THEORIES OF DIVORCE UNDER HINDU LAW

THEORIES OF DIVORCE UNDER HINDU LAW

INTRODUCTION

From the ancient times itself the Hindu Marriage was considered as a sacramental union between the husband and wife that lasts till the death or a sacred tie which can never be broken. Once created this sacred tie cannot be untied. Hindus considered the separation of spouses as an act which break’s the God’s law. Therefore they didn’t recognized separation, but after the enactment of Hindu Marriage Act, 1955 it has laid down provisions regarding divorce. Sections 13, 13(1A), 13A, 13B, 14, and 15 deals with the divorce and related things associated with it. According to Kautilya in Arthashatra, marriage can be dissolved by mutual consent in an unapproved form of marriage. On the other hand, Manu believed that marriage being a sacrament cannot be discontinued and the fidelity between the husband and the wife should be carried till their last breaths. However, the conditions changed after divorce was introduced under Hindu Marriage Act, 1955.  

Also Read: REGISTRATION OF MARRIAGE UNDER HINDU LAW

What is Divorce under Hindu Law

Divorce means putting an end to the marriage by dissolution of marital relations. It is the legal dissolution of a marriage by a court or any competent court. After divorce parties can no longer be husband and wife. The decree of divorce allows each of the parties to have fresh marriages as they like. In the modern days divorce is allowed for the spouses if they cannot live in compromise to each other. In Hindu law, divorce is governed by Hindu Marriage Act, 1955. The following sections of the act deals with divorce:
i. Various grounds on which divorce can be claimed under Section 13,
ii. Additional grounds for Hindu wife who can claim divorce under Section 13(1A), iii. Alternate reliefs in divorce proceedings under Section 13A,
iv. Divorce by mutual consent under Section 13B,
v. Presentation of petition for divorce under Section 14,
vi. Divorced persons when marry again under Section 15 of the act.

Theories associated with Divorce under Hindu law

There are various theories associated with divorce in Hindu law they are:

1. FAULT OR GUILT THEORY                                                                             

This theory is based on the 19th century concept where society considered divorce as an evil concept. If one of the parties has committed a sin or a matrimonial offence such as adultery, cruelty, rape, desertion, bestiality, refusal to obey the court order for maintenance, or marrying an underage person then that marriage can be dissolved on the basis of these grounds.

Divorce is granted only on the basis of these matrimonial offences. Even if the defendant have committed other heinous offences it will not exist as a ground for divorce. There are mainly two parties included in the fault theory one is the guilty party (who has committed the matrimonial offence) and the other is the innocent party (who is the aggrieved party).

The major drawback of this theory is that if both parties are at fault no divorce can be granted and also if the innocent party forgives the act of the guilty party no divorce will be granted. The divorce legislation in India is based on ‘fault theory’ that is no party should take advantage of his/her own fault [1]. Most of the grounds for judicial separation and divorce which are contained in the Hindu Marriage Act, 1955 is based on this theory. The various grounds for divorce based on this theory are Adultery, Cruelty, Desertion, [2] Rape, Bestiality, and Maintenance to wife [3].

2. FRUSTRATION THEORY

In this theory, the concept of divorce is a relief from frustration. Frustration can occur to spouses due to various reasons. The feeling of deep anguish, disappointment, and frustration in one spouse caused by the conduct of others for a long time may lead to mental cruelty [4]. According to this theory, either of the spouse can put an end to the marriage on the basis of a mental disorder, any physical ailment, conversion of religion, renunciation of the world, and being unheard for a very long period of time. Only these factors remain as the ground for divorce and any type of marital offences will not include in this theory.                                  

If a person prefers divorce on the above-mentioned causes it is considered as a valid ground under this  theory. The Hindu Marriage Act 1955, considers Apostasy(conversion of religion), Unsoundness of mind, Renunciation of world [5] as valid grounds for divorce.

3. MUTUAL CONSENT THEORY

In this theory divorce is obtained by the spouses for their own good. According to this theory the spouses by mutual consent can put an end to the marriage without any arguments. The husband and wife can jointly file a petition for divorce. They can move out of the marriage in free will. The essential ground for divorce under this theory is mutual consent to dissolve the marriage, that is free consent of both parties without any compulsion is needed.

The Supreme Court has observed that the mutual consent should continue till the divorce decree is passed and the court should be satisfied with the bonafide consent of the parties [6]. The disadvantage of this theory is that the spouses may decide to dissolve the marriage on collusion and on small causes or immediate temperament. Divorce by mutual consent was not included in the original Hindu Marriage Act, 1955 but later it was amended and got included in the act [7].

4. IRRETRIEVABLE BREAKDOWN THEORY

If any failure in matrimonial relationships or any other such irretrievable circumstances arises and the spouses in no probability can’t live together a breakdown occurs in the marriage. In such a situation the spouses can opt for divorce. According to this theory, after a breakdown, if the court finds that the spouses cannot live together or is beyond repair, the husband and wife are allowed to live separately for a definite period of time without any communication and emotional attachment.

After this period of time they can decide to get divorced, such type of marriage may be dissolved without any delay even if one of the parties desires to get a divorce. The main idea behind this theory is to reduce the number of unhappy marriages in the society. The major drawback of this theory is that the spouses can obtain divorce easily and it gives an advantage to the guilty party.

The Supreme Court has observed that an irretrievable breakdown of marriage is not a ground for divorce under Hindu Marriage Act, 1955 and made a recommendation to make it as a ground for divorce [8]. In the Hindu Marriage Act, 1955 an attempt has been made to introduce this theory as no resumption of cohabitation after decree of judicial separation [9] and no compliance with a decree of restitution of conjugal rights [10].

CONCLUSION

The Hindu Marriage Act, 1955 have made major reforms in Hindu law. It has brought changes in the concept of marriage. Earlier divorce was considered as a sin but the codified law have brought changes in the concept. If a marriage become unhappy the spouses can seek for divorce. In Hindu law the Fault theory, Frustration of marriage theory, Mutual consent theory are acknowledged and divorce can be obtained by the grounds mentioned in them.

The Supreme Court has made recommendations in many cases to include the Irretrievable break down as a special remedy in the Hindu Marriage Act, 1955 because sometimes it is very difficult to the parties to get divorce due to some loopholes. Also the Law Commission Of India in its 71st report has made a detail analysis of this theory and how to incorporate it in the law. In India only the Special Marriage Act, 1954 recognize the irretrievable breakdown as a ground for divorce.

REFERENCES

1. Munish Kakkar v. Nidhi Kakkar, 2019
2. Section 13(1) of Hindu Marriage Act, 1955
3. Section 13 (1A) of Hindu Marriage Act, 1955
4. Samar Ghosh v. Jaya Ghosh, 2007
5. Section 13 (1) of Hindu Marriage Act, 1955
6. Sureshta Devi v. Om Prakash, AIR 1992 SC 1904
7. Section 13(B) of Hindu Marriage Act, 1955
8. Naveen Kohli v. Neelu Kohli, 2006
9. Section 13 (1A) (i) of Hindu Marriage Act, 1955
10. Section 13 (1A) (ii) of Hindu Marriage Act, 1955

Edited By- Ankita Roy