Different Theories Of Divorce

Different Theories Of Divorce


Introduction

Laws relating to marriage in India are not uniform. The case is the same for laws relating to divorce. They vary according to the religion one belongs to and hence, they originate out of different theories. This article sheds a light on the various theories based on which the divorce laws in India have taken place, specifically under Mohammedan and Hindu Law.

Divorce at Will Theory

Under the divorce at will theory, a person can essentially divorce their spouse whenever and under whatever circumstances they please.[1] This theory of divorce is highly contested owing to the fact that it makes the process of entering into a marital relationship more strenuous as compared to the process of its dissolution.[2] While this theory finds recognition under Mohammedan Law, it has no place under the Hindu Marriage Act, 1956.

Fault/Offence/Guilt Theory

Under the fault theory of divorce, if one party’s behavior results in a marital offense, the other party is entitled to seek dissolution of marriage from the delinquent spouse.[3] Under this theory, a divorce can only be granted based on specific grounds such as cruelty, rape, sodomy, desertion, etc. These grounds are enumerated under Section 13 of the Hindu Marriage Act. Here, there must always be one guilty spouse and an innocent spouse.[4] In fact, this principle was interpreted in the extreme under English Law. Essentially, under English Law, if a party sought a divorce base on the delinquent behavior of their spouse, they could be denied the same if their own delinquency is subsequently proved.[5] 

For instance, if a husband went to court seeking a divorce on the ground of adultery, he would be deny the same if it was proved that he was an adulterer as well. This is because in such a case, there would no innocent party. This principle is know as the Doctrine of Recrimination.[6] However, the law as under the Hindu Marriage Act had taken a much more “conservative stance”.[7] Originally, the three traditional grounds that constituted the fault theory of divorce, i.e., desertion, adultery, and cruelty were only causes of seeking judicial separation and not a divorce. Eventually, divorce base on, inter alia, these three guilt grounds was permit.

Section 13 and Section 23

However, to avail refuge under Section 13(1)(i) of the Hindu Marriage Act, an additional requirement needs to be satisfied. This requirement is encompass in Section 23(1)(b) of the Hindu Marriage Act. According to this Section, the ‘innocent’ party should have not in any way condoned the respondent’s marital offense.[8] They should also not have acted as accessories to their spouse’s offenses.[9] 

This means that the offense should not have been a direct or indirect repercussion of the innocent party’s actions. According to Munir v. King-Emperor, “connivance is a figurative expression meaning a voluntary blindness to some present act or conduct, to something going on before the eyes, or something which is known to be going on, without any protest or desire to disturb or interfere with it.”[10] Further, it was held in Dastane v. Dastane that in order for there to be condonation, there must exist forgiveness and restoration.[11] Casual sexual intercourse does not condone the spouse’s offense and does not thereby amount to condonation.[12]

Frustration of Marriage

Under this theory of divorce, there is no guilty party. There is no marital offence that has been commit. However, there are certain cases, such as unsoundness of mind, disease etc. wherein the other party is entitle to seek a divorce.[13] Under Hindu Marriage Act, the following constitute as the reasons for seeking a divorce under this theory: Incurably of unsound mind, virulent and incurable leprosy, communicable venereal disease and renunciation of the world by entering a religious order.[14]

Mutual Consent Theory

This theory of divorce is completely opposite to the fault theory, wherein one party files a petition against the other, who then resists against such a petition. Here, no party is at fault. Both parties file a joint petition in order to separate amicably.[15] The rationale behind this theory is that the “parties to marriage are as free to dissolve a marriage as they are to enter it”.[16] Under the Hindu Marriage Act, this theory is encompass in Section 13B.

There are two main criticisms of this theory; firstly, that it makes obtaining a divorce extremely effortless, and secondly, that it makes obtaining a divorce highly strenuous.[17] The advocates of the first criticism argue that divorce by mutual consent encourage “hasty and ill-considered divorce”.[18] They argue that in light of an easily available option, small fights are often magnify and divorces are rushe, bearing irrevocable repercussions for not just the parties involve, but for their families as well.[19]

Living Separately  

However, safeguards against this criticism have been provided under the Hindu Marriage Act. Section 13-B provides, as one of its conditions for divorce by mutual agreement that the parties must have been living separately for at least a year.[20] Hence, a divorce petition can ordinarily only be present before the court if one year from the date of solemnized of the marriage has passed. “Living separately” under this section can also refer to a nominal separation, wherein the parties live under the same roof, but do not perform their marital obligations.[21] Secondly, both the parties should have mutually agreed to the divorce and hence, hasty decisions taken by one party cannot result into dissolution of marriage.

On the other hand, the advocates of the second criticism argue that the condition requiring mutual agreement makes divorce incredibly difficult to obtain.[22] This is because one party can prevent the divorce from ever happening, simply by withholding consent.

Theory of Irretrievable Breakdown of Marriage

The deficiency of the fault theory that it only permits divorce on certain specified grounds and the consent theory that it either makes divorce too easy or too strenuous, there arose a need for a different theory. The irretrievable breakdown of marriage refers to a situation where in the married couple is emotionally detach from one another.[23] There needs to exist such an intense hatred among them that only a shell of this marriage has survived.

In short, “the substance has disappeared, only form has remained.”[24] Irretrievable breakdown has been explained to mean “such failure in the matrimonial relationships or such circumstances adverse to that relationship that no reasonable probability remains for the spouses again living together as husband & wife.”[25] The theory germinated from the view that in case a marriage has irretrievably broken down, it should be dissolved regardless of whether both parties mutually agree. Under Hindu Law, this theory is encompass under Section 13(1A) of the Hindu Marriage Act.

Conclusion

There are five distinct theories of law out of which all grounds of divorce, whether it be Mohammedan or Hindu Law, can be traced. All five of these theories have their merits and criticisms. Marriages form an essential branch of the society, and hence, it is necessary to put great thought into the jurisprudence that goes behind personal laws.


Reference

[1] Smt. K. Sudhamani, Divorce Under Fault and No Fault Theory, E-Courts Mission Mode Project (Aug. 16, 2017), https://districts.ecourts.gov.in/sites/default/files/familycourtskl.pdf.

[2] Id.

[3] Paras Diwan, Modern Hindu Law 69 (24 edn., 2019).

[4] J. G. Beamer, The Doctrine of Recrimination in Divorce Proceedings, 10 U. Kan. City L. Rev. 213 (1941).

[5]Id.

[6] Id.

[7] Diwan, see note 3 above, at 70.

[8] Hindu Marriage Act, No. 25 of 1955, s. 23(1)(b), India Code (1955).

[9] Id.

[10] (1962) AIR 1926 All 189 (India).

[11] (1975) AIR 1975 SC 1534 (India).

[12] (1981) 1 DMC 92 (India).

[13] Sudhamani, see note 1 above.

[14] Hindu Marriage Act, No. 25 of 1955, India Code (1955).

[15] Sudhamani, see note 1 above.

[16] Gaurac Mehta, Universal’s Master Guide to Judicial Service Examination 201 (Universal Law Publishing Co., 2010).

[17] Diwan, see note 3 above, at 72.

[18] Law Commission of India, Family Law: The Ground for Divorce, Report No. 192 (October 1990), available at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/07/LC.-192-FAMILY-LAW-THE-GROUND-FOR-DIVORCE.pdf (last visited on January 11, 2021).

[19] Diwan, see note 3 above, at 72.

[20] Hindu Marriage Act, No. 25 of 1955, India Code (1955).

[21] Sureshta Devi v. Om Prakash, (1992) AIR 1992 SC 1904(India).

[22] Diwan, see note 3 above, at 72.

[23] Mayank Shekhar, Divorce Under Hindu Law (Theories), LegalBites (June 10, 2017),https://www.legalbites.in/law-notes-hindu-law-divorce/.

[24] Diwan, see note 3 above, at 73.

[25] Mehta, see note 16 above.


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