The Act in Section 10 lays down eleven grounds for seeking divorce. The same areas under:
(i) Adultery of the Respondent
(ii) Change of religion.
(iii) Incurable unsound mind for a continuous period of not less than two years.
(iv) Virulent and incurable form of Leprosy for a period of not less than two years.
(v) Venereal Diseases (VD) in a communicable form for a period of not less than two years.
(vi) Whereabouts not known for a period of seven years or more.
(vii) Willful refusal to consummate the marriage.
(viii) Failure to comply with the decree of restitution of conjugal right for a period two years or upwards.
(ix) Desertion for a period of at least two years.
(x) Cruelty of such a nature to cause a reasonable apprehension of harm or injury if Petitioner lived together.
(xi) Husband is guilty of rape, sodomy or bestiality.
Grounds of Divorce given in Ground ii – Unsound Mind
Ground vii – willfully refusing to consummate the marriage
Ground viii – failed to comply with decree of restitution of conjugal right
Ground (ix) – Desertion – Sections 27, 28, 29, 30, 31 and 36
Ground (x) – Cruelty.
Are discussed in Parsi Divorce Act of this Book and hence, not discussed here.
Adultery, rape, sodomy and beshality
The Act under Section 10(1)0) lays down that the validly solemnized marriage can be dissolved (read divorced) on the ground of adultery. Needless to record that either spouse can be guilty of adultery or hence, if husband or wife has committed adultery, marriage can be dissolved under this provision whereas Section 10 (2) lays down that a wife may present a petition for dissolution of marriage (read as divorce) on the ground that the husband is guilty of rape, sodomy or bestiality.
The term ‘adultery is not defined in the Act, however, it does not mean that the definition given in Section 479 of the Indian Penal Code can be imported herein.  Adultery, for the purposes of this Section would mean sexual intercourse between one spouse and a person of opposite sex (not his or her spouse) during the subsistence of the marriage. In case of adultery, the two indulge into sexual intercourse with the consent of each other whereas in the case of rape, sexual act is forced upon the woman, against her opposition.
(i) Adultery cannot be proved by direct evidence. It is, however, necessary that evidence must be such as to lead the guarded discretion of a reasonable and just man to reach the conclusion of adultery.
(ii) Adultery is a matrimonial offence when there is consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage.
In case of rape also, the act of sex is same but while doing the said heinous act, force is used. Therefore, while the rape is a forceful act, the adultery is by mutual consent and without opposition of the other partner. In fact, in rape, the other person is not a willing partner for the sex. The requisites of rape can be taken from Section 375 of the Indian Penal Code. Section 375 of IPC states that sexual intercourse with a woman (a) against her will or (b) without her consent or (c) Consent is under misunderstanding that the man is her husband or (d) Consent is obtained under fear of death or hurt or (e) Consent is given when she is under sixteen years of age amounts to rape. After judicial separation, the sexual intercourse by husband also amounts to rape. However, if only the suit is pending, it would not amount to rape.
The very first ground enumerated in Section 10(1) is adultery. The ground of adultery for dissolution of marriage is available equally to man and woman. However, the express language of sub section (2) of Section 10 makes it abundantly clear that (only) the wife can seek dissolution of marriage on the grounds of (i) rape, (ii) sodomy and (iii) bestiality. But the nature of offences (rape, sodomy and bestiality for divorce) is not made available to men for seeking the divorce.
Section 11 requires that if husband or wife files the Petition for divorce on the ground of adultery, it is mandatory to implead the adulterer or adulteress as correspondent in the divorce petition. However, if the Petitioner intends to take exception from the general rule of imploding adulterer/adulteress as correspondent, he/she has to obtain the Order of the Court.
Although the Court is vested with powers to excuse the Petitioner for not imploding the adulterer/adulteress as correspondent, the Grounds enumerated in Section 11 of the Act circumscribe the powers of the Court. The provisions of Section 11 were amended by Amendment Act of 51 of 2001 inasmuch as the word ‘adulteress’ is included in it. Thus now the Law confers an equal right upon man and woman in the matter of divorce and the gender bias occurring in the Act is removed.
The following are the grounds enumerated in Section 11 for excusing the Petitioner from imploding the adulterer/adulteress as correspondent in the Divorce Petition:
(a) Wife is the Respondent and she leads the life of a prostitute.
(b) Husband is the Respondent, he leads the immoral life.
(c) The Petitioner does not know of the person with whom the Respondent commits the adultery.
(d) The Petitioner had made all efforts to find out the name of adulterer/adulteress but the name of adulterer/adulteress remained unknown.
(e) The alleged adulterer/adulteress is dead.
As discussed in detail earlier, the ground of adultery for divorce presupposes that the marriage is valid and does not suffer from any invalidity or that it is not a valid marriage.
Apart from the above substantive law, it is worthwhile to note the procedural law also. For example, Section 12 lays down that there should be no collusion between the Petitioner and the Respondent in seeking the remedy available under the Act. Section 13 confers a power upon the Court to dismiss the Petition on the ground of collusion, if it finds that the parties have come before the Court in collusion to seek the remedy from it.
Similarly, Section 14 too invests powers to grant the Decree of Dissolution only and only after the Court is satisfied that (i) the Respondent has indeed committed the adultery, (i) the Petitioner has not .condoned the act of adultery of the Respondent in the past. It may however, be noted that while Section 13 relates to the adultery of the Respondent, the Proviso to Section 14 relates to the adultery of Petitioner. Section 14 lays down that (leave apart the Respondent) – but if the Court finds that (not the Respondent but) the Petitioner was guilty of adultery during the subsistence of marriage, and then the Court is not bound to dissolve the marriage.
In other words, if Respondent is guilty of adultery, the marriage is dissolved but if the Petitioner is guilty of adultery, the reverse result ensues inasmuch as the marriage is not dissolved. The Proviso to Section 14 must be read with Section 15. Section 15, in effect and in substance envisages a possibility in which case, a guilty party might approach the Court for seeking Divorce on the ground of adultery, in order to preempt (prevent) the other spouse. Section 15 lays down that it is not necessary for the real aggrieved party to file another divorce petition on the ground of adultery but he/she can seek the same relief in the pending petition. Section 15 carves out an exception in respect of evidence and lays down that the respondent then is competent to give evidence relating to such adultery.
(iv)Sodomy & Bestiality
The ‘Sodomy’ is the carnal intercourse by man with man or in the same unnatural manner with a woman whereas; ‘Bestiality’ is the unnatural connection by a man with beast or animal. The Act confers a special ground of rape, sodomy and/or bestiality for divorce on the Christian woman. However, these grounds for divorce are not available to man. This will be clear from the express language used in subsection (1)(i) and (2) of Section 10 of the Act. While subsection (1) of Section 10, inter alia lays down either (i) husband or (ii) wife can seek dissolution of marriage on the enumerated grounds, it is not so in the case of divorce on the grounds of rape, sodomy and bestiality. The reason is clear that such offences can be committed only by men and by men only.
Change of religion
Section 10 of the Act, prior to Amendment 51 of 2001, inter-aliq, laid down that any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that since the solemnization of marriage, her husband has exchanged his profession of Christianity for the profession of some other religion.
The express language of Section 10 (prior to Amendment) makes it abundantly clear that only the wife could seek divorce on the ground of conversion and not the husband. The apex Court rejected a prayer to remove the discrimination between men and women in Section 10 of the Indian Divorce Act (now the Divorce Act). The court based its approach on the “limits” of the courts’ jurisdiction. It held that when a legislative provision enumerates the grounds of divorce, those grounds limits the Courts’ jurisdiction and the Courts cannot rewrite the law so as to add grounds of divorce not permissible under the section. The Legislatures have finally come down firmly and removed the gender bias by enshrining the ‘change in religion’ as the ground of Divorce in Ground (ii) of Section 10 of the Act.
It would be worthwhile to note that in India, the Personal Law based on religion still continues to apply and there is no matrimonial law of general application despite the fact that Article 44 of the Constitution of India provides for uniform civil code throughout the territory of India. The apex Court was called upon to hold that the rules of Personal Law contrary to uniform civil code were ultra virus. However, the apex Court declined to take such a view. It held that it is for the Legislatures to frame the uniform civil code and it is not for the Courts to enact any law for the State. The apex, therefore, held that the Petition did not deserve disposal on merit and as such, dismissed the Petition in liming. The Writ of Mandamus was sought against the Union of India for introduction of a uniform civil code. The apex Court” took the view that it was a matter for the legislatures and the court cannot legislate in these matters. The apex Court in another case held that framing of the uniform civil code in one stroke may cause harm to the unity of the nation. The rulings of the apex Court bring us back to square one. In the circumstances, in India, Personal Law based on religion still continues to apply. Obviously, therefore, the Divorce Act too gives due importance to change of religion and confers a ground for divorce in case of conversion.
It may be noted that if the change in religion is coupled with contracting another marriage, it becomes an entirely different issue. In such cases, the aggrieved spouse can (i) seek divorce on the ground of change in religion and (ii) can prosecute the guilty spouse for bigamy. It must, therefore, be clearly borne in mind that change in religion by itself does not dissolve the marriage; it only affords a ground for divorce. Thus, if one spouse changes the religion and marries again under another personal law, he/she can be dealt with in accordance with the provision of Section 494 of Indian Penal Code. The apex Court held that a Hindu husband after conversion to Islam, if marries without dissolving his first marriage, would be guilty of offence under Section 494 of IPC. In the later decision, the apex Court reasserted the same view.
Leprosy & venereal diseases
Leprosy: The Leprosy is a Ground (v) in Section 10 (1) of the Act for seeking divorce. The Leprosy, clinically speaking, is a chronic, infectious diseases caused by Mycobacterium Leprae. Prolonged and close contact is ideal for its transmission. However, even a short and intimate contact is also reported to be sufficient for transmission of the disease. However, ordinarily speaking, it is simply a physical disorder requiring medical attention.
It is now a curable disease if detected early and treated well. Therefore, very wisely, the Act in Section 10(1)(iv) lays down that marriage can be dissolved if either party is suffering from virulent and incurable form of Leprosy. The apex Court has observed that Legislature has not taken leprosy lightly and has conferred a ground of divorce taking into consideration the consequences arising from leprosy and the pathetic condition in which the other spouse would be put into. The period of limitation prescribed under the Act for seeking divorce for leprosy is two years.
Venereal Diseases: The Sociologists say that judges should not adopt a strict legalistic view but should have the human approach, in fact, for that purpose; justice may be tempered with mercy. While it is correct to the core, it is also no denying that one spouse cannot be compelled to live with the other spouse suffering from an incurable and communicable form of venereal diseases, like the leprosy.
The Hindu Marriage Act and so also the Special Marriages Act do have the provision giving relief of seeking divorce on the ground of virulent form of communicable diseases. So far the Divorce Act is concerned; it also provides similar relief to Christians. In ground (iv) of Section 10 (1), the Act provides dissolution of marriage (divorce) if the other spouse is suffering from Venereal Diseases (VD) in a communicable form. The period of limitation prescribed is two years from the time immediately preceding the presentation of the petition in the court? The Court granted divorce on the ground that wife was suffering from venereal diseases even before marriage.
Whereabouts not known
Section 10(l)(vi) lays down that divorce can be granted if the other spouse has not been heard of as being alive by those persons who would naturally have heard of the respondent, if the respondent had been alive. It only means that divorce can be granted if the whereabouts are not known and the period of limitation prescribed is seven years or more.
The Special Marriage Act, 1989 in Section 27(1)(h) also provides for divorce on the ground of whereabouts not known. Such a ground for divorce is available to Muslim women too but the period of limitation prescribed is 4 years. The Muslim Act, however, does not state that ‘if husband would have been alive’, but states that ‘whereabouts are not known.’ The Muslim Act is more clear and specific. It requires that:
(i) The Plaintiff should provide the names and addresses of the persons who would have been the heirs of the husband under the Muslim Law if he had died on the date of filing the Plaint.
(ii) Notice of the Suit shall be served on such heirs of the husband.
(iii) Such heirs of the husband shall have the right to be heard in the suit.
(iv) Uncle and brother of the husband, if any shall be imploded as parties to the suit, even if they are not the heirs of the husband.
(i) Divorce a Mensa et torso – Judicial Separation
Without going into reasons why two parties of a ‘happy wedding’ are not able to live together in ‘sweet home’, the law has sanctioned judicial separation for them taking a realistic view that it is better to separate them when living together for them is impossible. It is well to remember that Church of Rome always refused to sanction a complete dissolution.
It only granted divorce from ‘bed and board’ or judicial separation or divorce a Mensa et thoro. In consonance with this rule of Christian Personal Law, the Act in Section 22 creates a bar for divorce at first instance whereas Section 23 invests powers in the District Court to grant the Decree of Judicial Separation. Requirements of Section 22 are as under:
(i) Neither husband nor wife can seek Decree of Divorce at first instance or Divortium an inculomatrimani.
(ii) Husband or wife can only seek Decree of divorce from bed and board or the Decree judicial separation.
(iii) Decree of judicial separation can be granted only on the grounds of (a) adultery, (b) cruelty (c) Desertion.
(iv) The period of limitation prescribed for Decree of judicial separation for adultery, cruelty and desertion is two years and upwards.
(v) Decree for judicial separation shall have the effect of a divorce a Mensa et torso or such other effect as mentioned in the Act.
Requirements of Section 23 are as under:
(i) Either husband or wife can make an application for judicial separation on the grounds of adultery, cruelty and desertion of two years and upwards.
(ii) The Application for judicial separation has to be made to the District Court.
(iii) The District Court should be satisfied with the truth of statements made in the petition for judicial separation.
(iv) The District Court should also be satisfied that there is no legal ground not to grant judicial separation.
(v) The District Court has the sole discretion to grant the judicial separation. The discretion vested in the Court to grant or refuse judicial separation, undoubtedly has to be exercised judiciously and not capriciously or by way of favoritism or partiality. The judicial discretion has to be based on justice, equity and good conscious.
(ii) Effect of judicial Separation
As a matter of fact, judicial separation does not dissolve the marriage. It only suspends the marital relationship for the time being. It is only a stepping stone (a) to dissolving the marriage or (b) for reuniting the couple – because the time has the healing touch. As such, Law has considered judicial separation better than the divorce – at first instance. Because, may be that wiser counsel may prevail upon the warring couples and they may agree to reunite.
No doubt, the Act has incorporated the lofty ideal of ‘healing time’ in Sections 22 and 23 and sanctioned judicial separation, but at the same time, the Act has also taken care of wife in Section 24 and 25 by granting her protection against her husband. The law envisages that husband, possibly, may take undue advantage of (existence of) his legal relationship of husband and wife and, therefore, (the Law) grants protection to the wife while the legal relationship of ‘husband and wife’ is suspended, pending the judicial separation.
The Act under Sections 24 and 25 allows the wife to have an “independent” “legal” “identity” – but for a limited purpose. As such, by reason of the provisions incorporated in Sections 24 and 25, wife can claim (i) to be the ‘Spinster’, (ii) exclusive ownership of property acquired after judicial separation, (iii) the independent right to enter into the “Contracts” and (iv) right of inheritance to her heirs. It must be clearly borne in mind that Section 24 refers to ‘Property’ and Section 25 refers to (a) ‘Contract’ and Civil Suits.
Requirements of Section 24 are as under:
(a) Wife/Husband must have finally obtained a Decree of judicial separation from the competent court of law.
(b) Only after having obtained the decree of judicial separation, wife will be treated as unmarried only for a limited purpose of determining the legal ownership of property after she acquires during the subsistence of judicial separation.
(c) The property, acquired by wife during the suspension of the legal relationship of ‘husband and wife’ may be movable or immovable or of any other description whatsoever.
(d) The property acquired by wife during the suspension of legal relationship of ‘husband and wife’ may have been acquired by sale purchase or lease or gift or ‘ownership in cooperative society or in any other manner whatsoever. But the acquisition of property for which, legal ownership is required to be determined, must be the property acquired during the existence of subsistence of judicial separation. It can also be said that wife should have acquired the property during the period from the date of passing the decree of judicial separation till the date of canceling, revoking or setting aside the Decree of judicial separation.
(e) During the subsistence or existence of the decree of judicial separation, if wife dies, the property so acquired by her will go to her heir in inheritance and husband will not be the heir to such inheritance.
Requirements of Section 25 are as under:
(i) Wife/Husband must have finally obtained a Decree of judicial separation from the competent court of law.
(ii) Only after having obtained the Decree of judicial separation, wife will be treated as ‘unmarried woman’. Only for a limited purposes of (a) entering into ‘Contracts’ (b) her suffering from any “wrongs” and “injuries” and (c) for ‘suing’ and ‘being sued’ in any “Civil Proceedings” during the subsistence of judicial separation.
(iii) Act is silent on Criminal Proceedings.
(iv) Husband shall be liable for payment of alimony granted to wife by the competent court of law but he shall not be liable or responsible during the suspension of the legal relationship of ‘husband and wife’:
(o) For the Contract, if entered into by wife
(b) For ‘Wrongs’ & ‘injuries’, if caused by wife to some third person
(c) For the Suits filed by wife or against wife, if any
(d) For the Civil Proceedings adopted by wife or against wife.
(v) In case where any ‘Power of Attorney’ is/are executed in which husband and wife, are vested with powers jointly and severally, wife can fulfill her obligations, jointly with her husband, arising under the said joint Power of Attorney.
(iii) Reversal of Decree of judicial Separation
Section 26 lays down a strict provision and warns the Petitioners not to take undue advantage of absence of the other side; otherwise the earlier position will be restored. In other words, if the decree of judicial separation, on the application of husband or wife is passed ex parte, the Court passing it is vested with powers to vacate the ex parte order and restore the earlier position. However, while vacating the ex parte order of judicial separation, the Court should be satisfied that:
(a) The Decree was obtained exported (in absence of the other side).
(b) There is ‘sufficient cause’ or ‘reasonable excuse’ to set aside the ex parte order.
It may be noted that the Act does not lie down as to what are the ‘reasonable excuses’ or the ‘sufficient causes’. However, the term ‘sufficient cause’ is a well settled judicial concept. For example, the service of Notice/Summons was improper, illness of Respondent, or Respondent was out of station, or such other reasons which are beyond the control of the Respondent, are but some of the reasons considered to be sufficient to restore the original position. It is too obvious that no party benefits from remaining absent and no prejudice will be caused if original position is restored.
As such, the Courts have been taking a lenient view in the matter of setting aside the ex parte order. However, Section 26 does not refer to setting aside of ex parte order what is referred to in Section 26 is the ‘Reversing of Decree of judicial separation’, as a result of which, the husband and wife cannot reap the benefits accruing there from. Therefore, the Courts may not be as lenient as in the case of ‘Setting aside of exported order’. But the strictness in exercising judicial discretion apart, the grounds for showing a ‘sufficient cause’ remain the same.
Notwithstanding the fact that the Decree of Judicial Separation is reversed, the parties (husband and wife) are given complete protection from the time of passing of the decree of judicial separation and until reversal of the Decree of Judicial Separation. In other words, the reversal of the decree of judicial separation shall not (a) prejudice or (b) affect the (i) rights and (ii) liabilities, in respect of (A) Debts or (B) Contracts or (C) Acts of wife incurred from the time of passing the Decree of Judicial Separation until it is reversed.