Theories of Divorce Under Hindu Law

The paper explains theories of divorce under Hindu Law, it studies various theories of divorce-guilt theory, mutual consent theory, breakdown theory. It presents how prior to the enactment of the Hindu Marriage Act, 1955, the concept of divorce was unknown and non-existent. This paper deals with the legislation and provisions which provides spouses with a legitimate way to get separated. The special grounds for divorce that are only available to a wife are also briefly explained.

Introduction

Divorce means legal dissolution and termination of marriage by a competent court; it means the parties granted divorce are no longer husband and wife. Marriage is regarded as a social institution and not simply a transaction between two individuals and therefore it was contended that there was a social interest in prevention and protection of the institution of marriage was safeguarded with legal protection.
Since India is a land of diversity, many religious communities co-exists, having their own marriage laws, the divorce procedure too varies, according to the religion of the couple seeking divorce. Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act, 1955, in accordance with the divorce laws in India. The Act laid down the provisions for divorce under Section 13, 13(B), 14 and 15.
From ancient time, it was considered that marriage is meant to be eternal and an unbreakable tie between husband and wife. The theory of Shastric Hindu Law says that even if the relations between the spouses are miserable and sorrowful, they have to live and die with it. Manu does not believe in dissolution of marriage, he declared that a wife cannot be released by her husband either by abandonment or by sale and the spouses cannot be separated in any way. Whereas according to Kautilya’s Arthashastra, marriage might be dissolved by mutual consent in the case of illegitimate form of marriage. Therefore, the Hindu Marriage Act is indeed a revolutionary act of legislation from this point of view, the Act abandoned the historical values and norms and has introduced crucial and dynamic changes in the Hindu Law of Marriage and Divorce, it has laid down provisions regarding divorce under different circumstances.
There are various theories according to which a married couple can give divorce, these theories are the reasoning given behind the separation or dissolution of marriages. There are mainly three theories for divorce under Hindu law and are broadly categorized into: –

  1. Guilt/Fault Theory of Divorce
  2. Mutual Consent Theory
  3. Irretrievable Breakdown of Marriage.

Guilt/Fault Theory of Divorce

According to the guilt theory of divorce, marriage can be dissolved only when either spouse has committed a matrimonial offence. The theory implies that it is necessary to have a guilty and an innocent party, and only the innocent party can seek the remedy of divorce, there should be personal injury to the marital relations to the individuals. However, as an effect to the guilt of one party, the other party is required to be completely innocent, thus the major drawback of this concept is that if both parties have been at fault, there is no remedy available for the dissolution of marriage.
The Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976 which states nine grounds based on guilt theory of divorce: 1) Adultery, 2)Cruelty, 3) Desertion, 4) Insanity or mental disorder, 5) Conversion, 6)Venereal communicable disease, 7) Leprosy, 8) Renunciation, 9)Presumption of death.

Adultery

The matrimonial crime of adultery is a recognized ground under the guilt theory. Even under the Shastric Hindu law, when divorce had not been recognized, adultery was considered sin in the most incontrovertible terms. The consensual sexual intercourse or voluntary extra marital affair between a married person and another married or unmarried person, not being the other’s spouse, is termed as the offence of adultery.
The present condition under the Hindu Marriage Act by the Marriage Laws Amendment Act,1976 allows even the single act of adultery enough for the dictum of divorce.[1] It is obligatory to establish that at the time of the act of adultery the marriage was lawful, since adultery is a crime against marriage. The offence or crime of adultery may be proved by: a) Circumstantial evidence, b) Contracting Venereal disease.
In Swapna Ghose v. Sadanand Ghose[2], the wife found her husband and the adulteress to be lying together on the bed at night and it was further proved by the neighbour that the husband was living with the adulteress as husband and wife, and the evidences were sufficient to constitute this case as an offence of adultery.

Cruelty

The cruelty is a developing concept, the modern theory of cruelty includes both physical and mental cruelty. Acts of cruelty are behavioural exemplification specified by different factors in the life of spouses, each case has to be then constituted on the basis of its own set of facts.
While physical cruelty is easy to rectify, it is very to hard to determine what mental cruelty consists of. Mental cruelty is lack of such conjugal kindness of marital relations, which causes the suffering of such a degree that it adversely affects the mental health of the spouse on whom it is inflicted. Some examples of Cruelty are, false accusation of adultery, demand of 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 ‘state of mind’.[3]

Desertion

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. It means a total rejection of marital obligation and legal responsibilities.
The following five conditions must be co-existing to constitute desertion and ground for divorce:

  • animus deserdendi (intention to desert)
  • the factum of separation
  • desertion without consent of other party
  • desertion without any reasonable cause
  • de jure period of two years must have run out before filing a petition.

In Bipinchandra v. Prabhavati[4] the Supreme Court states that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently he shows an intention of returning and subsequently prevented from doing so by the petitioner.

Insanity or Mental Disorder

Insanity or mental disorder as a ground of divorce has the following two prerequisites:

i) The person has been suffering from incurable unsoundness of mind

ii) The suffering should be continuous and mental disorder of respondent is of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Conversion

Conversion is a ground of divorce where the remedy of divorce is granted to the aggrieved person, when the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, etc.

Venereal Communicable Disease

It is a ground of dissolution of marriage under fault theory where remedy of divorce is granted when the respondent is suffering from  venereal disease which is communicable in nature irrespective of the duration or period for which the respondent has suffered from it, and  it is not necessary that it should have been communicated to the petitioner.

Leprosy

The Contagiousness of leprosy are responsible for creating psychology where man not only avoids the presnce of lepers but looks at them contemptuously. Thus, it is granted as a remedy for divorce. The obligation of proving this is on the petitioner.

The Personal Laws (Amendment) Bill, 2018 directs to remove leprosy as a ground for divorce in five personal laws including Hindu Marriage Act.

Renunciation

Renunciation of world by entering into a holy order (sanyasa) is a ground for divorce only under Hindu law, as the renunciation of the world is a classic Hindu belief. Modern codified Hindu law lays down the remedy for divorce that a spouse may seek if the respondent has renounced. A person who does this is considered as civilly dead and free from every societal obligation. Such renunciation by entering into a religious order must be explicit & absolute.

Presumption of Death

Under this concept, 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 specified period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof and support cases where it would be extremely difficult if not impossible to prove that fact. A remedy of divorce granted under this clause is valid & effective even if it subsequently emerges that the respondent was, in fact, alive at the time when the decree was passed.

Wife’s Ground for Divorce

There are additional four grounds under the guilt/fault theory of divorce on which wife alone can sue husband for divorce under Section 13(2) of the Hindu Marriage Act, 1955, are as follows:

  1. Pre-Act Polygamous Marriage: if the husband has another wife from before the commencement of the Act, and alive at the time of solemnization of marriage with the petitioner.
  2. Rape, Sodomy or Bestiality: if the husband has, since the solemnization of the marriage, been guilty of rape, bestiality, or sodomy.
  3. Discontinuance of Cohabitation after an Order of Maintenance: If a wife has obtained a decree under Section 18 of 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 upwards, then this is an effective and  valid ground for suing for divorce.
  4. Repudiation of Marriage: this provides a ground for divorce to the wife where she expressly (written or spoken words) or impliedly discarded the marriage when the marriage was solemnized before she attained the age of fifteen years, and, but before the age of eighteen.

Mutual Consent Theory of Divorce

The provision for dissolving marriage through mutual consent in India is mentioned in Section 13(B) of the Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976.

Since two persons marry by their free will, they entered into a social contract of marriage therefore they should also be allowed to move out of the relationship by their own free will and dissolve their marriage. Miserable cohabitation may give birth to matrimonial delinquencies and misconduct which give rise to grounds for divorce. According to this theory, if the spouses agree to separate and part their ways, they should be granted with the remedy for divorce and permitted to get their marriages dissolved. Granting divorce on the ground of mutual consent before their married life is spoiled by the delinquency is a positive effort and good for both the spouses.

The fault or guilt theory suggests that one of the spouses should be guilty of some matrimonial offence, then only the marriage can be dissolved. Therefore, divorce by mutual consent asserted that freedom of marriage implies freedom of divorce. The law recognizes the situation that has existed for some time and in effect results into an unhappy marriage. Divorce by mutual consent means that both the party files a joint petition in the court for divorce between them.

The major criticism of this theory is that it makes divorce very difficult, since it requires the consent of both the parties and if one of the parties refuse to give his or her consent, therefore divorce can never be obtained.

Irretrievable Breakdown Theory of Divorce

The breakdown theory of divorce says that if a marriage had broken down without any possibility of restoration then it should be dissolved. The theory believes that if a marriage has broken down irretrievably, therefore divorce should be granted.

Where neither of the spouses can live peacefully together and acquire the benefits of a married relationship, then it is better to dissolve the marriage through mutual consent as there is no use in keeping and retaining the empty shell. The theory presumed the breakdown of relationship de facto. If the parties to marriage are living separately for longer period of time (‘two or three years or more) with or without any reasonable cause, and all their attempts to restore the foundation of marriage failed, it will be presumed by laws that relationship is totally unworkable, both emotionally and physically dead with no hope of resumption of spousal duties.

In a landmark judgement, Naveen Kohli v. Neelu Kohli[5], the parties were married in 1975 and after few years of their marriage, their relationship turned sour. There were allegations of adultery, cruelty, and other types of misconduct from both the parties against each other, and they were living separately for more than ten years. According to the court, the allegations were of such serious nature that there was no possibility to restore the foundation of marital life between them. The Supreme Court held that there has been a long period of separation, it may fairly be concluded that the bond is beyond repair, therefore the legal ties has to be severed.

The Supreme Court made a strong plea to the Union of India for including ‘Irretrievable Breakdown of the Marriage’ as a separate ground for divorce under Section 13 of the Hindu Marriage Act, 1955, and amending the Act. The 71st Report submitted by the Law Commission of India in 1978 deals with the theory of the Irretrievable Breakdown of Marriage, the report questions the conditions, applicability and the extent on which this theory can be included as a ground for divorce under Hindu Marriage Act.

Except Supreme Court, no court in the country can grant divorce on the ground of the theory of irretrievable breakdown of matrimonial relationship.

Conclusion

Over the decades, there has been a change in social thinking in the matter of relationship between husband and wife. The determination and desire to live separately rather than to remain together and united in an unhappy marriage is gaining acceptance in our society.

Prior to the enactment of the Hindu Marriage Act, 1955, divorce was unknown to general Shastric Hindu laws as marriage was regarded as an eternal bond and considered as an indissoluble union of husband and wife. Now the legislation and provisions for seeking divorce provides for a legitimate way to get out of an unpleasant and sorrowful marriage.

The provisions of the Hindu Marriage Act, 1955 reveals that most of the grounds under sub sections (1) & (2) of Section 13 are mainly based on fault or guilt theory of marriage. There are also provisions for dealing with divorce by natural consent under Section 13(B) and Section 14, which is based on theory of mutual consent of divorce. With regard to ‘Irretrievable Breakdown of Marriage’, the Government of India has attempted to include it as a ground of divorce under the Hindu Marriage Act. With the legislation and enactment of various theories of divorce, the spouses are now more independent and self-reliant. They are prepared to live happy separately rather than stay united while unhappy.

FAQs

Q.1. What Are the Grounds Based on Guilty Theory of Divorce Under Hindu Marriage Act, 1955?

Ans. The Hindu Marriage Act, 1955 states nine grounds based on guilt theory of divorce:          1) Adultery, 2)Cruelty, 3) Desertion, 4) Insanity or mental disorder,  5) Conversion, 6)Venereal communicable disease, 7) Leprosy, 8) Renunciation, 9)Presumption of death.

Q.2. Who Can Grant Divorce on The Ground of The Theory of Irretrievable Breakdown of Marriage?

Ans. Except Supreme Court, no court in the country can grant divorce on the ground of the theory of irretrievable breakdown of matrimonial relationship.

Q.3. What Are the Major Sections for Divorce Mentioned Under the Hindu Marriage Act, 1955?

Ans.  The Hindu Marriage Act, 1955 laid down the provisions for divorce under Section 13 (1) & (2), 13 (B), 14 and 15.

Q.4. What Are Wife’s Special Grounds for Divorce Under the Guilt Theory of Divorce?

Ans. There are four grounds under the guilt/fault theory of divorce on which wife alone can sue husband for divorce:

  1. Pre-Act Polygamous Marriage
  2. Rape, Sodomy or Bestiality
  3. Discontinuance of Cohabitation after an Order of Maintenance
  4. Repudiation of Marriage

References

The Hindu Marriage Act, 1955 https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf

https://shodhganga.inflibnet.ac.in/bitstream/10603/39005/12/12_chapter%204.pdf

https://blog.ipleaders.in/irretrievable-breakdown-marriage-history-applicability-current-status-india/


[1] Vira Reddy v. Kistamma, 1969 Mad. 235; Subbarma v. Saraswathi, (1966) 2 MLJ 263.

[2] AIR 1979 Cal 1.

[3] AIR 2002 SC 2528.

[4] AIR 1957 SC 176.

[5] AIR 2006 SC 1675

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