THE INDIAN DIVORCE (AMENDMENT) ACT 2001: A CRITIQUE

Author(s): Kusum
Source: Journal of the Indian Law Institute, Vol. 43, No. 4 (October-December 2001), pp.
550-558
Published by: Indian Law Institute
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 THE INDIAN DIVORCE (AMENDMENT)
ACT 2001: A CRITIQUE

I Introduction

AT LONG last, a law, the Indian Divorce Act, 1869, which today deser
a place kin the museum of antiquities' has been amended and liberaliz
to suit the needs of changing times. The Indian Divorce (Amendm
Act, 2001 (51 of 2001) which received the assent of the President on
September 24, 2001, has not only revolutionized the Christian divorce
law but is also a big leap forward towards the goal of a uniform divorce
law.

It is common knowledge that the demand and debates on the need for
a uniform civil code have been going on for decades. The constitutional
directive1 that "the state shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India" is still a far cry.
However, while an overt enactment of a uniform civil code involves
religious, communal and political sensitivities, piecemeal reform of
different personal laws could help achieve the goal imperceptibly. And
indeed, the Indian Divorce (Amendment) Act, 2001, is a positive step in
that direction.

1 here have been vociferous debates by several organisations,

commissions, jurists and academics for amendment of the over a century
and three decades old Indian Divorce Act, 1869 (hereinafter IDA). The
Act, as is well known, was not only outdated and harsh but also
discriminatory - the discrimination being gender based as also religion
based. It was altra vires on the touchstone of constitutional mandate of
equality and non-discrimination as also unfair to Christian spouses living
in a tempestuous marital relationship. The Law Commission of India had
been recommending reform since I9602 and the judiciary too had been
criticizing and lamenting the inequitable provisions in the Act, in strong
terms, in the words of Mr. Justice Alagiriswami:3

I . Art. 44.

2. See, 1 5th Report on Law Relating to Marriage and Divorce amongst Christians
in India (1960); 22nd Report on Christian Marriage and Matrimonial Causes Bill
( 1961 ); 90th Report on G rounds of Divorce amongst Christians in India. See also,
s. 10. Indian Divorce Act, 1869.
3. S.D. Selva raj v. C. Mary , 1968 ML J (1) 289 at 294.

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 200 1 I NOTES AND COMMENTS 55 1

The Indian Divorce Act, 1869 is

were exact copies of the Eng
1857.... The law had been ame
by the Matrimonial Causes Ac
wife on equal footing. The M
added some more grounds for
the Hindu Marriage Act is prac
present. The Parsi Marriage Ac
more or less on the same basis
the IDA which applies to Christ
times.

The following remarks of the Andhra Pradesh High Court in Hemlatha

Satyanarayan4 are equally pertinent:

It is somewhat strange that in the second half of the 20th century,

a Christian wife is not in a position to get a decree for dissolution
of marriage on ground of cruelty only or adultery only. The IDA
was modeled on the English Matrimonial Causes Act, 1857.
Whereas the law has been amended in England from time to time
and the position is that... the decree of divorce can be granted on
ground of cruelty, the law in India under the IDA unfortunately
is unchanged.... It is incongruous to allow such discriminatory
provision after the coming of the Indian Constitution guaranteeing
equal protection of law and prohibiting discrimination.

The Madras High Court5 referred to the Act as "highly antiquated"

and emphasized the "urgent need for reexamination of the provisions.
In some cases the courts have also been issuing directions to t
government to look into it and make necessary amendments6 . The Ac
however, withstood the rigours of protests and criticism all these decad
It goes to the credit of the Kerala High Court which, in its judgment
Amniiiu E.J. v. Union of India1 , not only strongly assailed t
discriminatory divorce provisions under section 10 of the Act but also
struck down certain phrases in order to provide meaningful relief to
wife. The words and phrases 'incestuous' and 'adultery coupled wit
used in the section were held to be severable and not inextricable from t
rest of the section and were accordingly struck down as being ultra vir

4. AIR 1979 AP 1 at 2.
5. T.M. Bashiam v. M. Victor , AIR 1970 Mad 12.
6. See e.g., Sardana Mani v. G. Alexander , AIR 1998 AP 157; Mary Soniz
Zacharia v. ILO.l.s 1990 (1) KLT 131; Ms. Jordern Diengdoh v. S.S Chopra , AIR
1985 SC 953; Reynold Rajmani v. U.O.I. , AIR 1982 SC 1261.
7. AIR 1995 Ker 252.

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552 JOURNAL OF THE INDIAN LA W INSTITUTE ' [Vol. 43 : 4

articles 14, 15 and 21 of the Constitution. As a result, a wi

be entitled to seek dissolution of marriage on grounds of d
cruelty as well along with adultery. However, in the absence
amendment the binding effect of the High Court judgm
courts, would have been a matter of debate and discretion. Besides, the
judgment enlarged the grounds available to a wife only. The solitary
ground available to a husband, viz., adultery, remained untouched. Thus
no amount of criticism, suggestions, recommendations or even pruning of
the statute could have any real meaning without legislative intervention
which has now come.

II The Act

A brief reference may be made of some of the provisions in the

which were harsh and discriminatory - the grounds for divorce were
limited and difficult to prove; a husband could file a divorce petition
on grounds of wife's adultery; a wife seeking dissolution of marriage
to prove another matrimonial wrong like desertion, cruelty, conver
bigamy etc along with adultery8 . Thus, it was equally difficult for
parties to prove adultery or adultery coupled with another matrimo
wrong to get out of an unhappy marriage.
Even when both parties felt that the marriage was unworkable a
they cannot pull on together, there was no provision enabling them to
by mutual consent, unlike the provisions in the Special Marriage
1954 (SMA)9 ; Hindu Marriage Act, 1955 (HMA)10 ; and the Parsi Marr
and Divorce Act, 1936 (PMDA)11 as amended in 1988. There have
cases where even the courts realized the hardship of the parties and
futility of retaining the marriage tie but in the absence of any provi
no effective relief could be given.
For instance, in Mary Soniz Zachariah v. Union of India12 the Ker
High Court strongly denounced the "unrealistic and unhelpful" provis
of the IDA. It pointed out the manner in which some of the spouses
wish to get out of a broken marriage "invented devices to wriggle o
the imbroglio" and "those who are not willing to adopt dishonest dev
continue to suffer without escape under the primitive marriage law".
court directed the Union of India to take steps for amending the
within six months.

8. S. 10.
9. S. 28.
10. S. 13 B.
11. S. 32 B.
12. 1990 (1) KLT 131.

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 200 1 I NOTES AND COMMENTS 553

In Jorden Diengdeh 13 the Supr

hardship inflicted on the wife but i
on the ground of cruelty and not div
under the Indian Christian Marriage
divorce by mutual consent under
Court of Delhi as well as the Suprem
by the IDA which does not permit di
after long years of litigation, no pr
D. Pcidmavathv v. Christodass 15 was a hard case where the wife
sought dissolution on grounds of cruelty and adultery. The district court
granted the decree but in confirmation proceedings under section 17 the
high court held that adultery was not proved so only judicial separation
and not divorce could be granted. The court observed:16
...we are satisfied that there is sufficient evidence, both of the
petitioner and the witnesses who corroborate her concerning
great cruelty of the respondent towards petitioner. But
unfortunately for the petitioner, such cruelty per se is not a
ground for dissolution of the marriage under section 10....
Section 10 of the Act was unsuccessfully challenged before the High
Court of Madras in Dwcirka Bai v. Nainan 17 where the court was fully
convinced of the extreme hardship to the wife but was helpless.
Panchapakesa Ayyar, J. speaking on behalf of the court, remarked:
I am satisfied that if the petitioner goes back to the respondent,
he will make her life miserable and that this couple can never live
again in peace and amity on earth. But unfortunately, that
conclusion will not go granting a divorce when the law will not
allow it. The Judge is not the person to decide the interest of
society....
The provision requiring confirmation of a decree of dissolution18
only added to the multiplicity of proceeding and hence delay and further
harassment. None of the other divorce statutes have a provision requiring
mandatory confirmation of a divorce decree. In fact, in several cases the
courts had expressed their anguish and dissatisfaction over this requirement
of compulsory confirmation hearing. To make matters worse, in several
cases, the high courts have refused to confirm decrees passed by the

13. AIR 1985 SC 953.

14. Reynold Rajamani v. U.O.I. , supra note 6.
15. AIR 1970 Mad 188.
16. /,/. at 189.
17. AIR 1953 Mad 792 at 799.
18. S. 17. It is significant to note that the state of U.P. had done away with this
provision way back in 1957 vide an amendment.

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554 JOURNAL OF THE INDIAN LAW INSTITUTE | Vol. 43 4

district court. Such refusal in no way solves the prob

the parties to live in a state of limbo.
In Swapna Ghosh v. Sadananada Ghosh™ , the C
assailed the provision as being discriminatory. It obs

The provisions of section 17, even assuming that t

days when enacted in the mid-nineteenth century
outlived their purposes particularly in the contex
enactments relating to matrimonial laws govern
communities... and only results in protracting and
litigation even where none of the parties is in a m
further review or reconsideration of their cases b
court.

The court further remarked:21

Have not the Christian spouses been denied procedural

reasonableness and due process by... providing for compulsory
confirmation hearing in the context. of the spouses belonging to
other communities, whose matrimonial proceedings are not subject
to any such further hearing.
In his concurring opinion Justice Ajit Kumar Nayak referred to it as a
"mid Victorian vintage"22 .
Under section 34 a husband, in a suit for dissolution or separatio
may claim damages from any person on the ground of his having committed
adultery with his wife. Thus, the wife was considered to be a piece
chattel or property over which the husband alone had domain and any o
who committed trespass was liable to pay damages for the same. The Law
Commission had discussed this provision in its 15th Report23. Whi
conceding that it is undoubtedly strange to Indian sentiment that adulter
should be a matter for compensation, the Report recommended retentio
ot the provision as "that has been the law well settled in the Christian
community for centuries...". It, however, recommended that the provisio
be made applicable not only to a husband as against an adulterer but als
to a wife as against an adulteress in case of suit for divorce or judicial
separation. This remained a mere recommendation until the amendmen
made vide the present Act of 2001 has done away with section 34 in toto

19 AIR 1989 Cal I.

20. Id. at 2-3.
21. Id. at 3.
22. Id. at 6.
23. Supra note 2 at 32-33.

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 2(K) I I NOTES AND COMMENTS 555

III The changes

The amended Act has brought about significant changes in the
Christian divorce law. In fact, it has been brought almost at par with the
Special Marriage Act (SMA), Hindu Marriage Act (HMA) and the Parsi
Marriage and Divorce Act (PMDA). The divorce provisions have been
liberalized by adding more grounds for relief and the gender-based
discrimination that existed in the Act has been removed too. The following
is a brief analysis of the salient features of the amended Act.
Section 10 has been totally refrained. A petition for divorce can now
be filed on any of the grounds of adultery, conversion, unsoundness of
mind, leprosy, venereal disease, willful refusal to consummate marriage
non-compliance with a decree of restitution for a period of two years or
above, desertion, and cruelty. It is significant to note that these grounds
are available to both husband and wife equally. In fact, a wife has been
given one additional ground, viz. the husband has since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality.
Divorce by mutual consent has been introduced by inserting a new
section 10-A. This is a welcome change because where both the parties
are convinced that they cannot live happily together and their marriage
should be dissolved, it is expedient that the courts should facilitate the
same gracefully rather than impel the couple to simply mechanically
continue in a legal, but practically dead, relationship. However, unlike
the SMA, HMA and PMDA where the period of separation for at least one
year before filing the petition is prescribed, section 10 A of the IDA has
laid down a minimum period of two years of separation. The legislators
probably felt that a period of separate living for one year was not long
enough to test the success or failure of a marriage so as to entitle them to
seek a divorce by consent24 .
Section 1 1 of the Act relating to the joinder of adulterer as co-
respondent has been made gender equal. It would be pertinent to note that
this section was a subject matter of debate by the Law Commission way
back in I9602* . The issues raised were: (a) whether the rules relating to
the joinder of an adulterer should be enacted in the section itself as under
section 1 1 or whether they should be left to be framed by the high court
in the exercise of its rule making authority; (b) whether the grounds set
out in the section dispensing with the joinder of adulterer need to be
enlarged; (c) whether the adulteress should be made a party when a

24. The 15th Report of the Law Commission had turned down the suggestion for
incorporating mutual consent as a ground for divorce. At that time there was no such
ground available under the HMA also. The Law Commission, accordingly,
recommended, "There is no reason for treating sacramental marriages between
Christians differently from those between Hindus. We have not, accordingly, provided
tor divorce being granted on mere consent of parties".
2:>. See, 15th Report, supra note 2 at 31-32.

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 55(> JOURNAL OF THE INDIAN LAW INSTITUTE ļ Vol. 43 4

petition for divorce is presented by the wife on the gro

whether the requirement of making the adulterer or
should be extended to petitions for judicial separat
approving the retention of the requirement of joinder
statute itself the Law Commission recommended th
grounds for dispensing with the requirement of joinde
down in the Act, the courts should have discretionary
cases to excuse impleadment; the husband and wife sh
the same footing and, therefore, the adulteress also sh
as co-respondent; and that the requirement should be exten
for judicial separation as well. Barring the first, none of the
recommendations fructified until the enactment of the Indian Divorce
(Amendment) Act, 2001 which provides that even an adulteress should be
made a party when petition for divorce is filed by the wife on the grounds
of husband's adultery.
Another significant reform made in the Act is the deletion of section
34. Thus, there can be no claim for damages against an adulterer as in the
original Act, nor against an adulteress as recommended by the Law
Commission.

IV Conclusion

While the Act has been by and large transformed and brought at p
with other matrimonial statutes in the country (barring Muslim law
certain variations and lacunae which could have been looked into, ma
noted.

The ground of non-compliance of a decree of conjugal rights is

available only to a person who is a decree holder. Thus, whereas under
the SMA, the HMA and the PMDA26 either the decree holder or the
judgment debtor can seek a divorce on ground of non- compliance of a
restitution decree, under IDA this ground is available only to the party in
whose favour the decree is awarded. Also, the period of non-compliance
is two years as against one year under the SMA, the HMA and the PDMA.
Besides, the IDA does not provide for non-resumption of cohabitation
after a decree of judicial separation as ground for dissolution of marriage.
It may be pointed out here that the Law Commission, vide its 15th Report
had recommended that if there is no resumption of cohabitation for a
period of two years or more after a decree of judicial separation then
either party may ask for divorce on that ground27 . The legislators, however,

26. S. 13 (A)(i), Hindu Marriage Act; s. 27 (2) (i), Special Marriage Act and s. 32
A, Parsi Marriage and Divorce Act.
27. 15th Report, supra note 2 at 64.

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 200 1 1 NOTES AND COMMENTS 557

have not incorporated this in the pres

All matrimonial laws lay down certa
may be declared void or voidable. T
legitimacy of the children and their rig
however, to note that while the SMA
enough to confer the status of legitim
which is void or voidable for any
respective clauses28 , the IDA is very
Act as originally enacted, and which
annulment of the marriage in two
legitimacy to children born of the m
during the subsistence of the first ma
spouse was not alive, and (b) insanity
to succeed in the same manner as legi
the parent who at the time of the ma
One fails to understand the justi
legitimacy. Why should children bor
degrees of consanguinity or affinity
of a marriage where the responden
contravened the former condition what is the fault of children? In the
latter situation, the law-makers perhaps assumed that impotency could
never lead to children but now with the advancement of medical procedures
of assisted reproduction, it has become possible for impotent, sterile and
barren men/women to become parents. Agreed, in 1869 when the Act was
first enacted, such advancements could not have been visualized but since
the law has been amended so recently when assisted reproduction is not
only a reality but resorted to by couples unable to produce naturally or
biologically, the law makers could have taken note of it. Besides, it is also
unfair to confer the right to succeed to the properties, only of that parent
who at the time of marriage was competent to contract. None of the other
laws which provide for legitimisation of children of void marriage,
impose such restriction.
Another aspect of the Christian divorce law which needs mention is
that unlike the SMA, HMA and PMDA, a claim for maintenance and
alimony pendente lite can be filed only by a wife. The fact however is that
men no longer are the sole bread winners since women also are taking up
jobs and entering into business/profession and having an income of their
own. Recognizing this fact, it has been provided under other matrimonial
laws that in certain circumstances, an indigent husband too could be
entitled to seek maintenance from his earning wife. Even though the

28. Ss. 24, 25, Special Marriage Act; ss. 11,12, Hindu Marriage Act; s. 3(2), Parsi
Marriage and Divorce Act.

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55X J Ol 'RN AL OF THE INDIAN LA W INSTITI 'Tli | Vol 43:4

number of cases where a husband seeks maintenance m

provision entitling him to do so should have been inco
too.

All said, the amended law has considerably changed and reformed the
Christian divorce law and procedure, The process had a long period o
gestation but, at last, well delivered.

Kusum*

* M.A., LL.M., Research Professor, Indian Law Institute.

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