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Report No. 164

1.3. Some discriminatory, anachronistic provisions of the Act.-

Section 10, which specifies the grounds for dissolution of marriage reads as follows:

"10. When husband may petition for dissolution.-Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution.-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 thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;

or has been guilty of incestuous adultery,

or of bigamy with adultery,

or of marriage with another woman with adultery,

or of rape,

sodomy or bestiality,

or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro,

or of adultery coupled with desertion, without reasonable excuse, for two years or upwards."

1.4. It may be emphasised even at this stage that section 10 makes a clear and invidious discrimination against the woman. While a man seeking dissolution need prove only adultery on the part of his wife, a wife is required to prove some other marital offence in addition to adultery to be able to obtain dissolution.

1.4.1. In section 55 of the Indian Divorce Act, an appeal has been provided against a decree made by the High Court as if it were a decree made in exercise of its original civil jurisdiction which means that an appeal lies to a division bench against an order of the judge of a High Court granting a decree for dissolution of marriage under section 16.

1.4.2. The Act was made more than 128 years ago. In view of its antiquated and discriminatory provisions, it has become an anachronism today. The Law Commission was seized of this problem in the past and has been making repeated recommendations for a thorough review of the law and for enacting a new Act in its place.

Indian Divorce Act, 1869 Back

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