Theories of Divorce under Hindu Law | Civil Law for Judiciary Exams PDF Download

Guilt/Fault Theory of Divorce

• According to this theory, marriage dissolution is permitted if one spouse commits a matrimonial offense.
• For divorce, there must be an innocent and guilty party, with the innocent party having the right to seek divorce.
• The Hindu Marriage Act of 1955 provides nine grounds for divorce based on this theory, including Adultery, Cruelty, Desertion, and others.

Adultery

• Defined as consensual extramarital affairs, even a single act of adultery can be grounds for divorce under the law.
• Proof of adultery can be established through circumstantial evidence or contracting venereal disease.

Cruelty

• Includes physical and mental cruelty, such as false accusations, demand for dowry, and incompatibility of temperament.
• Acts of cruelty can adversely affect the mental health of the spouse.

Desertion

• Defined as the abandonment of responsibilities without rational cause or consent of the other, with specific conditions required for it to be considered a ground for divorce.
• Desertion must last for a de jure period of two years before a divorce petition can be filed.

Insanity or Mental Disorder

• Ground for divorce when a person suffers from incurable unsoundness of mind affecting the marital relationship.

Conversion

• Ground for divorce if a party converts to another religion from Hinduism.

Venereal Communicable Disease

• Ground for divorce if the spouse is suffering from a communicable venereal disease.

Leprosy

• Previously a ground for divorce, now being phased out as a legal justification for dissolution.

Renunciation

• Entering a holy order leading to divorce as per Hindu law.

Presumption of Death

• A person presumed dead if unheard of for seven years, providing a legal basis for divorce.
• This presumption helps cases where proving the fact of death is challenging.

Wife's Grounds for Divorce

• Pre-Act Polygamous Marriage: If the husband already had another wife before the Hindu Marriage Act of 1955 came into force, and this wife is still alive at the time of marrying the petitioner.
• Rape, Sodomy, or Bestiality: If the husband has been found guilty of committing rape, bestiality, or sodomy after the marriage ceremony.
• Discontinuance of Cohabitation after an Order of Maintenance: This ground for divorce arises when the wife has received a decree under the Hindu Adoption & Maintenance Act of 1956 and an order of maintenance under Section 125 of the Criminal Procedure Code. If the couple has not resumed living together for a year or more after this, the wife can seek divorce.
• Repudiation of Marriage: A wife can seek divorce on this ground if she has either explicitly or implicitly rejected the marriage. This is applicable if the marriage happened before she turned fifteen but after she turned eighteen.

These are the key grounds based on the guilt/fault theory of divorce under Section 13(2) of the Hindu Marriage Act, 1955, which allow a wife to seek divorce from her husband.

Mutual Consent Theory of Divorce

• Overview:
  • Under the Indian law, the Mutual Consent Theory of Divorce is enshrined in Section 13(B) of the Hindu Marriage Act.
• Comparison with Fault or Guilt Theory:
  • Unlike the Fault or Guilt Theory, which requires one spouse to be at fault, the Mutual Consent Theory allows for divorce if both parties agree to it.
  • It acknowledges that an unhappy marriage can lead to misconduct and that both spouses should have the option to separate.
• Procedure for Divorce:
  • If both spouses agree, they can jointly file a petition in court for divorce.
• Criticism and Benefits:
  • Critics argue that the Mutual Consent Theory can make divorce challenging as it necessitates agreement from both parties.
  • However, it is seen as a positive step towards preventing unhappy marriages and upholding the freedom of marriage by acknowledging the freedom to divorce.

Irretrievable Breakdown Theory of Divorce

• Introduction to Irretrievable Breakdown Theory: The concept of irretrievable breakdown of marriage is a relatively recent addition to the grounds of divorce under Hindu Law, introduced in 1976.
• Grounds for Filing for Divorce: Either party can file for divorce without proving specific fault, emphasizing that the marriage is irretrievably broken and reconciliation is impossible.
• Rationale Behind the Theory: In cases of acrimony or intolerability, it may be better for parties to end the marriage for their well-being and to seek happiness elsewhere.
• Legal Presumption of Breakdown: If spouses have lived separately for an extended period without reconciliation, the law presumes the relationship as unworkable and dead.
• Judicial Perspective and Landmark Cases: The case of Naveen Kohli v. Neelu Kohli highlighted the irretrievable breakdown of the marriage bond due to serious allegations of misconduct.
• Legislative Considerations: The Law Commission of India's 71st Report discussed the theory, questioning its conditions and applicability under the Hindu Marriage Act.
• Current Status: Currently, only the Supreme Court of India has the authority to grant divorce based on the theory of irretrievable breakdown of matrimonial relationships.

Conclusion

• Fault or Guilt Theory: Requires one spouse to be proven guilty of a matrimonial offense for marriage dissolution. Example: If a spouse is found to have committed adultery or cruelty, the other spouse can seek divorce.
• Mutual Consent Theory: Allows both parties to mutually agree to end the marriage. Example: If both spouses agree that their marriage is irreparable, they can file for divorce jointly.
• Irretrievable Breakdown Theory: Not currently a standalone ground for divorce under the Hindu Marriage Act. Recognized by the Supreme Court as a valid reason for marriage dissolution. Example: If a marriage is beyond repair and there is no possibility of reconciliation, this theory may apply.