THEORIES OF DIVORCE

SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS FOT THE AWARD OF THE DEGREE
OF
MASTER OF LAWS
(LL.M.)

SUPERVISED BY: SUBMITTED BY:

PROF. NITIN SANSANWAL HUSANPREETMAHIO
PANJAB UNIVERSITY,CHANDIGARH 24122
SEMESTER-2
INTRODUCTION
Marriage is a significant institution that not only unites two people but
also interconnects their families, reflecting a commitment that extends
beyond mere companionship.
Traditionally, in many societies, including Hindu communities, marriage
was viewed as a sacred and permanent bond with implications
extending beyond this life. The concept of marriage in Hindu culture has
historically been considered almost unbreakable, reflecting beliefs
about the sanctity of marital vows and their connection to spiritual and
societal order.
This traditional view contributed to a strong stigma against divorce,
making it a rare occurrence. However, the ongoing changes in society
and evolving needs led to the introduction of the Hindu Marriage Act of
1955 (hereinafter referred to as the Act). The Act marked a significant
shift by legally recognizing the possibility of separation between the
married couple by a decree of divorce and providing a structured
process for it. The Act was passed to address the realities of modern life
problems in relation to marriage while still respecting cultural traditions
and reflecting the dynamic nature of societal norms and legal
frameworks. The introduction of the provisions relating to divorce in the
Act was a crucial step towards organizing legal practices with present-
day social needs while trying to navigate the thin line of balance
between tradition and change.
Under the Act, Section 13 is amongst the most revolutionary provisions.
Since its introduction in 1955, it has been amended; instead, it has been
liberalized several times to adapt to the evolving needs of society.
From divorce under exceptional circumstances to divorce by consent,
Indian society is now leading towards divorce on irretrievable
breakdown of the marriage.

CONCEPT OF DIVORCE
The term "divorce" originates from the Latin word divortium, which
means "to turn aside" or "to separate." It refers to the legal termination
of a marital bond. Although divorce is not specifically defined in
statutory provisions, it can be described as the legal dissolution of the
marital ties established by marriage. All legal systems recognize that
public policy, moral standards, and societal interests necessitate that
marital relations be protected with comprehensive safeguards, and that
dissolution of marriage should only occur in the manner and for the
reasons specified by law. A divorce is also a seven lettered word that
separates the united couple at their own wish with their own consent.
Thus, divorce can be considered a means to break a marriage that
happens not just between two individuals but also between two
families.

DIVORCE THEORIES
The various types of divorce theories are as follows:
 1. Divorce at Will theory
According to this type of theory, a person may choose to divorce their
spouse at their own free will. However, this concept is not recognized
under Hindu law or the Act. In contrast, Muslim law does acknowledge
this approach, permitting a husband to divorce his wife at his discretion
without requiring consultation. Offence or Guilt or Fault theory
The fault theory of divorce is also known as the offence theory or guilt
theory. It provides that dissolution of marriage through divorce can take
place in case one party commits a 'matrimonial offence' against the
other party, who is deemed innocent. Offence theory shows a clear
comparison between the guilty and innocent parties, with
only the innocent party being eligible to seek a divorce. In case both the
husband and wife are at fault, neither of them could take recourse
under thistheory.
'Matrimonial offences' recognized under the
Act are as follows :
• Desertion:
Desertion is the negation of living together, which is the essence of
matrimony; it is unjustifiable; it constitutes a ground for matrimonial
relief. The essence of the dissertation lies in the
forsaking or abandonment of one of the spouses by the other. It is a
total repudiation of the obligations of marriage.
Divorce may be granted if the respondent has deserted the petitioner
for a continuous period of not less than two years
immediately preceding the presentation of the petition.
• Cruelty: To constitute cruelty in the matrimonial law, the conduct
complained of should be "grave and weighty" so as to come to the
conclusion that the petitioner cannot be reasonably expected to live
with the other spouse. It must be something more than the "ordinary
wear and tear of married life. "
• Rape:
Rape is defined as sexual intercourse or other forms of sexual
penetration carried out by a perpetrator without the victim's consent. If
the husband has been found guilty of the offence of rape, it constitutes
a matrimonial offence.
• Sodomy:
The husband has since the solemnization of marriage been guilty of
sodomy. Sodomy is the offence of forcing another person to perform
oral or anal sex.
• Bestiality:
In case the husband has been found guilty of bestiality, it constitutes a
matrimonial offence. Bestiality is the offence of making sexual relations
between a human being and a lower animal.
• Failing to follow the court's order for providing maintenance to wife:
In a suit under Section 18 of the Hindu Adoption and Maintenance Act,
1956 or in a proceeding under Section 125 of the Code of Criminal
Procedure, 1973, a decree or order has been passed against the
husband awarding maintenance to wife, and since the passing of such a
decree or order, cohabitation between the parties has not been
resumed for one year or upwards.
• Getting married to someone who does not come under the legal age
to get married:
The wife's marriage (whether consummated or not) was solemnised
before she attained the age of fifteen years and she repudiated the
marriage after attaining the age but before attaining the age of eighteen
years.

2. Frustration of marriage theory

In the absence of any matrimonial offence if the marriage is frustrated,
it is when one of the spouses is suffering from any physical ailment,
mental unsoundness of mind, or change of religion, or has renounced
the world or has not been known for a very long period.
In this case, the other spouse has the right to put an end to the
marriage by getting divorce.
This theory has been followed by the Act as follows:
• Incurably of unsound mind:
Section 13(1)(iii) provides that the petitioner has to establish that the
respondent has been incurably of unsound mind or has been suffering
continuously from mental disorder of such a kind and to such an extent
that the petitioner cannot reasonably be expected to live with the
respondent.
• Venereal disease in a communicable form:
Section 13(1)(v) provides for venereal disease in a communicable form.
A "communicable disease" is one that passes from one person to
another through touch, using each other's objects and also through
intimate physical relationships. In order to succeed on this ground, the
petitioner must establish, along with medical evidence, that the
venereal disease that the respondent is suffering from is communicable.
• Renouncing the world by entering any religious order:
Section 13(1)(vi) has been made a ground of dissolution of marriage by
a decree of divorce for the husband or wife if the other party to the
marriage has renounced the world. In a petition for divorce under this
clause, the petitioner has to satisfy firstly that the respondent has
entered any religious order and secondly that he has renounced the
world.

3. Mutual consent theory

This type of divorce theory is different from other theories of divorce.
Divorce by mutual consent means that the case is not like usual ones,
wherein one party petitions against the other party for divorce and the
other party resists the same. Here, both parties file a joint petition with
the court for divorce between them. They have an intent to get rid of
each other and they part amicably for mutual good.
If a divorce is not granted, their lives would be severely impacted,
leading to moral decline. There are unproven objections against this
type of divorce that the consent of the unwilling party might be
obtained by force, fraud, or some other tactic, and this is a divorce by
collusion. While collusion involves consent, not every instance of
consent amounts to collusion. Collusion refers to a secret agreement
done between two or more persons that results in
achieving a fraudulent outcome. This secret agreement is done to
accomplish a lawful goal through a mode of deception. Collusion differs
from compulsion because, in the latter, one party imposes their will on
another.
Divorce by mutual consent was added by the Marriage Act of 1976. This
amendment has brought about a shift from the traditional practices of
Hindu marriage as an unbreakable bond, as outlined in the Smritis, to a
more consensual union under the Act. This theory has faced criticism
for potentially encouraging immorality, as it might lead to premature
divorces. It is argued by the critics that divorce by mutual consent
encourages parties to bring their marriage to an end over relatively
minor disagreements.
Essentials of Section 13B of the Act of 1955
Section 13B(1) requires that a petition for divorce by mutual consent be
submitted jointly by both parties. Similarly, Section 13B(2) states that
both parties to the suit must jointly request the court set a date for a
hearing on the divorce petition. The following additional requirements
must also be met:
• The parties must have lived separately for at least an year;
• They must have been unable to reconcile and cohabit together;
• They must have mutually agreed to dissolve the marriage;
• A minimum period of six months must have passed from the date of
filing the petition.
• They must jointly request the court issue a decree before the expiry of
eighteen months from the date of filing the petition.
• The divorce must be sought with the mutual consent of both parties
to the suit.
. It must be free from coercion, fraud, or undue influence.

4. Irretrievable breakdown of marriage theory

Marriage, as mentioned a number of times, is a lifelong bond between
husband and wife, but there are instances when the relationship may
worsen to the point where separation is required. The theory of
irretrievable breakdown of marriage situations arises when the marital
relationship between the spouses has come to an end because of
circumstances
that make reconciliation unlikely. At this point, it becomes impossible
for the husband and wife to continue to live together. When a
marriage has collapsed to the level that there are no chances of
repairing the marriage, it
should be brought to an end without looking into the causes of the
breakdown or assigning
blame to either of the parties or both of them.
In these situations, the need to separate the spouses takes precedence
over the traditional values of love, affection, and loyalty that ideally
should exist between spouses. The principle underlying the irretrievable
breakdown theory of marriage is that if one party no longer wishes to
remain in the marriage, it should be dissolved. The aim is to end the
relationship with maximum fairness and minimal bitterness, pain, and
humiliation.
The Hon'ble Kerala High Court in the case of
A. Yousuf Rawther vs. Sowramma (1971) stated in the context of this
theory that "while
there is no rose which has no thorns but if what you hold is all thorns
and no rose, better throw it away. The ground for divorce is not conjugal
guilt but breakdown of marriage."
In some countries, additional grounds such as "incompatibility of
temperament" and "profound and lasting disruption" have been
introduced to support divorce claims based on the breakdown theory.
The court has the responsibility to check whether a marriage has
actually broken down or not. Some of the cases involve the legislature
setting certain criteria for assessing the breakdown of a marriage. If, in
the opinion of the court, those criteria are met, then a divorce can be
granted. For instance, Section 13(1A)(i) of the Act requires the
petitioner to show that they have been living separately from the
respondent for at least one year or more after a decree for judicial
separation or restitution of conjugal rights in a proceeding involving
both parties.
Merits of Irretrievable breakdown of marriage theory
If the individuals, tied within the matrimonial bond, feel that the
marriage is not working out, then mutually, it may give the right to both
of them to stay and live life separately and happily without any
botheration on either part. As there is no reasonable probability of
staying together, it gives both of them the opportunity to start their
lives as per their own wishes, both independently and separately.

Demerits of Irretrievable breakdown of marriage theory

Irretrievable breakdown of the marriage may become an excuse where
the married couples may always feel that little arguments are
unreasonable as a result of which there is no probability of them
staying together. Therefore, in my opinion, the process of divorce
following the irretrievable breakdown of marriage theory is not
justified.
• It may also result from sudden arbitrary unreasonable decisions.
• It sometimes happens based on temporary emotions such as anger,
humiliation, etc. which a couple may go through during the heat of the
argument.
• It fosters no communication procedure between the partners.
• It is not just the breakdown of marriage; it is also the wreckage of two
united families at the time of marriage.

GROUNDS:
Non-resumption of cohabitation after the decree of judicial
separation: Section 13 (1A)(i) of the Act of 1955 provides that if, after
the passing of the decree of judicial separation, cohabitation between
the husband and wife has not been resumed for a
period of one year or longer, divorce may be prayed for by either of the
parties.
Cohabitation means to dwell together as husband and wife. Mere going
together with them on some occasions to temples or the places of
friends does not amount to cohabitation. The decree of judicial
separation might have been passed under Section 13(1A) at the
discretion of the court in place of the decree of divorce prayed for by
the petitioner.
Failure to adhere to the decree of restitution of conjugal rights
Section 13 (1A)(ii) of the Act provides that if, after the passing of the
decree of restitution of conjugal rights, there has been no restitution of
conjugal rights for a period of one year or more, either of the parties
may file a petition for divorce on this ground. Restitution of conjugal
rights means that cohabitation must be resumed by the parties.
The husband and wife should act as husband and wife towards each
other. A promise to join the conjugal relationship without in fact joining
on a fake excuse of ill health is held to be non-restitution of conjugal
rights. Sexual intercourse can be a significant or compelling evidence of
cohabitation, yet there may be cohabitation even when no sexual
intercourse has taken place for a reasonable cause.
The term "passing of a decree" in Sections 13(1A)(i) and (ii) of the Act of
1955 refers to the issuance of a judgement, not merely the formal
drafting of the decree. In the case of
Smt. Bimla Devi D/O Bakhtawar Singh [Link] Raj S/O
Dasondhi Ram (1976),
the Hon'ble Punjab and Haryana High Court held that if an appeal is
made against the decree passed by the lower court under Section 9 of
the Act and its execution is not stayed, the period of one year is
calculated from the date the decree was passed. The ongoing appeal
does not affect the one-year time frame.
Section 13(1A) does not grant an absolute right but is subject to the
limitations in Section 23(1)(a) of the Act. Its purpose is to extend the
right to apply for divorce, not to guarantee that a divorce petition will
be granted solely based on the absence of cohabitation or restitution
for the required period.
Special grounds for divorce for wives
Section 13(2) of the Act of 1955 provides the following four additional
grounds of dissolution of marriage, which are available only to a wife, in
addition to the other grounds provided by Sections 13(1) and (1A):
Husband's bigamy
Before the Act of 1955 came into force, Hindu law had no limit to the
number of wives a man could have at a time. The Act of 1955
has made bigamy an offence under Sections 5 and 18. Section 13(2)(i)
of the said Act says either of the co-wives of a man can seek divorce,
provided that:
• Both wives were married to him before the
commencement of the said Act;
• Both wives are alive when a petition for divorce is filed, and'
• Both the above-mentioned marriages legally exist at the same time.
Rape, sodomy or bestiality
Section 13(2)(ii) of the Act stipulates that a wife can seek divorce on the
grounds that, since the marriage, her husband has been guilty of rape,
sodomy, or bestiality. These offences are also criminaliZed under the
Bharatiya Nyaya Sanhita, 2023, which prescribes penalties for them. It is
not required for the husband to have been convicted of these crimes in
a criminal court; the key factor is that the offence occurred after the
marriage of the petitioner. The three matrimonial offences are defined
as follows:
Rape: Rape is non-consensual sexual intercourse by a man with a
woman. Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita, 2023
provides that a man can be punished for raping his own wife if she is
under the age of eighteen years. In such cases of marital rape, the wife
may file a petition for divorce on the grounds of rape.
• Sodomy: Sodomy is defined as an anal intercourse between a man
and his wife, another woman, or another man. The consent of the
victim or age is not a relevant criteria to be determined in these cases
to convict the accused.
• Bestiality: Bestiality involves sexual intercourse with an animal and is
classified as an unnatural offense.
Non-cohabitation after maintenance order
Section 13(2)(iii) of the Act of 1955 states that if a decree or order has
been made requiring the husband to provide maintenance to the wife,
and
1. she has been living separately; and
2. cohabitation has not resumed for a year or more since the decree or
order, the wife is entitled to file a petition for divorce on these grounds.
A decree or order of separate residence and maintenance can be
obtained, under Section 18 of the Hindu Adoptions and Maintenance
Act, 1956 and under Section 144 of the Bharatiya Nagrik Suraksha
Sanhita, 2023. The law therefore gives such a wife, who obtains a
decree or order, a right to seek divorce if her husband does not resume
cohabitation within one year from the date of decree or order.

Repudiation of marriage (option of puberty)

Section 13(2)(iv) of the said Act confers a right on girls who are married
before attaining the age of fifteen years, a right of repudiation.
Consummation of marriage is immaterial here. Under this clause, a wife
can get divorced if:
• At the time of her marriage, she was below the age of fifteen years;
and
• After that, but before attaining the age of eighteen years, she
repudiated the marriage.
No procedure is laid down under this section or the Act for repudiation
of marriage. The fact of repudiation has to be proved,
therefore, by the wife.
Smt. Sureshta Devi vs. Om Prakash (1991)
The question before the Hon'ble Supreme Court in this case arose
whether either party can withdraw their consent to the divorce petition
at any time before the decree is issued. With differing opinions among
various High Courts on this issue, the Supreme Court stated that Section
13B(2) of the Act puts a mandate upon the court to hear both parties.
If either party later withdraws their consent or expresses unwillingness
to proceed with the divorce, the court cannot grant a decree of divorce
by mutual consent. Issuing a decree based solely on the initial petition
would compromise the principle of mutual consent.
Mutual consent is vital for the court to issue a decree under Section
13B, and it must be upheld throughout the process. Maintaining mutual
consent is essential for the court to finalise a divorce decree.

CONCLUSION
Each and every culture, religion, personal laws, codified laws amuses
the society and its upbringing. The change in Hindu society and
acceptance of the change in the dynamic society is a matter of immense
pleasure and pride being an Indian. Previously the divorce concept was
not accepted and it was considered that a girl is bound to adjust and
compromise. But through the birth of the Act, gradually the concept of
divorce and therefore the relevant provision as per the needs of the
dynamic society, was also established. Hence staying in an abusive
marriage is a curtailment of the basic fundamental rights like Right to
live peacefully, freedom of speech and expression, etc. Lastly it is only
expected from the people that they don't misuse these powers given by
the law to them rather they should uphold the laws and human
emotions of love, loyalty,
trust and kindness.