Christian Law of Divorce in India - The Divorce Act of 1869

The Divorce Act of 1869

The Indian Divorce Act was enacted in 1869 to "amend" the then existing law on divorce and matrimonial causes of Christians, and to confer jurisdiction upon the High Courts and District Courts in matters matrimonial. It does not appear to be a comprehensive legislation on the subject. This is evident from the Preamble to the Indian Divorce Act, 1869 which states: "Whereas it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain courts jurisdiction in matters matrimonial…". It is pertinent to note that it was not to 'make' or 'consolidate' the law, but to 'amend' the law that the Act was passed. This means that there was some law then existing and the Divorce Act was to be part of that law. The concept of amendment in law postulates an antecedent law in force and in some cases the bulk of that antecedent law is kept alive and only the dead wood removed. Wherever there is no law, the legislature would specifically note the position. On the contrary wherever there is a law and when the legislature wants to consolidate and amend the law, such intention is expressed in explicit terms. For example the Preamble to the Indian Christian Marriage Act may be read in contra distinction with that of the Indian Divorce Act, 1869. Preamble of the former reads: "An Act to consolidate and amend the law relating to the solemnisation in India of the marriages of persons professing the Christian religion". Now, therefore, it becomes evident that the Indian Divorce Act does not consolidate the law of divorce, but it only amends the law and aims only at a limited intervention in the law by conferring jurisdiction on certain Courts to exercise the same in these matters. And in the exercise of that jurisdiction the Court was to act on the principles of English Divorce Courts as was provided under Section 7 of the Act.

At this juncture, it is of interest to note that even in England, the substantive law on matrimonial causes was not altogether abrogated by the Matrimonial Causes Act, 1857. Lord Merriman opined that the principles that the Courts in England must follow in nullity cases were those of the old Ecclesiastical Courts and that neither the statute nor the common law of England had interfered with the pre-Reformation canon law. Thus the Matrimonial Causes Act, 1857 was not a comprehensive one with reference to England either. The Matrimonial Causes Act of 1857 is the basic structure upon which the Indian Divorce Act of 1869 has been built. Therefore, for a proper appreciation and application of the provisions of the Indian Divorce Act, 1869 in India, it requires an examination of the law in England and its development through the centuries.