Christians can seek divorce
A person professing Christian religion can get a divorce under the Divorce Act, 1869.
The act is applicable if one of the parties to the marriage is a Christian and the marriage can be dissolved by passing a decree by the Family Court under the Act.
Grounds for Christian divorce under S 10
The grounds provided by the act for dissolution of a marriage under Section 10 of the Divorce Act are as follows:
- Where the spouse committed adultery.
- The respondent ceased to be Christian by conversion.
- Where the respondent is suffering from an incurable unsound mind for a continuous period of two years.
- Where the respondent is suffering from a virulent and incurable form of leprosy for a continuous period of two years.
- Where the respondent is suffering from venereal disease of a communicable form for a continuous period of two years.
- Where the respondent has not been heard alive for a period of seven years or more.
- Where the respondent has refused to wilfully consummate the marriage.
- Where decree of restitution of conjugal rights was passed, the respondent failed to comply with such decree.
- The respondent deserted the respondent for a period of two years or more.
- Where it is harmful for the petitioner to live with the spouse on account of cruelty committed against him/her.
The tenth item cruelty is the commonly used ground being used by a Christian spouse to get his/her marriage dissolved. The term cruelty has no specific legal definition and it can manifest in many forms and ways.
A wife can seek divorce in case the husband is guilty of rape, sodomy or bestiality.
Divorce by mutual consent u/s 10-A
The parties to the marriage can also file a petition together for seeking divorce by mutual consent under Section 10-A of the Divorce Act. Applications are filed on the ground that they have mutually agreed to divorce after living separately for a period of one year or more and have not been able to live together.
Kerala HC reduced 2 years to one
The High Court of Kerala (HC), in its Division Bench decision in Saumya Ann Thomas v. The Union of India & Ors. (2010), states that the stipulation of two years period in 10 A of the Divorce Act was found to be arbitrary and oppressive and it has been read down to one year, along the lines of those provided in Section 28(1) of the Special Marriage Act, Section 13B(1) of the Hindu Marriage Act and Section 32B(1) of the Parsi Marriage and Divorce Act.
Mutual consent divorce before the lapse of one year
And now the HC has gone further in Anup Disalva v Union of India on 9th December 2022 and made the Section 10-A of the Divorce Act further on a par with other laws that govern marriage and divorce such as the Hindu Marriage Act.
The HC notes that the Section 29 of the Special Marriage Act (SMA) and Section 14 of the Hindu Marriage Act, enabled the Courts to entertain the petition to be presented before one year had lapsed from the date of marriage. The court added that it is not constitutionally valid to deny permission to those covered by the Divorce Act 1869 to go to court before the lapse of one year.
Hence it is possible to file a consent divorce petition under Section 10-A of the Divorce Act before the completion of one year, in exceptional cases.
Waiving of six month’s cooling period u/s 10A
In Tomy Joseph v Smitha Tomy [2018 (4) KLT 770], the Kerala High Court held that the Family court can waive the six month’s cooling period , as laid down in Amardeep Singh v Harveen Kaur [AIR 2017 SC 4417] in a petition under Section 10 A (2) of the Divorce Act. A Constitutional Bench of the Supreme Court in Shilpa Sailesh v Varun Sreenivasan also upheld the dictum laid down in the Amardeep case.
The High Court arrived at this conclusion when it noticed that the Section 10 A of the Divorce Act is the verbatim reproduction of the Section 13 B of the Hindu Marriage Act, except that of the period of separate residence. Both the Sections are for mutual consent divorce and there should not be any discrimination on the ground of religion in extending the benefit to the Christians as well.
Waiving of six month’s period u/s 28 of the SMA
In Johny Sebastian v Jossy@Saramma K J [2023 (2) KHC 318 (DB)], the High Court of Kerala extended the benefit of waiving the six month’s cooling period in Amar Deep Sing case to those who seek divorce by mutual consent under Section 28 of the Special Marriage Act (SMA), as well.
How to File for Divorce Under Christian Law in India
The first step is to prepare an Original Petition in the format prescribed for the Family Court, by providing all the required information.
Next, make an affidavit (a statement on oath) before a notary public or a magistrate, stating that you have been living separately for at least one year and that you have no hope of reconciliation.
Attach copies of all relevant documents to your affidavit, such as rental agreements, bank statements, etc. You will also need to provide a copy of your marriage certificate.
Finally, submit the completed application form and supporting documents to the Family Court nearest your residence.
Keep in mind that you will need to appear in person before the court to give testimony.
