Date: 17 November, 2020
by Divya Menon, UILS, Panjab University
Divorce under Hindu Law, is broadly based on three theories-
1. Offence or Guilt or Fault Theory.
2. Consent Theory
3. Irretrievable breakdown of Marriage Theory.
1. FAULT THEORY:
Under the Fault theory or the offence theory or the guilt theory, marriage can be dissolved only when either party to the marriage has committed a matrimonial offence.
It is necessary to have a guilty and an innocent party, and the only innocent party can seek the remedy of divorce. However, the most striking feature and the drawback is that if both parties have been at fault, there is no remedy available under this theory.
Under the Hindu Marriage Act 1955, Section 13 provides for grounds of divorce. The amending act of 1976 has made adultery, cruelty and desertion as Fault grounds of divorce. The wife has been provided with additional grounds, viz., rape, sodomy or bestiality of the husband.
The petitioner in every such divorce arising out of the Guilt of the other partner has to prove there is no collusion and that the petitioner is innocent.
2. CONSENT THOERY:
Much against the Fault Theory, there is the Consent Theory of free divorce.
The protagonists of this theory hold that as parties to marriage are as free to dissolve a marriage as they are to enter it. They say that an unhappy marriage is a breeding ground for delinquent children and the continuance of such marriage is not for the individual or social good.
Critics of this theory say that this would lead to hasty divorce and loss of sanctity in the institution of marriage.
Divorce by mutual consent was added to the Hindu Marriage Act in the year 1976.
3. IRRETRIEVABLE BREAKDOWN OF MARRIAGE THEORY:
This theory represents the modern view of divorce. It is neither too rigid nor very lenient. It says that if a marriage is broken beyond the possibility of repair, such marriage should be dissolved and the question as to if a marriage is broken irretrievably or not is left to the Courts.
In Hindu Law, the breakdown has its own version. Under the Hindu Marriage Act 1955-76, divorce can be obtained by either party :
(a) if it is shown that a decree for restitution of conjugal rights has not been complied with for a period of one year or more, or
(b) if it shows that cohabitation has not been resumed for a period of one year or more after passing of the decree for judicial separation.
It should be remembered that irretrievable breakdown of Marriage is not a ground of divorce in India but Courts can exercise their powers and evolve jurisprudentially this form of divorce .
In a landmark ruling the Supreme Court in October 2019 (in Munish Kakkar v. Nidhi Kakkar, Civil Appeal No. 9318 of 2014)
The Court held "We are of the view that an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately. We, thus, exercising our jurisdiction under Article 142 of the Constitution of India, grant a decree of divorce and dissolve the marriage inter se the parties forthwith."