What are the Theories of Divorce?

Supreet Kaur

Ancient Hindu law considered marriage as a sacramental, permanent and an eternal union. According to Ancient law, marriage is a holy union of two souls which continues in the next births as well.

Although marriage is considered as an indissoluble union, Hindu sages recognized the wife’s right to get rid of her husband under very exceptional circumstances. These exceptions are:

• if the husband is of bad character
• if he is missing or dead
• if the husband is impotent
• if he is a traitor or if the husband is likely to endanger the life of wife.

So, it can be inferred that Ancient Hindu law recognized the concept of divorce.

Divorce means putting the holy union of marriage to an end. After divorce, there is no relation of husband and wife and all obligations of a marital life comes to an end. This concept gained more importance when the sacramental nature of marriage began shifting towards contractual nature when ideas of liberty and equality become popular as basic human rights. Hindu codified law also recognized divorce. Considering the contractual nature of marriage, it can be said that a marriage can be repudiated like a contract. If we want to understand the causes of divorce, we have to refer the theories governing the divorce.

There are basically three theories of divorce:

• Offence/ Guilt/ fault theory of divorce.
• Consent theory.
• Irretrievable breakdown of marriage theory.

Guilt Theory of Divorce

This theory works on the principle that if one of the party to a marriage is guilty of an matrimonial offence that is the offence which destructs the very foundation of marriage, the other party cannot be forced to live with the guilty party, it may seek divorce. It is essential that the other partner did not connive or condone the guilty partner. Moreover, one cannot be allowed to take advantage of one’s own wrong. For instance, if the guilt of one partner is with the consent of the other partner.

Old English law required that the party which seeks divorce must be innocent. If both parties are guilty of some matrimonial offence say cruelty, divorce cannot be granted to any of them. This is the doctrine of recrimination. But modern English law does not recognize this principle.

Modern Hindu law also recognizes guilt theory of divorce. Some common fault grounds are:

• Adultery:

In a martial relation, it is expected that the partners are loyal towards each other. Adultery by one of the partners can cause extreme hardship for other, it breaks the trust between partners which is very essential in a martial tie. Adultery means having sexual intercourse outside the wedlock. So, if one party is guilty of Adultery and the offence is proved, divorce can be granted.

• Cruelty:

Treating the other partner with brutality is sufficient cause to grant divorce. Cruelty may be physical or mental, subtle, or brutal or something which makes it difficult for the parties to live together. Physical violence is best example of cruelty. Since marriage does not give someone the right to be cruel towards other partner. This ground saves numerous women who had been the victim of domestic violence.

• Desertion:

Marriage contains certain obligations as well. One such is cohabitation and enjoying the company of each other. If one of the partner leaves another without any reasonable cause, it amounts to desertion. Even non fulfillment of marital obligations despite living in the same house, amounts to desertion.

These are fundamental faulty grounds but now many other grounds are recognized like if one partner is suffering from insanity, leprosy, venereal diseases, or if one partner has renounced the world or is dead, if the partner is guilty of heinous crimes like rape, bestiality, sodomy etc.

Section 13 of Hindu Marriage Act, 1955 lays down several fault grounds. It also gives special grounds to wife. Muslim law also recognizes guilt theory of divorce since the forms of divorce like Zihar, Lian, are based on guilt of one partner. Section 2 of Dissolution of Muslim marriage Act, 1939 lays down ground of divorce like absence of husband, imprisonment of husband, impotency of husband, leprosy, insanity, failure of husband to maintain his wife, cruelty of husband.

Consent theory

As the parties are free to enter a contract of marriage, they are free to dissolve the marriage by mutual consent. If the parties, after entering the marital tie, realize that they could not live together harmoniously, they could no longer adjust their differences, it is impossible to continue the marital tie, both can come together and file divorce petition.

This form of divorce is recognized in many parts of world like China, Latin American states, Belgium, Norway, Sweden, and other Eastern European countries.

Modern Hindu law also recognizes this form of divorce. Section 13 B of Hindu Marriage Act, 1955 deals with Divorce by mutual consent. This form is also incorporated under Special Marriage Act, 1954. Khula and Mubarat under Muslim law are forms of divorce by mutual consent.

This theory has been criticized as well on following points:

• It makes divorce easy

As it is said that marriage is not only a union of two persons but of two families as well and consent theory makes divorce very simple. Two persons may not try to adapt with each other. People may forget about adjustment which is essential in every walk of one’s life.

Under Hindu law, marriage is still considered as a sacrament although it has features of a contract but still people believe in holy nature of this relationship. Consent theory paves pay for divorce by simple mechanism.

But we have certain provisions under Hindu Marriage Act, 1955 which solve this problem. like According to Section 13 B, parties must wait for one year before presenting a petition for divorce and check whether they can live together. It implies a duty on parties to try to save the holy union. The Matrimonial Causes Act 1973 of English law requires the parties to wait for period of two years and then file for divorce.

• It makes divorce difficult

If one of the parties does not want to live with the other but there is no sufficient ground available to bring action against the other party, and the other partner does not agree on mutual divorce, it may cause hardship to the party.

Certain habits of other partner may not be liked by one partner like excessive drinking but it is not a ground of divorce, so there is no remedy available to the innocent party.

Irretrievable breakdown of marriage theory

In case a marriage has completely broken down, there is no possibility of reconciliation, parties have completely different stands to each other and there remains nothing of the marriage and it becomes an empty shell.

Sometimes it may be difficult to prove the offence of other spouse in the court or the other spouse may not agree on mutual divorce, it leads to great difficulty as spouses are compelled to sustain that tie despite their will. So, is it worth to keep living in such a marriage? In such cases it is better to dissolve the tie than to remain in an unhappy relation.

This ground has been recognized in many systems of law with some modifications like in Soviet Union, West Germany, East European countries, divorce is granted on the ground that marriage has broken down beyond any possibility of repair. In Countries like Sweden, New Zealand, U.S.A, Australia and India, the Legislature provides certain period and conditions after which the divorce may be sought on this ground.

For example, under Swedish law, divorce may be granted if parties continue to live apart for one year after the decree of judicial separation is passed. According to law of South Wales, divorce may be granted if the decree of restitution of conjugal rights is not compiled with.

In India, Hindu Marriage Act, 1955, provides two instances to get divorce on this ground:

• if the decree of restitution of conjugal rights is not complied with even after the expiry of one year or more
• if the parties continue to live separate for period above one year after a decree of judicial separation is passed.

Special Marriage Act also have these provisions under Section 27(2).

Conclusion

These three theories are widely accepted as the ground for granting divorce. However, the position regarding irretrievable breakdown of marriage is still under progress in India. Irretrievable breakdown of marriage is not a ground of divorce itself as observed in Manisha Tyagi v. Deepak Kumar.^[1] The parties must wait for some period even if there is nothing left in that marriage. But the waiting period to seek divorce has been waived off in some case where subsistence of marriage causes extreme hardship to one spouse.^[2]

The Supreme Court of India recommended the Union Government to add it as a ground of divorce under Hindu Law in case of Navin Kohli v. Neelu Kohli.^[3] The 71^st report of Law Commission also recommended to make irretrievable breakdown of marriage a ground for divorce. But this has not been done yet.

Marriage as a sacred union has its own importance but in modern society, freedom, liberty, and choice have equal importance. No one should be compelled to sustain a martial tie owing to legal or social bars.

1. 2010 SC 1042 ↑
2. Kanchan Urpethi v. Komal Urpethi 2017 Utr 65, Meghanatha v. Sussheela, 1957 Mad 423. ↑
3. 2006 SC 1675

References :

Hindu law – Paras Diwan

Muslim law- Aquil Ahmed ↑