What are the requirements of filing divorce petition

The Act lays down that, for filing the Divorce Petition, the following requirements must be fulfilled.

A. Section 2 requires that either of the spouses professes the Christian religion. Further, in the ‘Proviso’, it is stated that the parties to the marriage should have been domiciled in India, at the time of filing the divorce petition. The Bombay High Court has held that if parties profess Christian religion and domiciled in India, the marriage can be dissolved even if the marriage was solemnized outside India.

The Delhi High Court took the view that the Act does not require that the marriage should have been solemnized in any particular form; it is sufficient that one of the parties was a Christian when the Petition was filed. The Madras High Court took the view that if marriage is solemnized in ‘Seethirutha’ form, it being not a valid marriage, no relief can be claimed under Act.

B. Section 10 requires that the Divorce Petition can be filed either by the husband or wife.

C. The Petition has to be filed in the District Court (Section 10). It is, however, made clear that whether the marriage was solemnized before or after the Amendment of 2001, the Divorce Petition can be filed in the District Court. It may be noted here that prior to Amendment of 2001, the jurisdiction was ordinarily vested with the High Court. Further, it may be noted that Petition will be filed in the Family Courts if those are established under the Family Court Act as powers of District Court are transferred to such Family Courts.

D. As far as it is reasonable (Section 12), the Court should satisfy itself that:

I. Factually there is no (a) Collaboration (b) Connivance and (c) condonation of Respondent’s past conduct under consideration.

II. Actually the parties are not accessory (collaborator) in any manner and/or had no connivance in solemnizing the marriage or had no connivance in committing adultery or that the parties should not have colluded, connived at condoning the adultery AND

III. The counter allegations (charges) of the Respondent against the Petitioner are not true so that the Respondent is not called upon to file another Petition in respect of his/her case (defence).

E. Section 13 requires that the conditions of Section 12 must be fulfilled. However, if those conditions are infringed, violated or breached, the Court is vested with powers to dismiss the Divorce Petition in limine (on that ground only).

Prior to Amendment of 2001, the Petitioner had an option to file the Divorce Petition in High Court. But if Petition is Filed in the District Court, the aggrieved party could approach the High Court and in that eventuality, it was laid down that the High Court should consider (i) Evidence (ii) should satisfy itself that the Petitioner’s case is not proved in evidence (iv) the alleged adultery in fact was committed and that (iv) there was collusion between the parties in prosecuting or presenting the Petition.

Case laws

1. Desertion means withholding from matrimonial obligations and is not withdrawal from a place. There can be desertion without previous cohabitation by parties. A party cannot be permitted to take advantage of his/her own wrong. No party can seek divorce on the ground of desertion.

2. Cruelty need not be such that it can cause reasonable apprehension. The act committed with intention to cause suffering to other party would amount to Cruelty. The social status of parties is a relevant consideration. Cruelty cannot be judged from a solitary incident.

3. Mental Cruelty is a state of mind and feeling. It is, therefore, a matter of inference to be drawn from facts and circumstances taken cumulatively. The inference arises from attitude and conduct of the party. In this case, wife had matrimonial home a few months after the marriage. Despite several attempts, there was no conciliation between them. It can reasonably be inferred that the marriage has broken down irretrievably.

4. What constitutes cruelty depends upon circumstances of each particular case, e.g., the physical and mental condition, character and social status of the parties.

5. On facts, the Court granted Decree for Divorce by mutual consent waving the statutory period for six months. There is no specific provision to treat Order under Section 10 A as absolute bar in view of Section 16. However, the Court recorded that the Order passed be treated only as a Decree Nisi

6. Simply because matrimonial advertisement was given in different address, it cannot be said to be a fraud.

7. Mutual consent is not the ground for divorce under the British Matrimonial Causes Act, 1973. As such, it cannot be read in the Indian Divorce Act merely because of Section 7.

8. Section 11 is mandatory. Even in cases of exceptions, it is necessary to obtain leave of the Court.

9. The standard of proof required under Section 14 is that the judge should be satisfied beyond reasonable doubt as to the commission of matrimonial offence. Thus, if there is no qualitative evidence on record, mere fact that the respondent had not chosen to contest the proceedings would in no way permit lowering down of the standard of proof required under Section 14 of the Act.

Matrimonial Home

In cases where ‘marriage’ is treated as “Sacrament”, it is the sacred duty of the husband to keep his wife with him, protect her and maintain her. In cases where the marriage is treated as ‘Contract’ – or a ‘Sacrosanct Contract’, a similar duty is cast upon the husband to keep his wife with him, protect her and maintain her. As such, in any event, it is the duty of the husband to keep his wife at his place of residence, protect her and maintain her, as long she is alive.

It is, perhaps and in all probabilities, for this reasons that in all religions and in all legal systems, the wife has to come to live with her husband. No doubt, in modern times, often wife is in employment and for that reason, she has to live, not with her husband but away from him. Nevertheless, it can only be said that husband’s place of residence is (deemed to have been) extended to the actual place of residence of wife. Thus, the wife’s ‘notional’ or ‘legal’ place of residence in such cases continues to be the place of her husband. Therefore, the ‘matrimonial home’ continues to be the place of residence of husband. Thus, the ‘sweet home’ where the husband and wife live together is the ‘Matrimonial Home.’