The word divorce or theories of divorce can’t be traced back to ancient Indian society. In primitive society, marriage was considered sacred bondage and it can never be broken down. But with changing times and dynamic society, the word divorce came into the picture which puts an end to a marriage. The provision related to divorce and its theories were introduced by Hindu Marriage Act, 1955. Section 13(1) of the act lays down nine fault grounds of divorce. These grounds are- Adultery, Desertion, Cruelty, Insanity, Leprosy, Venereal Disease, others such as conversion or renunciation of the world.
THE FIVE THEORIES
There are five theories of divorce- fault theory, mutual consent theory, irretrievable breakdown of marriage theory, frustration theory, indissolubility theory. The first one is fault theory or the offences theory or the guilt theory, under this a marriage is dissolved by an innocent party if the other party has committed any matrimonial offence. In this theory, it is necessary to have a guilty and an innocent party, and only the innocent party can seek remedy from the court of law in the form of divorce. The ground of this theory is covered under Section 13(1) of the Hindu Marriage Act, 1955 such as Adultery, Cruelty, etc. One of the drawbacks of this theory is that if both parties to the marriage are guilty irrespective of the degree of guilt, no remedy lies thereafter.
Then another theory of divorce is mutual consent. The rationale behind the theory of divorce is that when two people are competing with each other, love each other, want to stay with each other they end up marrying each other; in the same way, they are allowed to move out of the relationship of their marriage with their free will. This theory is even criticized on the ground that this may lead to hasty divorce and parties would dissolve their marriage and this might promote immorality. The parties may dissolve their marriage in case of even slight incompatibility. Section 13B of the Hindu Marriage Act, 1955 talks about mutual consent divorce. There exist two pre-requisites for mutual divorce; one is the maintenance of the other spouse and secondly, the custody of a child should be resolved earlier, meaning who will be taking the custody of the child. It also requires that both parties to the marriage must be living separately for the last year.
The third theory relates to another theory i.e. irretrievable breakdown of the marriage. The breakdown of marriage is defined as such that the marriage has been broken down completely and now there is no chance of restoration. There exists no reasonable probability for spouses again to start living together as husband and wife. Section 13 (a) of the Hindu Marriage Act, 1955 deals with the breakdown theory of marriage where every chance and scope of reconciliation and repairment ceases to exist.
In the case of Naveen Kohli V. Neelu Kohli, parties to the marriage i.e. husband and wife are putting innumerable civil and criminal charges against each other, both characters were assassinating each other with any evidence to prove such allegations. And after analyzing the whole situation court declared that there exists no chance of reconciliation and repairment in this marriage and therefore court gets satisfied and passed the decree of irretrievable breakdown divorce.
The other theory of divorce is the frustration theory. The grounds of frustration theory include- if one spouse is dead, if he is of unsound mind for a longer time, or marriage is not being consummated, etc. For instance, two persons have married and now it’s been 15 years of their marriage. But the husband is now not known for 8 years and the husband’s relatives are not even around him. Here, the female spouse can get the decree of divorce on the ground of frustration theory.
Indissolubility of marriage theory is the last theory of divorce. According to Manu, marriage can’t be broken in any manner. Marriage is the bond of seven births. But now this theory has lost its utility and now any spouse can get the decree of divorce on valid ground.
AVAILABLE DEFENCES IN DIVORCE THEORIES
There are primarily five defences available in case of divorce relating to these theories. The first one is the doctrine of recrimination that provides a defence for the guilty party to plead that the other party is also involved in some sort of offence. For example – If the husband was involved in adultery and even the wife was involved in adultery with another person. So here wife is not innocent and therefore is not entitled to get a decree of divorce.
The other defence is a defence of condonation. It means expressed or implied forgiveness. For ex- if A was guilty of adultery and to save the marriage if B, the wife condoned her husband A from the charge of Adultery. Now if the wife wants to file a petition against him n the grounds of adultery after 5 years, then she can’t unless special reasons are given by him to the court.
The third defence available is connivance, which means willingly allowing another spouse to be secretly involved in any immoral act. For instance – if the wife knows that her husband is involved in an act of adultery but then also she is not questioning him which implies she is giving her willingness. And after a certain period, if she brings a petition against her husband then she will have to produce a specific reason to get the decree of a divorcee.
The fourth defence available is reconciliation. here the court provides a counsellor who will help both parties to the marriage to repair their bonding and save their marriage. The last defence available is the defence of provocation. If one spouse is provoking another to commit any kind of physical mental violence and then making it a ground divorce, then the court won’t entertain such petition for divorce here the petitioner has provoked the accused to commit any violence on him or her.
As we know that society is dynamic, and it keeps on changing. This dynamic nature of society helped girls, women to move out of their not manageable marriage and get a decree of divorce. Previously the concept of the decree of divorce was not accepted and a girl was bound to adjust and compromise. But with time the concept of divorce came and thereby these theories of divorce evolved to meet the changing nature of society. On one hand, divorce leads to separation but on the other, it gives new meaning to life to the spouses.
Author(s) Name: Shruti Saha (Chanakya National Law University, Patna)
Hindu Marriage Act 1955, s 13(1)
Hindu Marriage Act 1955, s 13B
Hindu Marriage Act 1955, s 13(a)
Naveen Kohli v. Neelu Kohli , SC 1675