Theoretical Overview
Marriage is an institution in which two people commit to each other and work for their mutual well-being; as a result, families are raised and an inseparable attachment is formed. Human beings are unpredictable, so when the concept of marriage exists, so does the concept of divorce.
Concept of Divorce
The term “divorce” had not been defined by statute, but it could be defined as a legal dissolution of judicial ties established during marriages. Thus, divorce is a seven-letter word separating a married couple at their own will and consent. Thus, divorce can be viewed as a way to end a marriage that occurs not only between two individuals but also between two families.
Theories of Divorce
The theories of divorce are as follows:
The Fault Theory
Divorce fault theories are also known as offense theories or guilt theories. As a result, it emphasizes the point that a marriage can be dissolved if any of the parties within the matrimonial bond commits an offense against the marriage’s innocent party. As a result, within the matrimonial ties, a guilty and an innocent partner are required. The innocent party only has the right to seek divorce redress. The most striking feature, however, is that if both parties are at fault, there is no legal remedy for them.
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.
Mutual Consent Theory
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.
The reasoning behind this theory is that since two people marry each other of their own free will, they should also be allowed to divorce freely. In any case, it has been heavily criticized that this methodology will advance immorality by causing hurried separations and parties breaking down their marriage regardless of whether there was a slight personality conflict.Divorce by mutual consent occurs when both parties file a joint petition in court for divorce.
The main criticism aimed specifically at this theory is that it makes divorce extremely difficult because it requires the consent of both parties, and if one of the parties refuses to give his or her consent, divorce cannot be obtained.
Irretrievable Breakdown Of Marriage Theory
According to the irretrievable breakdown of marriage theory, a failure in the matrimonial relationship due to such adverse circumstances that no reasonable probability of the spouses remaining together remains. The husband and wife will never be able to stay together as a result of such adverse impossible conditions and situations. We can say that in such cases, the emotions of love, affection, and loyalty that should commonly prevail between the husband and the wife are stronger reasons to live apart compared to the emotions of love, affection, and loyalty that should commonly prevail between the husband and the wife. As a result, the reasoning behind this theory is that if a marriage has exhausted all repair options, it should be ended, when a marriage is not able to last then there is no point in sharing rights and obligations between the two parties.
The Supreme Court urged the Union of India to include ‘Irretrievable Breakdown of Marriage’ as a separate ground for divorce under Section 13 of the Hindu Marriage Act, 1955, and to amend the Act. The Law Commission of India’s 71st Report, submitted in 1978, deals with the theory of Irretrievable Breakdown of Marriage. The report questions the conditions, applicability, and extent to which this theory can be included as a ground for divorce under the Hindu Marriage Act.
Except for the Supreme Court, no other court in the country can grant divorce based on the theory of irreversible breakdown of a matrimonial relationship.
Forms of Divorce
The three different forms of divorce are dissolution of marriage, judicial separation and annulment.
1. Dissolution of Marriage – In this case, the person seeking divorce usually files for divorce. If either party has committed a matrimonial offence, the innocent party may file for divorce in the appropriate court. Furthermore, if both parties mutually agree to end the marriage, the parties can be divorced by following all of the procedures.
2. Judicial Separation– Section 10 of the Hindu Marriage Act of 1955 mentions judicial separation. It describes how a husband and wife decide to live apart and may not file for divorce. They may file for judicial separation in conjunction with divorce, or judicial separation may lead to divorce. Couples take this step because they do not want to divorce due to religious or cultural reasons. As a result of the judicial separation order, they can live separately.
3. Annulment– The court declares that the marriage never existed in an annulment. For example, if any of the partners married when they were minors, or if either of the partners is already married to someone else. This annulment is only possible if the marriage was illegal from the start. Section 5 of the Hindu Marriage Act, 1955, describes the conditions for a valid marriage. If conditions such as the majority of the age and the spouse not being married to someone else are violated, the marriage can be annulled.
Grounds of Divorce
Adultery
In many countries, the concept of adultery is not regarded as an offense. However, according to the Hindu Marriage Act, adultery is one of the most important grounds for seeking divorce in a matrimonial offence. Adultery is defined as the consensual and voluntary intercourse of a married person with another person, married or unmarried, of the opposite sex. Even if the intercourse between the husband and his second wife is considered bigamy, the person is liable for adultery.
The Marriage Laws Amendment Act of 1976 inserted the concept of adultery into the Hindu Marriage Act.
Cruelty
The concept of cruelty includes both mental and physical cruelty. When one spouse beats or injures the other spouse, this is referred to as physical cruelty. However, the concept of mental cruelty was introduced because the spouse can be mentally tortured by the other spouse. Mental cruelty is defined as a lack of kindness that has a negative impact on a person’s health. Physical cruelty is easy to define, but mental cruelty is more difficult to define.
Desertion
Desertion is defined as the permanent abandonment of one spouse by the other spouse for no reasonable reason and without his consent. In general, one party’s refusal to accept the obligations of marriage.
Conversion
If one of the spouses converts his religion to another without the consent of the other spouse, the other spouse may petition the court for divorce.
Insanity
When a person is insane, they are mentally ill. Insanity as a ground for divorce has two requirements:
1.The respondent has been incurably insane.
2.The respondent has been suffering from a mental disorder of such a nature and extent that the petitioner cannot reasonably be expected to live with the respondent.
Leprosy
Leprosy is an infectious disease that affects the skin, mucous membranes, nervous system, and other organs. This disease is passed from person to person. As a result, it is regarded as a valid ground for divorce.
Venereal Disease
According to this concept, if the disease is communicable and can be transmitted to the other spouse, it can be considered a valid ground for divorce.
Renunciation
It means that if one of the spouses decides to give up the world and follow God’s path, the other spouse can file for divorce in court. The party who renounces the world is considered civilly dead in this concept. It is a common Hindu practise and a valid ground for divorce.
Presumption of Death
In this case, the person is presumed to have died if the person’s family or friends have not heard from him or her in seven years, whether alive or dead. It is a valid ground for divorce, but the burden of proof is on the person requesting the divorce.
Important Differences
Difference Between Judicial Separation And Divorce
| Judicial Separation | Divorce |
| The suspension of conjugal rights or marital obligations for a specific period of time can be called judicial separation. | Divorce is a process by which the marriage formally comes to an end. |
| Section 10 of the Hindu marriage act, 1955 | Section 13 of the Hindu marriage act, 1955. |
| Can file a petition at any time post-marriage. | Can file only after completion of one year of marriage. |
| The main objective is to grant an opportunity for a reunion in the marriage. | The main objective is to dissolve the marriage. |
| Only one stage of judgment. If the grounds are satisfied, the decree is granted. | Judgment is a two-step process. First reconciliation, then divorce. |
| Marital status remains maintained. | Dissolve the marital status. |
| Temporary suspension of marriage. | Brings marriage to an end. |
| Cannot remarry after the passage of decree. | Can remarry once decree in favor of divorce is passed. |
| The possibility of reconciliation. | No possibility of reconciliation. |
| The right to inheritance remains enforced. | The right to inheritance ends with the passing of the decree for the divorce. |
Relevant Sections
1.Section 13 of Hindu Marriage Act, 1955 -While Clause 1 of Section 13 presents the general grounds of divorce that are available to both the parties involved in a broken marriage, Clause 1-A, introduced in the Act of 1955 by the Hindu Marriage (Amendment) Act, 1964, provides two further grounds for obtaining a divorce decree. Clause 2 of Section 13 specifically provides four grounds that can be availed for getting a divorce only by the wife.
2. Section 13A of Hindu Marriage Act, 1955 – Alternate relief in divorce proceedings. In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi), and (vii) (Conversion, Renunciation, and Presumption of Death)of sub-section (1) of section 13, the court may if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
3. Section 13B of Hindu Marriage Act, 1955- This section mandates that in case of divorce by mutual consent, there has to be a composite period of 18 months of separation — one year provided in Section 13B (1) and six months in Section 13B (2).
4. Section 14 of Hindu Marriage Act, 1955- This section prohibits the filing of a divorce petition within the first year of marriage. Since temperamental differences between the partners can be resolved over time and should not be used as grounds for divorce, it establishes a window for reconsideration and reconciliation.
5. Section 15 of Hindu Marriage Act, 1955- Divorced persons when may marry again. When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.
Important Case Laws
1. Sureshta Devi v. Om Prakash (1991) – The Hon’ble Supreme Court held that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses.
2. Suresh Babu vs Leela (2006) – In this case, the husband converts himself into Muslim and marries another woman. Here the wife Leela filed a case and demanded the divorce on the ground of conversion without her consent and cruelty.
3.Vinita Saxena vs Pankaj Pandit (2006)- In this case, the petitioner filed a case to get the divorce from the respondent on the ground that the respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to know these after her marriage. Here, the court grants the divorce on the ground of insanity of husband.
4. Jeet Singh v. the State of U.P. (1992)- the court explained judicial separation as “There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree, however, does not sever or dissolve the marriage.
5. Swapna Ghose v. Sadanand Ghose (1988) – In this case, the wife found her husband with other girl lying on the same bed and the neighbour also confirmed that the husband has committed an offence. Here the wife gets the divorce.
Important Legal Maxims
1. “Audi alteram partem”- This maxim means “to hear the other side”. This maxim refers to the substantive Due Process concept that a person cannot be judged fairly unless the facts and arguments for and against the person have been heard by the decision-maker.
2. “Ab initio” – From the very beginning of the law/ act it was bad. Such a term is used in reference to the law, agreements, a deed executed between parties, marriage, etc. If something is said to be void ab initio, the thing was never created or void, to begin with.
Void marriages are void ab initio which means that in the eye of the law that marriage has never come into being.
3. “A mensa et thoro”– The literal meaning of the maxim a mensa et thoro is from bed and board. It means legal separation of husband and wife which means they aren’t legally obligated towards each other but their marriage has not dissolved. The main objective of this maxim is to give space to the couple so that they can live separately and not to dissolve the marriage.
4. “Vinculo Matrimonii”– The literal meaning of this maxim is from the bond of matrimony which means complete or absolute divorce. The parties are not bound to perform any obligation towards each other which arose from their marriage. Basically, it applies to those marriages which are voidable or void ab initio i.e void from the beginning and applies in the cases of bigamy and marriages which are not permitted by law.
Other Important Concepts
Annulment of marriage
An annulment means an official announcement that ends the existence of the marriage. It is a process in which the marriage is declared null and void due to some reasonable causes and these causes include that the legal requirements were not met at the time of marriage. When certain legal requirements are not met at the time of the marriage then the marriage is not considered a valid marriage. When the decree of annulment is passed by the Court then the further duties or obligations towards each other also end with the non-existence of the marriage. Provisions of annulment under different personal laws.
Points to Remember
1. Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there was no provision for divorce.
2. With the legislation and enactment of various theories of divorce, spouses are now more independent and self-reliant. They are prepared to live happily separately rather than stay united while unhappy.
3. Divorce by mutual consent is the best way of divorce as the parties do not have to bad mouth each other in the courtroom and both parties can mutually settle on all issues and end their marriage.
4. In India, the Fault theory works in the matter of divorce. Under this theory, marriage can be ended when one of the spouses is responsible or liable for the offense under matrimonial offenses. The innocent spouse can seek the remedy of divorce.
5. Under the Hindu Marriage Act, the basic grounds on which Hindu women can seek the remedy of divorce are Adultery, Desertion, Conversion, Leprosy, Cruelty, etc. But many philosophers criticize the concept of Divorce.
6. The Hindu married women can also apply for maintenance under section 125 of the Criminal procedure code. So the spouse who is innocent can approach the court and can seek the remedy of divorce.
