Indian Divorce Act

Indian Divorce Act governs the divorce of Christian couples in India. Divorce is the legal dissolution or end of a marital union between a man (or woman). The CourtCourt of law grants the separation after receiving a petition from either spouse or husband. After a divorce, the Court awards alimony, child custody, visitation, and distribution of property. The fact that divorce proceedings in the United States are legal for Christians is something to consider before deciding to divorce. We will be discussing The Indian Divorce Act in greater detail.

The Indian Divorce Act: An Overview

In 1869, the Indian Divorce Act was adopted into Indian law. India’s divorce laws and procedures vary depending on the couple’s relationship. Divorce among Christians is governed under the Indian Divorce Act 1869. Hindus, Buddhists, and Sikhs are governed by Hindu Marriage Act 1955. Muslims are governed by Dissolution of Muslim Marriages Act 1939. Parsi Marriage and Divorce Act 1936 govern Parsis. The Special Marriage Act 1956 governs civil and inter-community weddings. This Act does not apply to Jammu and Kashmir, but residents who are domiciled in Jammu and Kashmir will be eligible for the rules and provisions.

Types of Divorce Petitions

A Christian couple can divorce by mutual consent (no fault divorce or mutual divorcing), or one spouse may file for divorce without permission (fault divorce). This is according to the Indian divorce act.

Divorce with Mutual Consent

The courts will accept a divorce agreement between the couple. The Indian Divorce Act 1869 requires the couple to be separated for at least two years. The couple need only prove that they have not been living together during this time.

  • Separate the couples for at least one year
  • They should be able show that they are not able live together
  • All matters relating to custody, maintenance, and property rights of children must be mutually agreed upon

Alimony and Maintenance Issues

The couples must agree on three things. The first is maintenance and alimony. As per the divorce law, there is no maximum or minimum amount of support.

Custody of the Child

The custody of the child is the second thing to consider. Depending on the agreement between the spouses, child custody can be shared or joint.

Property Rights

The third is property. The third is property. Everything must be divided when it comes to bank accounts.

The duration of the divorce

The length of a divorce by mutual consent can vary from six to 18 month depending on the Court’sCourt’s decision.

Dissolution of Marriage (Divorce Without Mutual Consent).

The Indian Diverse Act allows either spouse to file a petition for the dissolution of marriage. Below are the conditions under which they can file the petition.

Petition by Husband

A husband can file a petition to the High Court or District Court requesting that the marriage be dissolution on grounds that his wife is guilty of adultery after the solemnization. According to the Christian Marriage Act, this act allows such a marriage to be solemnized.

Petition by the Wife

Any wife can file a petition for dissolution of marriage to the High Court or District Court. Any of the following circumstances can be used by the wife to file a petition for dissolution of marriage:

  • If her husband has given up his Christian faith to become a member of another religion
  • If the husband was in a marriage arrangement with another woman
  • If her husband is guilty of incestuous or sexual adultery after the solemnization
  • Bigamy and adultery in cases of
  • If you are married to another woman and have committed adultery
  • For rape, sodomy, or bestiality
  • A mensa est toro is a decree that allows a woman to divorce her spouse if she has committed adultery and shown such cruelty without affair.
  • Adultery with desertion and adultery for more than two years unless there is a reasonable excuse

Petition Contents

Each such petition must clearly state, as much as possible, the facts upon which the claim for a dissolved marriage is based.

Petition dismissed

For any of these cases, the CourtCourt will reject the petition.

  • The case will be dismissed if the CourtCourt does not find sufficient evidence or the petitioner is not proven guilty.
  • If the CourtCourt does not believe that the alleged adultery was committed, they will find that the petitioner, during the marriage, has been either an accessory to or conspiring in the said form or wedding or has condoned the adultery.
  • The CourtCourt will reject a petition being prosecuted in collaboration or with any of the above cases.

The petitioner may present a similar petition to High Court if the District Court rejects a petition filed under this act.

Decree to Dissolve the Marriage

If the CourtCourt is satisfied and the petitioner’s case has not been proven, the CourtCourt will issue a decree declaring the marriage to be annulled. This act states that the Court is not bound to give such orders in the following cases.

  • If the CourtCourt finds that the petitioner was guilty of adultery
  • If the petitioner is guilty of an unreasonable delay in presenting and prosecuting such petitions,
  • If the victim of cruelty is not a party to the marriage,
  • If the victim has deserted or willfully parted with the other party before the adultery complained and without any reasonable excuse,
  • If the willful misconduct or neglect towards the other party has led to adultery

Confirmation of the decree for dissolution

The High Court will confirm every decree of dissolution of marriage made by a District Judge.

High Court Verification

The High Court will verify the cases to confirm a decree dissolving the marriage. A court with three judges will rule. If there are two judges, the senior judge will decide. The High Court can order further inquiry or additional evidence if it requires.

The District Judge will send the inquiry results and additional evidence to the High Court. The High Court will then issue an order validating the decree for the dissolution of marriage.

Petition for Decree of Nullity

A petition can be filed by either the husband or wife to request that the marriage is declared null and void at the High Court or District Court. Any of the following will result in a Decree of Nullity:

  • The respondent was necessary when the marriage took place and when the institution of the suit was made.
  • The prohibited levels of consanguinity and affinity are not allowed for the couple.
  • If either of the parties was insane or a lunatic at the time of marriage
  • If either spouse was alive at the time of solemnization, the marriage was valid with the ex-husband or wife.

This section does not affect the High Court’s jurisdiction to issue decrees of nullity for marriage because either party consented by force or fraud.

Confirmation of Decree of Nullity

The High Court will confirm every decree of nullity of marriage made by the District Judge.

Juridical Separation

Juridical separation is when the husband and wife are legally separated. The CourtCourt can do this upon a petition filed by the husband or both. The marital relationship between husband and wife continues to exist in judicial separation. Neither spouse can be remarried.

A decree of judicial separation can be obtained by either the husband or the wife on the grounds of adultery, cruelty, or desertion for at least two years. This decree will give effect to divorce under the Indian Divorce Act.

Application for Juridical Separation

A petition for juridical seperation can be filed on grounds of adultery, cruelty, or desertion for two years or longer.

The husband or wife may apply for judicial separation on any of the above grounds by petitioning the District Court of the High Court. The Court will then grant the petition if it is satisfied that it was truthful.

Separated Wife

Suppose a judicial divorce is made under the Indian Divorce Act. In that case, the spouse will, while so separated, be treated as an unmarried lady for contract and wrongs, injuries, and suing or being sued in civil proceedings. Her husband will not be held liable for any warranty, act, or cost she incurs during the separation.

  • The Indian Divorce Act stipulates that the Juridical Separation of a Wife under the Indian Divorce Act will be treated as if the wife is unmarried.
  • In all cases where she acquires property of any description, the separated wife will be treated as unmarried.
  • She can sell property owned by a divorced wife in the same way as an unmarried woman.


Two people must support one another when they are married. The Code of Criminal Procedure 1973 provides that any person financially dependent on the marriage has the right to maintenance. This includes spouses, dependent children, and even indigent parents.

Calculating the amount of alimony

Either spouse can file an alimony claim, but in most cases, it is the wife. This depends on the husband’s ability to make ends meet. The courts will consider the earning potential of both spouses, his ability to generate his fortune (the property is handed to the wife), and his liabilities when deciding whether alimony should be paid.

Notice: Sometimes, the CourtCourt may order the husband to pay the wife monthly or weekly for her maintenance and support.

Factors that affect the amount of alimony

The amount of alimony depends on the length of the marriage after a contested divorce. A spouse can get maintenance for life if they have been married for a minimum of 10 years. These are some other important considerations:

  • Age of the person entitled to the alimony
  • The person entitled to alimony must be in an excellent economic position or have a high earning potential.
  • A spouse in poor health, a spouse who is about to be awarded alimony, or someone else may decide to pay them alimony. Their declining health may allow them to claim greater maintenance.
  • If the child is under 18 years of age, the spouse with custody would be entitled either to less alimony or a higher amount.

Property Settlements

The Indian Divorce Act states that a married person can occupy the property regardless of whether a divorce petition was filed. If the spouse is caring for children, the case will be stronger. However, one spouse may receive the property in a divorce settlement. Each spouse has the right to keep the property until the Court issues a decree.

Custody of children

The courts generally agree with the parents’ decision in a mutual consent divorce. However, the courts will have to ensure that the child’s best interests are considered. The courts will look at the parent’s ability to be a parent to the child in a contested divorce. As stated above, non-working parents are often granted custody, while fathers are expected to provide financial support.

Documents required to file a divorce

For filing a divorce petition in India, according to the Indian Divorce Act 1869, you must provide these documents:

  • Attestation of husband
  • Send proof of your wife.
  • Marriage certificate
  • Four passport-sized photographs of the marriage
  • You can provide evidence to prove that spouses have been living apart for more than one year.
  • The evidence of failed reconciliation attempts
  • Statement for the past two to three years of income tax
  • Information about the profession and current remuneration
  • Information about family background
  • Information about the property and other assets of the petitioner

Procedure for Filing a Divorce

Indian law generally regulates the procedure for filing divorce papers. It is covered by the Code of Civil Procedure (1908). A petition is filed to seek a divorce. Affidavits follow this by both spouses in the district court.

These details must be included in the petition.

  • Name of the parties
  • Status and domicile
  • Date and location of the marriage
  • The principal permanent location where cohabitation is possible
  • The last place where the parties lived together
  • Names of children born to the marriage (if any), along with their birth dates
  • Divorce or separation: The reason
  • Details and facts relating to the relief sought by the petitioner
  • The collaboration of the parties does not fool the CourtCourt.
  • After six months, the averments are confirmed by the couple.
  • If both spouses have been heard, and the judge is satisfied that there are sufficient grounds to file the recruitment and meet the divorce requirements, the couple can grant a mutual divorce decree.
  • When issuing a divorce decree, custody of the child, alimony to the wife, and litigation expenses will all be considered.

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