw his or
her consent even after the petition has been filed.

When this question was examined by the Supreme Court in 1992 (in Sureshta Davi’s case. referred to above), the
court took the view that such consent can be withdrawn by one of the parties if he or she has changed his or her
mind. However, five years later, the Supreme Court (in Ashok Hurra v.Rupa Bipin Zaveri, AIR 1997 SC 1266)
granted a divorce on a petition filed by mutual consent despite the fact that one of the parties purported to withdraw
such consent after the petition was filed. This was done because the court came to the conclusion that the marriage
had irretrievably broken down, leaving the question of subsequent unilateral withdrawal of consent open However.
the Supreme Court did observe that the decision in Sureshta Davi’s case needs to be reconsidered.

D. SUITS FOR JUDICIAL SEPARATION

’Judicial separation” is a concept which brings cohabitation between the husband and the wife to an end without
severing the marital bond Sometimes, parties may not want a divorce but may wish to have a formal and legally
recognised separation between them Such separation is thus separation from bed and board. A decree for judicial
separation does not dissolve the bond of marriage but merely suspends the marital rights and obligations whilst such
a decree is in force One logical consequence is that there cannot be ”desertion” after such a decree is passed.

Even after a decree for judicial separation is passed, the parties continue to be husband and wife in the eyes of law.
Therefore, if one of them dies without making a will, the other will succeed to his or her property Another logical
effect of the decree is that the spouses cannot remarry In fact, one of the spouses may seek this judicial remedy
mainly to ensure that the other spouse does not remarry.

Thus, a decree of judicial separation is quite different from a decree of divorce which ends the marriage by severing
the legal bond between the spouses. All their mutual rights and obligations came to an end with the decree of
divorce, the marriage tie is broken, they cease to be husband and wife and they can go their own ways and remarry if
they wish to. Not so under a decree of judicial separation.

Earlier, the Act contained certain grounds on which a party to a Parsi marriage could file a suit for judicial
separation. However, after the 1988 Amendment, it is provided by S.34 that either spouse can sue for judicial
separation on any of the grounds on which he or she could have filed a suit for divorce under the Act.

As seen earlier, if a decree for judicial separation has been passed on the application of one of the spouses and there
has been no resumption of cohabitation between the spouses for a period of one year or more after the passing of
such a decree, either spouse can file a suit for divorce under the Act on this ground alone.

AS seen above, when a suit is filed for divorce on the ground of the defendant’s cruelty, it is in the discretion of the
court to pass either a decree for divorce or a decree for judicial separation.

E. SUITS FOR RESTITUTION OF CONJUGAL RIGHTS

It is inherent in the institution of marriage that the spouses have not only the right, but also the duty to live in the
society of each other. When therefore, the defendant spouse has, without any lawful cause, ceased to cohabit with
the plaintiff or has deserted the plaintiff, the law allows the plaintiff to seek restitution of conjugal rights.

S. 36 of the Act provides that if one of the spouses has deserted, or without lawful cause, ceased to cohabit with the
other spouse, the party so deserted or with whom cohabitation has ceased may file a suit for restitution of conjugal
rights. If the court is satisfied about the allegations contained in the plaint and that there is no just ground why such
relief should not be granted. it may pass a decree for restitution of conjugal rights

As to what would be a just and lawful cause for refusal to cohabit is a question of fact to be determined by the
delegates in each case However, such grounds for refusal to cohabit should be grave and weighty and of such a
nature that they convert the due performance of marital obligations into a marital impossibility (Hirabai
v.Dhanjibhai. 2 BLR 845)

As seen earlier, if a decree for restitution of conjugal rights has been passed on the application of one of the spouses
and there has been no restitution of conjugal rights between them for a period of one year or more, either spouse can
file a suit for divorce under the Act only on this ground.

The matrimonial remedy of applying for restitution of conjugal rights has been discussed in an earlier Chapter and a
reference may be made to Chapter 7 of the Divorce Act, 1869, entitled ”Restitution of conjugal rights”. As stated in
the said Chapter. the validity of matrimonial laws providing for a decree of restitution of conjugal rights has been
upheld by the Supreme Court in Saroj Rani v. Sudershan, (AIR 1984 SC 1562) where it was held that such a
provision does not violate any fundamental right guaranteed by the Constitution of India.

F. ALIMONY AND MAINTENANCE — The word ”alimony” refers to the allowance granted by a court to a
spouse who is not living with his or her spouse The object of ordering such a payment is to provide such a spouse
with a source of maintaining himself or herself Modern English law, however, prefers the use of the term
”maintenance” in such cases.

As discussed in an earlier Chapter. alimony is of two types. Alimony pendente lite. i.e. alimony during the
matrimonial litigation, is the alimony which the court directs a spouse to pay to the other spouse during the
pendency of the litigation. Such alimony is, naturally, temporary in nature, to be paid until the legal proceedings are
disposed of the second type of alimony is permanent alimony which is granted by the court when passing the final
decree or even thereafter

S 39 of the Act provides that if in any suit filed under the Act, it appears to the court that either the husband or the
wife has no independent income which is sufficient for his or her support and the necessary expenses of the suit, the
court may. on an application filed by such a spouse order the other spouse to pay the expenses of the suit and such
other weekly or monthly sum during the pendency of the suit as it may seem reasonable to the court, having regard
to the income of the plaintiff as well as the income of the defendant. Such applications are, as far as possible, to be
disposed of within sixty days from the date of service of notice on the defendant.

Under S 40 of the Act, at the time of passing any decree or at any time thereafter, the wife or the husband may apply
to the court to order the other spouse to pay for her (or his) maintenance and support, such gross sum or such
monthly periodical sum for a term not exceeding the life of the plaintiff as may seem just to the court, having to -

• The defendants own income and other property;

• The plaintiff’s income and other property;
• The conduct of the parties; and
• The other circumstances of the case.

A suit cannot however, be filed only for alimony, without seeking any other matrimonial relief The Parsi
Matrimonial Court has no jurisdiction to pass an order for permanent alimony, not accompanied by an order for
some other matrimonial relief. (Gulabai Harver v. Behramsha Harver, 16 BLR 211)

The Bombay High Court has held that even if a wife makes a contract to give up future alimony, she can
nevertheless claim alimony under S. 40 of the Act after dissolution of her marriage. Even if such a contract is in the
form of a consent order between the parties, such an agreement is void as it is against public policy. (Hirabai
Bharucha v. Pirojshah Bharucha, 47 BLR 514)

If necessary, such an amount may be secured by a charge on the movable or immovable property of the defendant
and may be varied, modified or rescinded at any time thereafter at the instance of either party if there is a change in
the circumstances of either party after the order was passed. Likewise, the court may vary, modify or rescind the
order subsequently, -

(a) if the party in whose favour the order is made has remarried; or
(b) when such party is the wife, - if she has not remained chaste; or

(c) when such party is the husband, - if he has had sexual intercourse with any woman outside wedlock.

Whenever the court passes an order or decree for payment of alimony to the wife, it may direct that the same be paid
directly to her or to a trustee (approved by the court) on her behalf or to a guardian appointed by the court, on such
terms and conditions as may be imposed by the court. In such cases, the court also has the power to appoint a new
trustee or guardian if it appears to the court expedient to do so. (S 41)

A reference may be made to Chapter 9 of the Divorce Act. 1889, which deals with alimony under the said Act.
However, it is interesting to note that whereas the Divorce Act provides for payment of alimony only to the wife,
under the Parsi Marriage and Divorce Act, both the wife and the husband are entitled to apply for alimony

Changes brought about by the 1988 Amendment - Two important changes were introduced by the 1988 Amendment
of the Act Firstly before the said amendment, it was only the wife who could ask for alimony; now, even the
husband can Secondly earlier, if monthly maintenance was awarded by the court, it could not exceed one-fifth of the
respondent’s net income: now there is no such ceiling

G. MISCELLANEOUS PROVISIONS

Bar to matrimonial relief

Under S. 35 of the Act, the court can grant matrimonial relief under the Act only if it is satisfied -

(a) that any of the grounds set forth in the Act for granting relief exists;
(b) that none of the grounds set forth in the Act for withholding such relief exists;
(c) the act or omission set forth in the plaint has not been condoned;
(d) that there is no collusion between the spouses;
(e) that the plaintiff has not connived at the act or omission in question;
(f) that the plaintiff has not been accessory to the act or omission in question;
(g) that there has been no unnecessary or improper delay in filing the suit. except in those cases where the period of
limitation is specified by the Act itself; and
(h) that there is no other legal ground why relief should not be granted

Counter-claim by defendant

In any suit under the Act, the defendant can make a counterclaim for any relief to which he or she may be entitled
under the provisions of the Act. (S. 37)

Documentary evidence

S 38 of the Act provides that, notwithstanding anything contained in any other law, no document shall be
inadmissible in evidence in any proceeding at the trial of a suit under the Act on the ground that it is not stamped or
registered.

Disposal of joint property

Under S 42 of the Act, in any suit under the Act, the court may make such provisions in the final decree as it may
deem just and proper as regards the property presented to the couple at or about the time of marriage which may
belong jointly to both of them.

The Bombay High Court has held that this provision does not give jurisdiction to the Parsi Matrimonial Court to
deal with questions of title to property which was not joint property given to the spouses at or about the time of
marriage Disputes as regards all other property fall within the jurisdiction of ordinary civil courts, and not the Parsi
Matrimonial Court. (Banoo Daruwalla v. Jal Daruwalla, 65 BLR 750)
Suits to be heard in camera

The general rule is that legal proceedings should be conducted in open court with the dual purpose of ensuring
transparency and preventing any foul play. However, when this rule is applied to matrimonial proceedings, such a
procedure may embarrass or humiliate — or even torture — the parties, and in some cases, even the witnesses.

S. 43 of the Act therefore provides that all suits under the Parsi Marriage and Divorce Act are to be heard in camera,
i.e., behind closed doors where members of the public are not allowed. Moreover. the Act makes it unlawful for any
person to print or publish any matter in relation to such a case, except a judgment of the court printed or published
with the previous permission of the court. A breach of this provision attracts a fine which may extend to Rs. 1,000.

It is interesting to note that whereas the Hindu Marriage Act and the Special Marriage Act contain provisions almost
identical to the one in the Parsi Marriage and Divorce Act (above), i.e. a mandatory
direction to conduct matrimonial proceedings in camera, under the Divorce Act, such proceedings are to be
conducted behind closed dors only if the court thinks it fit to do so.

Provisions of Civil Procedure Code to apply

S. 45 provides that the provisions of the Civil Procedure Code shall, so far as the same may be applicable, apply to
proceedings in all suits under the Parsi Marriage and Divorce Act, including proceedings in execution and orders
which are passed subsequent to the decree.

Appeals Under S. 47, an appeal lies to the High Court from the decision of any court established under the Act on
the ground that the decision is contrary to some law or a usage having the force of law or on the ground of a
substantial error or defect in the procedure or investigation of the case which may have produced an error or defect
in the decision of the case upon its merits, - and no other ground There is no provision in the Act for appointment of
delegates at the appeal stage.

It has been held that a finding of fact which is not supported by evidence or an investigation amounts to a substantial
error and defect in procedure. (Jamshed Kalyanwala v. Zarina Kalyanwala, AIR 1974 Cal 111)

As seen earlier, with the leave of the court, a suit can be filed under the Act at the place where the plaintiff resides or
at the place where the spouses last resided together. An appeal can be filed in the High Court against the granting of
such leave.

All appeals under the Act are to be heard by a Bench of two Judges of the High Court and such appeals must be
filed within three calendar months from the date of pronouncement of the decision appealed from. There is no
provision for extension of this period for filing appeals.

When parties can marry again

When the time prescribed for appealing against any decree granting a divorce or annulling or dissolving a marriage
has expired and no appeal has been filed against such a decree, or when such an appeal has been filed and dismissed,
or when as a result of an appeal, a divorce has been granted or a marriage has been annulled or dissolved, it becomes
lawful for the parties to remarry (S. 48)

The underlying principle behind S. 48 is obvious If a spouse remarried immediately after the divorce decree, and
such decree is later set aside in appeal, the marriage between the parties is deemed to subsist. In such a case, such a
spouse would violate the rule of monogamy contained in the Act and expose himself to punitive measures both
under the Act as also under the Indian Penal Code.

It may be noted that the Act contains no prohibition on a divorced spouse from marrying the same person after
divorce or dissolution of the marriage

Applicability and binding nature of the Act

S 52 of the Act provides that a Pars; married under the Act or under the earlier Parsi Marriage and Divorce Act,
1865, is bound by the provisions of the Parsi Marriage and Divorce Act. 1936, even such spouse changes his or her
religion or domicile, so long as his or her spouse is alive and so long as such a Parsi has not been lawfully divorced
from the spouse or the marriage has not lawfully been declared to be null and void or dissolved by a competent
court under this or the earlier Act referred to above.

Thus, a marriage solemnized under the Act cannot be dissolved by any court other than a Parsi Matrimonial Court.
S. 52 thus prevents a Parsi spouse from creating jurisdiction of a court in some other country by changing his
domicile or residence or both after the Parsi marriage. Many experts in the field of matrimony have considered this
provision to be a master-stroke on the part of the legislature and have recommended the inclusion of a similar
provision in other matrimonial legislation like the Hindu Marriage Act, 1955.
Chapter 5 PROVISIONS REGARDING CHILDREN &
SETTLEMENT OF WIFE’S PROPERTY (Sections 49 & 50)

Ss. 49 and 50 of the Parse Marriage and Divorce Act make salutary provisions for the custody of children and for a
settlement of the wiles property for the benefit of her children.

Custody of children

Under S. 49 of the Act, in any suit under the Act, the court may, from time to time, pass such interim orders and
make such provisions in the final decree as it may deem just and proper with respect to the custody maintenance and
education of the minor children children under eighteen years of age) whose parents’ marriage is the subject-matter
of the suit Even after the final decree, any party may file a petition to make, revoke, suspend or vary any such decree
from time to time. It has been held that such an order can be passed even if the child is himself not residing within
the jurisdiction of the court (Ardesar v. Bhikabai, 27 BLR 280)

It is also provided that all applications with respect to maintenance of children should, as far as possible, be
disposed of within sixty days from the date of service of notice on the respondent

When it comes to custody of children, all courts are unanimous in their view that the welfare of the child is the
paramount consideration. In one case, the Bombay High Court refused custody of a female child to the divorced
mother on the ground that she was a working woman and therefore. would not be available to the child for the most
part of the day. In appeal. the Supreme Court found fault with this view, and keeping in mind the best interest of the
child, handed over the child’s custody to the mother However, since the child had undergone a great amount of
emotional strain whilst the parents fought this unhealthy battle, the Supreme Court ordered the child to be kept in a
boarding school. Since it was clear that the child was also quite attached to her father, the court allowed the father to
keep her for half the period of every vacation. The father, however, flouted this order and kept the child for a longer
period When the matter was once again taken to the High Court, the court found the father guilty of contempt of
court and sentenced him to detention in civil prison for three months. When the husband appealed to the Supreme
Court, it was held that the High Court was right in holding him guilty of contempt of court. However, since the child
was attached to the father, sending him to prison would add to the trauma of an already traumatized child As this
would not be in the interests of the welfare of the child, the Supreme Court let him off with a strict warning (Haste
Dholikuka v. Thrity Dholikuka, AIR 1982 SC 1457)

Settlement of wife’s property

S 50 of the Act then lays down that when the court pronounces a decree of divorce or judicial separation on the
ground of adultery of the wife, if it appears to the court that wife is entitled to any property - whether in possession
or reversion - the court may order such settlement as it shall think reasonable to be made for any part of such
property (not exceeding one-half thereof) for the benefit of the children of such marriage or any of them.
Appendix I

Questions & Short Answers

The Divorce Act, 1869

1. Before the Divorce Act was amended in 2001, what was the only ground available to a Christian husband for a
decree of dissolution of his marriage?

Answer
1. Before the 2001 Amendment, the only ground on which a husband could apply for a decree of dissolution of
marriage under the Divorce Act was adultery

2. Is there any ground of dissolution of marriage available only to the wife under the Divorce Act?
Answer
2. Yes, the Divorce Act allows a wife to apply for dissolution of her marriage on the ground that her husband has,
after the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

3. Is divorce by mutual consent possible under the Divorce Act? Was this ground always available under the Act?
Answer
3. Yes, S. 10A of the Divorce Act allows divorce by mutual consent. This ground has been available only after the
2001 amendment of the Act.

4. Before a divorce by mutual consent can be allowed under the Divorce Act, for how long should the parties to the
marriage have lived separately?
Answer
4. In a petition under the Divorce Act for divorce by mutual consent, the parties must state that they have been
living separately for a period of two years or more.

5. When can adultery of a spouse be deemed to have been condoned by the other spouse under the Divorce Act?
Answer
5. Under the Divorce Act, adultery of a spouse is deemed to have been condoned if conjugal cohabitation has been
resumed or continued between the parties.

6. What is meant by a ”decree nisi’? Is such a decree absolute in nature?

Answer
6. A ”decree nisi” is a conditional, and not an absolute, decree passed by a court. It is temporary or provisional in
nature and has to be confirmed by the court at a later stage

7. In cases of dissolution of a marriage under the Divorce Act, after what period of time can a decree nisi be made
absolute?
Answer
7. Under the Divorce Act a. decree nisi can be made absolute only after the expiry of six months.

8. What is the marital status of the spouses after a decree nisi is passed for dissolution of marriage under the
Divorce Act?
Answer
8. In such a case, the legal status of the parties does not change They continue to be husband and wife until the
decree nisi is made absolute.

9. State any four grounds on which a party to a Christian marriage can apply for a decree of dissolution of marriage
Answer
9. (1) Adultery

(2) Ceasing to be a Christian by conversion to another religion

(3) Being incurably of unsound mind for a continuous period of at least two years before filing the petition

(4) Suffering from a virulent and incurable form of leprosy for a period of at least two years before filing the
petition.

10. State any four grounds on which a party to a Christian marriage can pray for a decree declaring a marriage to be
null and void
Answer
10. (i) Impotency of the respondent

(ii) Parties to the marriage being within the prohibited degrees of consanguinity or affinity

(iii) Either party to the marriage being a lunatic or an idiot at the time of the marriage

(iv) Consent of either party having been obtained by force or fraud.

11. Name three grounds on which the court can pass a decree of judicial separation under the Divorce Act.
Answer
11. (a) Adultery

(b) Cruelty

(c) Desertion for two years or more.

12. Under the Divorce Act, if it is shown that the former husband or wife of a spouse was alive at the time of the
marriage and the marriage between that spouse and such husband or wife was in force, can the other spouse apply
for a decree of dissolution of marriage or for a decree of nullity?
Answer
12. In such cases, an application can be filed under the Divorce Act

for a decree of nullity, i.e., a decree declaring the marriage to be null and void

13. Under the Divorce Act what is the effect of a decree of judicial separation on property acquired by the wife after
such a decree is passed?
Answer
13 Under S 23 of the Divorce Act, after a decree of judicial separation is passed and whilst the separation continues,
the wife is to be considered as unmarried as regards any property she acquires or which comes to, or devolves upon
her after the decree is passed

14. What is a ”Protection Order’ under the Divorce Act?

Answer
14 Under the Divorce Act, a Protection Order is an order passed by the court in favour of the wife who has been
deserted by her husband to protect any property acquired by her or of which she is possessed or which she may have
acquired or become possessed of after such desertion. Such protection is available against her husband, his creditors
or any person claiming on behalf of the husband.

15. What are the defences which are not allowed to be pleaded on answer to an application for restitution of
conjugal rights under the Divorce Act?
Answer
15 When a suit is filed under the Divorce Act for restitution of conjugal rights, the defendant cannot plead in
defence anything which amounts to a ground for judicial separation or nullity of marriage under the Act.

16. Are provisions relating to restitution of conjugal rights contained in matrimonial laws unconstitutional on the
ground that they violate fundamental rights guaranteed by the Constitution of India?
Answer
16. The Supreme Court has held that a statutory provision relating to restitution of conjugal rights does not violate
any fundamental right guaranteed under the Constitution of India and the same is, therefore. valid (Salty Raw v.
Sudershan, AIR 1984 SC 1562)

17. In a matrimonial proceeding under the Divorce Act for dissolution of a marriage, can the court order the wife to
pay the costs of the suit?
Answer
17. Yes, in such a case, the court can order the wife to pay the costs of the suit provided she has separate property.

18. Can an appeal be filed under the Divorce Act only on the subject of costs?
Answer
18. No appeal can be filed under the Divorce Act only on the subject of costs

19 What is the difference between alimony pendente lite and permanent alimony?
Answer
19. Alimony pendent° life is a periodical amount ordered to be paid to a spouse during the pendency of the
matrimonial litigation. Permanent alimony is a gross or periodical amount ordered to be paid by one spouse to
another when passing the final decree in a matrimonial suit.

20 What are the three considerations which the court must keep in mind under S. 37 of the Divorce Act when
granting permanent alimony to a wife?
Answer
20. When granting permanent alimony to a wife, the court must have regard to
(i) the wife’s fortune (i.e. her property),
(ii) the (financial) ability of the husband and
(iii) the conduct of the parties.

21. What provisions are made in the Divorce Act as regards ante-nuptial and post-nuptial settlements made on the
parties to a marriage?
Answer
21. Under S. 40 of the Divorce Act, before passing a decree for dissolution of a marriage or a decree of nullity of a
marriage, the court must inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties
whose marriage is the subject of the court’s decree.

22 Does the Divorce Act make any provision regarding the custody, maintenance and education of minor children
of the spouses involved in matrimonial litigation? If yes, name the sections of the Act which deal with this topic.
Answer
22. Sections 41, 42, 43 and 44 of the Divorce Act make provisions for the custody, maintenance and education of
children of the spouses who are involved in matrimonial litigation under the said Act.

23 Do provisions of the Civil Procedure Code apply to matrimonial proceedings under the Divorce Act? If yes, to
what extent?
Answer
23. The provisions of the Civil Procedure Code (CPC) apply to matrimonial proceedings under the Divorce Act.
However, if there is any specific provision in the Divorce Act which is contrary to that in the CPC, such provision,
and not the one in the CPC, would be applicable.

24. Can a matrimonial proceeding under the Divorce Act be filed by, or on behalf of, a minor or a lunatic? If yes,
who can file such a proceeding?
Answer
24. Yes, such proceedings can be filed under the Divorce Act. If the petitioner is a minor, the petition can be filed
by his or her ”next friend” approved by the court. If the petitioner is a lunatic, the petition (except one for restitution
of conjugal rights) can be filed on his or her behalf by the committee or other person entitled to his or her custody.

25. Is it mandatory for the court under the Divorce Act and the Parsi Marriage and Divorce Act to conduct
proceedings in camera?
Answer
25. Under the Parsi Marriage and Divorce Act. all matrimonial proceedings are to be conducted in camera.
However, under the Divorce Act, proceedings are to be conducted in camera only if the court thinks it fit to do so.

26. To which parts of India does the Indian Christian Marriage Act not apply?
Answer
26 The Indian Christian Marriage Act does not apply to those territories of India which immediately before 1 st
November, 1956 were comprised in the States of Jammu and Kashmir, Manipur and the erstwhile State of
Travancore-Cochin.

27. What is the definition of a ”church” under the Indian Christian Marriage Act?
Answer
27. The word ”church” is defined in the Indian Christian Marriage Act as including any chapel or other building
generally used for public Christian worship.

28. What is meant by the ”Church of Rome” under the Indian Christian Marriage Act?
Answer
28. Under the Indian Christian Marriage Act, the ”Church of Rome” means the Church which regards the Pope as
its spiritual head

29. Name three categories of persons who can solemnize a marriage in India under the Indian Christian Marriage
Act.
Answer
29. Under the Indian Christian Marriage Act, a marriage may be solemnized — (a) by a Clergyman of the Church
of Scotland: (b) by a Minister of Religion licenced under the Act: (c) by, or in the presence of, any person licenced
under the Act to grant certificates of marriage between Indian Christians

30. Can a Marriage Registrar appointed under the Indian Christian Marriage Act be a non-Christian ?
Answer
30. No. Under the Indian Christian Marriage Act, a Marriage Registrar appointed under the Act should be a
Christian.

31. In what circumstances does the Indian Christian Marriage Act envisage the appointment of a Senior Marriage
Registrar?
Answer
31. If there are more than one Marriage Registrars in a given district, one of them is appointed by the State
Government as the Senior Marriage Registrar.

32. If there is only one Marriage Registrar in a district and he goes abroad for some time, who will officiate as the
Marriage Registrar in his absence?
Answer
32. In such cases, the Magistrate of that district will act as the Marriage Registrar during such a period.

33. Who is authorised to grant and revoke licences to solemnize marriages under the Indian Christian Marriage Act?
Answer
33. The State Government is authorised to grant and revoke licences to solemnize marriages under the Indian
Christian Marriage Act.

34. Is there any time of the day fixed by law for solemnization of Christian marriages?
Answer
34. Every marriage under the Indian Christian Marriage Act must be solemnized between 6 a.m. and 7 p.m. (subject
to exceptions contained in the said Act).

35. Name two circumstances in which a Christian marriage solemnized by a Clergyman of the Church of England is
valid even if not solemnized in a church.
Answer
35. (1) If there is no such church within five miles of such a place.
(2) If the Clergyman has a special licence from the Anglican Bishop of the Diocese or his Commissary authorising
him to do so.

36. Can a marriage be solemnized in a private dwelling under the Indian Christian Marriage Act?
Answer
36. Yes, a marriage under the Indian Christian Marriage Act can be solemnized in a private dwelling by a Minister
of Religion licenced under the Act provided the prescribed notice is given in the prescribed form under the said Act.

37. Who is authorised to give consent to a marriage under the Indian

Christian Marriage Act if a party to an intended marriage is a minor ?
Answer
37 In such a case, the father, if alive, is the only person who can gave such consent. If the father is dead, the
guardian of the minor, and if there is no guardian, the mother of the minor can give consent to the minor’s marriage.

38. Within what period of time is a Christian marriage to be solemnized after issue of a certificate by a licenced
Minister of Religion under the Indian Christian Marriage Act?
Answer
38 A Christian marriage must be solemnized within two months from the date of the certificate issued by a licenced
Minister of Religion under the Indian Christian Marriage Act.

39. When a marriage is solemnized by a Marriage Registrar under the Indian Christian Marriage Act, what is the
remedy if the person authorised to give consent for the marriage of a minor is of unsound mind?
Answer
39 In such cases, a petition can be filed by the parties to the intending marriage before a Judge of the High Court if
the person whose consent is necessary resides in Mumbai, Chennai or Kolkata and before the District Judge in other
cases, and such Judge must examine the petition in a summary manner after which he can declare the marriage to be
a proper marriage.

40. What is the legal consequence if a frivolous protest is lodged with the Marriage Registrar claiming that the
consent of the person lodging the protest was required by law and that such consent has not been given?
Answer
40 In such a case, the person lodging the frivolous protest is liable for the costs of all the proceedings relating to
such protest. Additionally the person against whom such a protest was lodged can claim damages from him by a
separate suit for recovery of such damages

41. When the notice of an intended marriage is noted by the Marriage Registrar in the Marriage Notice Book, is
there any time period within which the marriage must be solemnized? If yes. what steps should the parties to the
intended marriage take in such a case to have their marriage solemnized after this period?
Answer
41 If a marriage is not solemnized within two months after the copy of the notice has been entered by the Marriage
Registrar in the Marriage Notice Book, the notice, the certificate, if any, issued on it and all other proceedings
become void If the parties wish to solemnize their marriage after this period, a fresh notice has to be given and the
entire process has to be gone through once again.

42. What is the amount of the application fee for a marriage certificate
under S. 61 of the Indian Christian Marriage Act?
Answer
42. The application fee mentioned in S. 61 of the Indian Christian Marriage Act for the grant of a marriage
certificate is ”four annas i.e., twenty-five paise

43. When a notice of marriage is required under the Indian Christian Marriage Act and a person intentionally signs
a false notice, what is the penalty to which he exposes himself?
Answer
43. In such a case, the person is deemed to have committed an offence under S. 193 of the Indian Penal Code and
can be sentenced to imprisonment for a term upto three years and is also liable, at the discretion of the court, to pay
a fine.

44. What is the penalty which can be imposed on a person who knowingly and wilfully solemnizes a marriage at a
time other than between 6 a.m. and 7 p.m., not having any authority under the Indian Christian Marriage Act to do
so?
Answer
44. Such a person is liable to imprisonment upto three years as well as to pay a fine.

45. What is the penalty which can be imposed on a person who knowingly and wilfully solemnizes a marriage in
the absence of at least two credible witnesses (not counting the person solemnizing such a marriage)?
Answer
45. Such a person is liable to imprisonment upto three years as well as to pay a fine.

46. Is there any penalty imposed on the Marriage Registrar by the Indian Christian Marriage Act if he solemnizes a
marriage after the expiry of two months from the date on which notice of the intended marriage has been entered in
the Marriage Notice Book?
Answer
46. Yes; in such a case, the Marriage Registrar can be punished with imprisonment upto five years and can also be
made to pay a fine.

47. What is the maximum punishment which can be awarded to a person who wilfully destroys any part of a
register book under the Indian Christian Marriage Act or wilfully enters any false entry therein?
Answer
47. Such a person can be punished with imprisonment upto seven years and can also be made to pay a fine.

48. Is there any time limit for commencing a prosecution for an offence punishable under the Indian Christian
Marriage Act? If yes, state such time limit.
Answer
48. Prosecution for any offence punishable under the Indian Christian Marriage Act must be commenced within two
years from the date on which the offence is committed.

49. If the person in charge of a register of marriages later discovers an error in an entry made by him therein, can he
rectify such an error? If yes, within what period of time can he do so?
Answer
49. Yes. Such an error can be rectified by him by an entry in the margin signed by him in the presence of the parties
to the marriage, or in case of their death or absence, in the presence of two other credible witnesses who must also
attest such a marginal entry. This must be done within one month from the date of discovery of such an error.

50. Which authority is empowered under the Indian Christian Marriage Act to fix the amount of fees to be charged
under the Act for issuance of marriage certificates by the Marriage Registrar under the said Act?
Answer
50. The State Government is empowered under the Indian Christian
Marriage Act to fix the amount of fees to be charged for issuance of marriage certificates by Marriage Registrars
under the Act.

The Parsi Marriage and Divorce Act, 1936

51 What is the definition of the term ”marriage in the Parsi Marriage and Divorce Act?
Answer
51. Under the Parsi Marriage and Divorce Act, the term -marriage” means a marriage between Parsis, whether
contracted before or after the commencement of the said Act.
52 State any two changes introduced in the Parsi Marriage and Divorce Act by the 1988 Amendment.
Answer
(1)The minimum age for marriage was fixed at 21 years for males and 18 years for females
(2) The concept of divorce by mutual consent was introduced in the Act

53 What are the elements of ”desertion” as the term is defined in the Parsi Marriage and Divorce Act?
Answer
53. Under the Parsi Marriage and Divorce Act. 1936. ’to desert’ means to desert the other party to the marriage
without reasonable cause. Such desertion must also be either without the consent or against the will of the other
party to the marriage

54 Does the Parsi Marriage and Divorce Act contain any provision for the registration of Parsi divorces?
Answer
54. Yes: S. 10 of the Parsi Marriage and Divorce Act provides for registration of divorces under the said Act.

55 What is the nomenclature of the court which deals with matrimonial matters of Parsis in the Presidency-towns?
Who officiates as a Judge of such a court?
Answer
55. The court constituted in the Presidency-towns to hear matrimonial matters between Parsis is called the Parsi
Chief Matrimonial Court of Mumbai, Chennai or Kolkata, as the case may be The Chief Justice of the High Court or
some other Judge of the High Court as the said Chief Justice may appoint from time to time, sits as the Judge of the
Parsi Chief Matrimonial Court.

56 How many delegates assist the Judge in Parsi matrimonial matters? Name two matters which he outside the
purview of such delegates
Answer
56. In the trial of matrimonial matters under the Parsi Marriage and Divorce Act. the Judge is aided by five
delegates. Two matters which lie outside the purview of the delegates are,
(a) interlocutory applications and proceedings.
(b) custody. maintenance and education of children.

57 Who appoints delegates under the Parsi Marriage and Divorce Act and how? Can a non-Parsi be such a
delegate?
Answer
57. Only Parsis can be delegates under the Parsi Marriage and Divorce Act and such delegates are appointed by the
State Government by publishing their names in the Official Gazette

58. Can a party to matrimonial litigation ”challenge the appointment of some or all of the delegates as far as his
case is concerned? Can this be done at the appellate stage?
Answer
58. A party to the litigation can challenge the appointment of any two delegates without giving any reason before
the delegates are selected for his or her case. This cannot, however, be done at the appellate stage. (Dinbai v.
Franwoz, AIR 1918 Nag 77)

59. Is a party to Parsi matrimonial litigation allowed to engage a legal practitioner to plead his case? If yes, whose
prior permission is necessary for this purpose?
Answer
59. A party to the matrimonial litigation under the Parsi Marriage and Divorce Act can engage a legal practitioner
of his choice to represent him and plead on his behalf. No permission is required for this purpose.

60 Name one ground for filing a suit for dissolution of a Parsi marriage
Answer
60. A suit for the dissolution of a Parsi marriage can be filed on the ground that one of the spouses has been
continually absent for a period seven years or more and has not been heard of as being alive by those persons who
would naturally have heard of him or her had he or she been alive
61. Name two grounds on which a suit for divorce under the Parsi Marriage and Divorce Act can be filed.
Answer
61 (1) Non-consummation of the marriage within one year after its solemnization owing to the wilful default of the
defendant to consummate it
(2) That the defendant was of unsound mind at the date of the marriage and has been habitually so upto the date of
the suit.

62. How is ’mental disorder’ defined for the purposes of the Parsi Marriage and Divorce Act?
Answer
62 The expression ”mental disorder has been defined to mean mental illness, arrested or incomplete development of
mind, psychopathic disorder or any other disease or disability of mind, including schizophrenia. ”Psychopathic
disorder in turn means a persistent disorder or disability of mind (whether or not accompanied by subnormality of
intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the defendant,
whether or not such disorder or disability requires or is susceptible to medical treatment.

63. Can a divorce be granted under the Parsi Marriage and Divorce Act on the ground that the defendant is
undergoing a sentence of imprisonment for five years?
Answer
63. No Such imprisonment should be for a period of seven years or more and that too for an ’’offence” as defined in
the Indian Penal Code Additionally, the defendant should have undergone at least one years imprisonment before the
suit for divorce can be filed

64. Name the sexual acts and offences committed after marriage which entitle the other spouse to sue for divorce
under the Parsi Marriage and Divorce Act.
Answer
64. If the defendant has committed adultery, fornication, bigamy, rape or an unnatural offence, the other party to
the marriage may sue for a divorce on such grounds. Such a suit must, however, be filed within two years from the
date on which the plaintiff came to know of the act.

65. Name one ground which is available for judicial separation, but not for divorce under the Parsi Marriage and
Divorce Act.
Answer
65 There is no such ground under the Parsi Marriage and Divorce Act All the grounds of divorce are also grounds
for judicial separation under the said Act.

66. State any two consequences of judicial separation.

Answer
66. Since the parties continue to be husband and wife in the eyes of law. (1) they cannot remarry, and
(2) if one of them dies without making a will, the other succeeds to his or her property.

67. Name two grounds which act as a bar to matrimonial relief under the Parsi Marriage and Divorce Act, 1936.
Answer
67 Matrimonial relief can be refused
(1) if there is collusion between the parties. or
(2) if the plaintiff has condoned the defendant’s act or omission set forth in the plaint.

68. Can a document which is not duly stamped or registered be admitted in evidence in any proceeding at the trial
of a matrimonial suit under the Parsi Marriage and Divorce Act?
Answer
68. Yes. S. 38 of the Pars’ Marriage and Divorce Act provides that notwithstanding anything contained in any other
law, such a document is admissible at the trial of a suit under the said Act.

69. State two changes brought about in the Parsi Marriage and Divorce Act by the 1988 Amendment as regards
alimony and maintenance.
Answer
69. (1) Before the 1988 Amendment, only the wife could ask for alimony and maintenance; after the amendment, an
application for alimony can also be filed by the husband against his wife.
(2) Earlier, if monthly maintenance was awarded by the court, it could not exceed one-fifth of the respondent’s net
income; after the said amendment, there is no such ceiling.

70. How many Schedules does the Parsi Marriage and Divorce Act contain ?
Answer
70. The Parsi Marriage and Divorce Act contains two Schedules.