There are various theories of divorce under Hindu Law according to which a married couple can give divorce, these theories are the reasoning given behind the separation or dissolution of marriages.
Guilt or fault theory, mutual consent theory and irretrievable breakdown of marriage are mainly three theories for divorce under Hindu law.
Guilt/Fault Theory of Divorce
In accordance with the guilt theory of divorce, the dissolution of marriage is only permissible if one spouse has committed a matrimonial offence. This theory suggests that there must be an innocent and guilty party and only the innocent party can seek the remedy of divorce.
Furthermore, there must be a personal injury to the marital relations of the individuals. However, as a consequence of the guilt of one party, the other party must be completely blameless. This poses a major drawback to this concept because if both parties are at fault, there is no remedy available for the dissolution of the marriage.
The Hindu Marriage Act of 1955, as amended by the Marriage Laws (Amendment) Act of 1976, includes nine grounds based on the guilt theory of divorce:
- Insanity or mental disorder
- Venereal communicable disease
- Presumption of death.
These grounds serve as legal justifications for a divorce if a party is found to be guilty of committing one of these offences. However, it is important to note that the innocent party must prove the guilt of the other party in court in order for a divorce to be granted based on the guilt theory. Additionally, if both parties are found to be at fault, neither party can seek a remedy for the dissolution of marriage under this theory.
Adultery is considered a matrimonial crime under the guilt theory. Even under the Shastric Hindu law, adultery was considered a sin. The offence of adultery is defined as consensual sexual intercourse or voluntary extramarital affairs between a married person and another married or unmarried person, not being the other’s spouse.
The Hindu Marriage Act, as amended in 1976, allows even a single act of adultery as sufficient for the ground of divorce. It is necessary to prove that at the time of the act of adultery, the marriage was lawful. Evidence for adultery can be established by circumstantial evidence or by contracting venereal disease. In Swapna Ghose v. Sadanand Ghose, the court found sufficient evidence of adultery when the wife found her husband and the adulteress lying together on the bed at night.
The concept of cruelty includes both physical and mental cruelty. Acts of cruelty are behavioural exemplifications specified by different factors in the life of spouses. Mental cruelty is a lack of conjugal kindness of marital relations, which adversely affects the mental health of the spouse.
Some examples of cruelty are false accusations of adultery, demand for dowry, impotency, drunkenness, threat to commit suicide, incompatibility of temperament, refusal to have marital intercourse or children, etc. In Pravin Mehta v. Indrajeet Mehta, the court has defined the cause of mental cruelty as the ‘state of mind.’
Desertion means the repudiation by one spouse of all the responsibilities of marriage, the abandonment of one spouse by the other without any rational cause and without the consent of the other.
The following five conditions must be co-existing to constitute desertion as a ground for divorce: animus deserdendi, the factum of separation, desertion without the consent of the other party, desertion without any reasonable cause and de jure period of two years must have run out before filing a petition.
In Bipinchandra v. Prabhavati, the court states that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if he subsequently shows an intention of returning but is prevented from doing so by the petitioner.
Insanity or Mental Disorder
Insanity or mental disorder is a ground of divorce where the person has been suffering from incurable unsoundness of mind and the suffering should be continuous and the mental disorder of the respondent is of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent.
Conversion is a ground of divorce where the other party has ceased to be Hindu by conversion to any other religion.
Venereal Communicable Disease
A venereal communicable disease is a ground for dissolution of marriage under the fault theory where the respondent is suffering from venereal disease, which is communicable in nature.
Leprosy is granted as a remedy for divorce and the obligation of proving this is on the petitioner. However, The Personal Laws (Amendment) Bill, 2018, directs to remove leprosy as a ground for divorce in five personal laws, including the Hindu Marriage Act.
Renunciation of the world by entering into a holy order (sanyasa) is a ground for divorce only under Hindu law. Modern codified Hindu law lays down the remedy for divorce that a spouse may seek if the respondent has renounced.
Presumption of Death
Under the presumption of death, a person is presumed to be dead if the spouse has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent is not known for the 7 years is on the petitioner under all matrimonial laws.
This is a presumption of universal acceptance that aids proof and supports cases where it would be extremely difficult, if not impossible, to prove that fact.
Wife’s Ground for Divorce
The guilt/fault theory of divorce under Section 13(2) of the Hindu Marriage Act, 1955, provides four additional grounds on which a wife can seek divorce from her husband. These grounds include:
Pre-Act Polygamous Marriage: If the husband has another wife from before the commencement of the Act and is alive at the time of solemnization of marriage with the petitioner.
Rape, Sodomy or Bestiality: If the husband has been guilty of rape, bestiality or sodomy since the solemnization of the marriage.
Discontinuance of Cohabitation after an Order of Maintenance: If a wife has obtained a decree under Section 18 of the Hindu Adoption & Maintenance Act, 1956 and an order of maintenance in proceedings under Section 125, CrPC. and the cohabitation has not been resumed between parties after one year or more.
Repudiation of Marriage: This ground for divorce is available to the wife if she has expressly (in written or spoken words) or impliedly discarded the marriage when the marriage was solemnized before she attained the age of fifteen years but before the age of eighteen.
Mutual Consent Theory of Divorce
The Indian law provides for the dissolution of marriage through mutual consent in Section 13(B) of the Hindu Marriage Act, by the Marriage Laws (Amendment) Act, 1976. This provision acknowledges that marriage is a social contract that two individuals enter into voluntarily and that they should be allowed to dissolve the marriage if they agree to do so.
The fault or guilt theory, on the other hand, requires one of the spouses to be guilty of some matrimonial offence for the marriage to be dissolved. The mutual consent theory, in contrast, recognizes that an unhappy marriage can give rise to misconduct and delinquency and that both spouses should be granted the remedy of divorce if they agree to separate.
Critics argue that the mutual consent theory makes divorce difficult since it requires the consent of both parties. However, if both parties agree, they can file a joint petition in court for divorce. This theory is a positive effort towards preventing miserable cohabitation and protecting the freedom of marriage by recognizing the freedom of divorce.
Irretrievable Breakdown Theory of Divorce
The concept of irretrievable breakdown of marriage is a relatively recent addition to the grounds of divorce and one of the theories of divorce under Hindu Law. It was introduced in the Hindu Marriage Act in 1976 by the Marriage Laws Amendment Act.
Under this ground, a petition for divorce can be filed by either party, without having to prove any specific fault or wrong-doing on the part of the other party. The only requirement is that the marriage has broken down irretrievably and that there is no possibility of reconciliation between the parties.
This ground of divorce is based on the recognition that in certain cases, it may be better for the parties to end the marriage rather than continue in a relationship that has become acrimonious or intolerable. In such cases, it is considered to be in the best interests of both parties to allow them to move on with their lives and seek happiness elsewhere.
In cases where both spouses cannot live together peacefully and benefit from the marriage, it may be better to dissolve the marriage through mutual consent rather than retaining an empty shell. This theory presumes a de facto breakdown of the relationship. If the parties have been living separately for a significant period of time (two or three years or more) with or without a reasonable cause and all attempts to restore the foundation of the marriage have failed, it is presumed by law that the relationship is entirely unworkable, emotionally and physically dead, with no hope of resuming spousal duties.
In the landmark case of Naveen Kohli v. Neelu Kohli, the court held that the marriage bond was beyond repair and the legal ties had to be severed because of the serious allegations of adultery, cruelty and other types of misconduct made by both parties against each other. The Supreme Court urged the Union of India to include ‘Irretrievable Breakdown of Marriage’ as a separate ground for divorce under Section 13 of the Hindu Marriage Act, 1955 and amend the act.
The 71st Report submitted by the Law Commission of India in 1978 discusses the theory of the Irretrievable Breakdown of Marriage, questioning the conditions, applicability and extent to which this theory can be included as a ground for divorce under the Hindu Marriage Act. Currently, only the Supreme Court of India can grant a divorce on the ground of the theory of irretrievable breakdown of matrimonial relationships.
The theories of divorce under Hindu Law provide us with various grounds for the dissolution of marriage. The Hindu Marriage Act recognizes different theories of divorce under Hindu Lawsuch as fault or guilt theory, mutual consent theory and irretrievable breakdown theory.
The fault theory requires that one of the spouses should be guilty of a matrimonial offence to dissolve the marriage. The mutual consent theory provides a way out for both parties if they agree to part ways of their own free will. Finally, the irretrievable breakdown theory is not yet a separate ground for divorce under the Hindu Marriage Act but is recognized by the Supreme Court.
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