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.