J. Venkatesan

It was enacted in 1869 to suit the convenience of the British, says Law Commission

NEW DELHI: The Law Commission has recommended that the Indian Divorce Act, 1869, relating to the divorce of persons professing faith in Christianity, be amended so that courts could entertain petitions for dissolution of marriage in which either of the parties is domiciled in India when a petition is presented.

In a report to be submitted to the government later this week, the Commission, headed by Justice A.R. Lakshmanan, said: “This Act was enacted in 1869 [and amended in 1926] to suit the convenience of the Britishers in India. Section 2, as it stands today, will enable the courts to entertain the proceedings for dissolution of marriage except where the parties to the marriage are domiciled in India when the petition is presented.”

The Commission took up this issue at the suggestion of the Madras High Court to the Centre, which forwarded a letter from M. Ravindran, Additional Solicitor-General, Chennai, with the copy of the judgment.

“Grave injustice”

The High Court had said that if the provision was construed to mean that a petition would be maintainable if, at the time of its presentation, either party was domiciled in India, the difficulty faced by the petitioner would not arise, and on the other hand the object could be achieved.

The report pointed out that as a result, the court would not be able to entertain such matters, resulting in grave injustice to either of the parties, and it would defeat the very purpose of the Act.

“Though we adopt and follow the English Acts, the law has to be changed, amended or deleted to suit the local circumstances and to avoid such difficulties and to render justice to the parties. The construction of any provision is the correct assessment of the socio-economic condition of a place like our country so as to fit the statute in the changing system.”

Modern positive approach

The Commission felt that it had been held in a number of cases that modern positive approach was to have a purposeful construction that would help to achieve the purpose of the Act.

The court should always adopt a construction of a statute that would ensure the benefit of society and eschew such construction, which might adversely affect society.”

Accordingly the Commission recommended amending Section 2 of the Act.