Christian Law of Divorce in India - Indian Divorce (Amendment) Act, 2001

Indian Divorce (Amendment) Act, 2001

Further, the Commission on Review of Administrative Laws which was set up by the Central Government on the 8th May,1998 has, inter alia, recommended repeal of various enactments including the Indian and Colonial Divorce Jurisdiction Act, 1926, the Indian and Colonial Divorce Jurisdiction Act, 1940 and the Indian Divorce Act, 1945 which were the British Statutes relating to Christian Personal Law that were in force at the time of making the recommendation. In order to give effect to the recommendations of the Law Commission of India in its 164th Report and the recommendations of the Commission on Review of Administrative Laws, at last, the Indian Divorce (Amendment) Act, 2001 has been enacted. Now, therefore, the intention of the Legislature in bringing out the Indian Divorce (Amendment) Act, 2001, is to be ascertained with the aid of this background of the law. However, it is made clear that the amendment has no retrospective operation.

There are certain noteworthy deletions from the Act. First and foremost is the deletion of the right of a husband to claim damages from the adulterer. This has been done on the basis of a fundamental change in the concept of the status of women. Formerly, women were considered as the property or chattel of men. Any trespass into that property was considered as an actionable claim. With deletions of sections 34 and 35 of the Act, the husband now cannot claim damages or cost from the adulterer of his wife. Consequently an added liability is thrust on the woman who happens to break into the matrimonial home of another. Previously, no woman was liable to be added as a party to the divorce proceedings as a co-respondent. Now, with the changes effected in section 11, the woman is also to be impleaded as a co-respondent.

Yet another change is the removal of discrimination against women in the matter of settlement of property. Prior to the amendment, the Courts were empowered to settle the property of the wife, if she is found to have committed adultery, for the benefit of her husband and children of the marriage. (See section 39 of the unamended Act). There was no corresponding provision to penalise a husband who is guilty of adultery and hence it could be considered discriminatory to women. This section is deleted, whereby both husband and wife are put on an even keel. In fact, what ought to have been done was that the property of the husband also should have been brought under the same disability. What is forgotten in the process is the welfare of the children. In the whole process, the rights of the children of broken marriages have not been properly protected. Some serious thought ought to have gone into this aspect. In almost all the cases of divorce or nullity, it is the children who bear the brunt, for no fault of their own.

The activists and the reformers have had no time to think about the hapless children of broken marriages. There ought to have been some provision made to see that reasonable provision is made by the parties for their children before a divorce is granted, and a provision should have been made to make it mandatory for the Courts to insist that such provision be made to its satisfaction, especially when the application is filed under mutual consent.

With the 2001 amendments, the procedural aspects under the Act of 1869 has been substantially altered to reduce the miseries of parties in a divorce proceeding. Now a Family Court can grant a decree of nullity of marriage or divorce at the first instance and the same would become final if no appeal is preferred within the period prescribed for the same. Confirmation by a Special Bench of the High Court as was required, has now been done away with. But the amendment has only prospective operation. In addition, with the enactment of the Marriage Laws (Amendment) Act, 2001, the provision for alimony has been made more beneficial to women. Formerly, there was an upper limit of one-fifth of the income of the husband as payable towards alimony. Now, this upper limit of one-fifth has been removed and the quantum of alimony is left to be decided by the Court in the circumstance of each case.