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THEORIES OF DIVORCE WITH REFERENCE TO STATUTORY PROVISIONS IN PERSONAL LAWS

INTRODUCTION

Marriage was traditionally viewed as an unbreakable institution in India. In the beginning, divorce was an unfamiliar notion in India since people there held the view that marriages are sacred unions blessed with sanctity by the Almighty God, and that to end a marriage would be to violate that sanctity. The definition of marriage has undergone numerous, major revisions over time. The institution of marriage is no longer fully irreversible due to the winds of change. At first, divorces based on marital strife and the lack of essentials needed to keep a marriage alive were permissible. But soon it became clear that marriage is, after all, a human institution—a union created by the free act of will of the partners, who are responsible but fallible human beings prone to mistakes. As a result, the idea of divorce by permission of the parties emerged. Couples have the legal right to end their marriage if they are having trouble leading fulfilling lives, provided certain conditions are met by mutual consent.

FAULT THEORY OF DIVORCE:

In a culture where marriages and divorces were controlled by the personal religious laws of the party, the ‘fault or guilt’ theory of divorce predominated until contemporary times. In every faith, marriage was accorded the most heavenly and sacred significance, and it was thought that marriage connections were created in heaven. As time went on, the fault hypothesis was advanced. The fault theory, which held that divorce is a negative thing for society and that it is an act of an individual attempting to break the divine bond of marriage, first came into existence in the 19th century.[1]  According to this theory, society could only accept the dissolution of a marriage on the grounds of the commission of some sin, some heinous offence against the divine bond of marriage, or the omission of some very important rituals of marriage by one of the parties to a marriage. It states that if one spouse commits a marital offence, the marriage may end. The guilty theory, which states that the court may dissolve a marriage if it is established that one spouse committed a marital offence, has roots in the fault theory.[2]

The presence of fault theory can be witnessed in the grounds of divorce that various personal and uniform laws provide to an individual. The Marriage Laws (Amendment) Act, 1976 which amended the Hindu Marriage Act, 1955 laid down nine grounds viz. “adultery, cruelty, desertion, conversion, incurable insanity or mental disorder, virulent and incurable leprosy, venereal disease in a communicable form, renunciation of world and presumption of death and four additional grounds on which wife alone can sue for divorce.[3] According to Muslim law, women are permitted to dissolve their marriages. Section 2 of the Dissolution of Muslim Marriages Act, 1939, governs these rules and recognises identical grounds for divorce as aforementioned in different statutes.[4]  The Parsi Marriage and Divorce Act 1936 which was later amended in the year 1988, under section 32 has identical grounds for divorce as in The Special Marriage Act, 1954.[5]  All these laws and the amendments go on to prove that the theory of fault in divorce was prevalent in them.

CONSENT THEORY OF DIVORCE:

This idea contends that a pair chooses divorce of their own free choice. By this view, spouses can end their marriage amicably and without any conflict. The “husband” and “wife” may jointly file a “petition for divorce.” They are free to end their marriage at any moment. This view holds that the primary basis for divorce is the mutual consent of the parties to end the marriage, which necessitates their free and uncompelled assent.[6] Divorce by mutual consent is one of the reasons that Indian courts have established for ending a marriage when it becomes difficult for the parties to fulfil their duties or continue to be married. A marriage can be dissolved via mutual consent, which is one of the most respectful methods to do so. When it becomes clear that the wife and the husband cannot cohabitate, they may mutually decide to end their marriage with the use of this clause.[7]

Section 13(B) of the Hindu Marriage Act 1955[8], section 28 of the Special Marriage Act 1954[9], Section 10-A of the Divorce Act 1869[10], and section 32B of the Parsi Marriage and Divorce Act 1936[11] have similar provisions in relation to divorce by Mutual Consent.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE THEORY OF DIVORCE:

With the growth of society and the socioeconomic situations of individuals, it was argued that marriages in which couples did not get along could not be dissolved just because one of the spouses was at fault and that such marriages were harming the lives of both spouses. This resulted in the no-fault divorce hypothesis being proposed. Contrary to the fault theory, which mandated that one spouse establish blame for the other spouse’s breach of a marriage obligation, the no-fault theory does not call for one spouse to establish fault. The no-fault theory is based on the idea that if two people marry each other voluntarily and willingly with their free consent, they should be able to dissolve the same marriage voluntarily if they find they cannot reconcile their differences and return to a normal, wise married partnership. The most attributable and fancy term that is used to describe such a situation is the ‘irretrievable breakdown of marriage’. Irretrievable Breakdown of Marriage is generally defined in legal terms as: “The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.”[12] In simple words, it means that the couple can no longer live together as husband and wife and that their marriage cannot be restored. It is in the general interest of the spouses to dissolve such a marriage by taking the mutual consent of the parties. This would not only take both spouses out of a marriage that is falling apart but will also help them live a peaceful, happy and independent life. This also goes on to assert a successful and happy cannot take place when things are not going well among spouses and such a situation defeats the very purpose of marriage. The term “no-fault divorce” is to be understood in the reference to a type of divorce or dissolution of marriage where the party seeking divorce is not required to prove guilt or matrimonial offence on the side of the other spouse. The most common explanation mentioned is “irreconcilable disagreements” or an “irretrievable collapse of the marriage,” which essentially indicates that the spouses do not get along and the result of which is that the sanctity of marriage is so hampered that the marital connection between the parties cannot be repaired and that only divorce would ensure peace and happiness to the parties. Since the court views the resistance as an irreconcilable difference, the spouse cannot oppose the other spouse’s request for a no-fault divorce. In this case, the parties need not prove the fault on the part of the other party, rather they need to prove that the martial relationship shared by them is so soured that it cannot be repaired and that it is by granting divorce that the parties would be able to move on and continue a peaceful and happy life.[13]  The No-fault divorce theory is founded on the idea that marriages might fail not because one spouse is at fault or guilty, but because the partners’ temperaments are incompatible.

CONCLUSION

We learned about various theories about divorce, Once it was a sin to think about divorce whether you are happy in the marriage or not but since society develops with the pace of technology and the democratic idea of governance, the various rights and concepts of freedom evolve with time. Today people can take divorce even when there is no fault of either party, just because their idea of living together is not working out. This gives fresh air to the concept of marriage as a whole and puts the idea of the ‘union of souls’ to its reality. ‘When any soul is not happy with anyone, where are the union?’

Author(s) Name: Arnav Ashtikar (Symbiosis Law School, Nagpur)

References:

[1] Hitabhilash Mohanty & Janice Ayarzagoitia, ‘The Philosophy of Divorce in Indian Legal Context: A Study of Theories of Divorce’ (SSRN, 09 November 2020) <https://ssrn.com/abstract=3727641>   assessed 09 December 2022. 

[2] Dr Roopa Traisa, ‘Theories of Divorce under Hindu Family Law’(2019) 06 JETIR 157, 157

[3] Hindu Marriage Act 1955, s 13(1), 13(1-A) and 13(2)

[4] Dissolution of Muslim Marriages Act 1939, s 2

[5] Parsi Marriage and Divorce Act 1936, s 31 and 32

[6] Mohanty (n 3)

[7] Mehak Mahapatra & Preet Kaur Kalra, ‘Critical Analysis of Divorce by Mutual Consent’ (2021) 04 INTL J L MGMT & HUMAN. 351, 352

[8] Hindu Marriage Act 1955, s 13(B)

[9] Special Marriage Act 1954, s 28

[10] Divorce Act 1869, s 10-A

[11] Parsi Marriage and Divorce Act 1936, s 32B

[12] Navneet Kaur Chahal & Nasrullah Rezaie, ‘Irretrievable Breakdown of Marriage (IRB)’ (2022) 10 IJCRT 112, 113

[13] Niyati Singh, ‘Irretrievable Breakdown of Marriage: A Critical Study’ (2021) 17 PEN ACCLAIMS01, 03