FAMILY LAW -I

UNIT 1 LECTURE 5

GUNJAN AGRAHARI
Assistant Professor Law DME, Noida

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 OBJECTIVE & OUTCOME

Objective: The objective of this lecture is to apprise the

students with the laws relating to divorce, grounds
and forms of divorce.

• Outcome: Student will be made aware regarding

divorce, its kind and grounds when it becomes
inevitable to protect the institution of marriage.

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 TEXT BOOKS AND REFERENCES
• Text Books:
• 1. Paras Diwan, Modern Hindu Law, Allahabad Law
Agency, 1993
• 2. Mulla, Principles of Hindu Law, Lexis Nexis, 2007
• References:
• 1. Kusum, Marriage and Divorce Law Manual, Universal
Law Publishing Co. Pvt. Ltd.,2000
• 2. B.M. Gandhi, Family Law, Eastern Book Company, 2012
• 3. Paras Diwan – Family Law, Allahabad Law Agency, 2001

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 Unit-I: Hindu Marriage and Dissolution
(Lectures -10)

• a. Institution of Marriage under Hindu Law

• i. Evolution and Concept of the Institution of

Marriage

• ii. Forms, Validity and Voidability of Marriage

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• b. Matrimonial Remedies

• i. Restitution of Conjugal Rights S. 9, HMA, 1955

• ii. Judicial Separation S. 10, HMA, 1955

• iii. Dissolution of Marriage : Theories, Forms of Divorce,

Grounds S. 13, HMA, 1955

• v. Divorce by Mutual Consent S. 13-B, HMA, 1955

• v. Irretrievable Breakdown as a Ground for Dissolution S.

13 (1-A) HMA, 1955

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 INTRODUCTION

• Divorce means the dissolution of marriage by a

competent court.

• This concept was non-existent under ancient law due to

the sacramental nature of marriage but was introduced
under the Hindu Marriage Act, 1955.

• We will study the different theories of divorce- fault,

mutual consent, breakdown; and also the grounds for
divorce under this Act.
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• Earlier divorce was unknown to general Hindu law as
marriage was regarded as an indissoluble union of the
husband and wife.

• Manu declared that a wife cannot be released by her

husband either by sale or by abandonment, implying
that the marital tie cannot be severed in any way.

• Although Hindu law does not contemplate divorce

yet it has been held that where it is recognized as an
established custom it would have the force of law.

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• ANCIENT FORMS OF DIVORCE BY MUTUAL
CONSENT
• According to Kautilya’s Arthashatra, marriage might be
dissolved by mutual consent in the case of the
unapproved form of marriage.
• Unapproved marriage forms
• Asura form of marriage: In the Asura form of marriage,
the bride was given to the husband in payment of a
consideration called ‘sulka” or bride-price. When the
bridegroom, having given its much wealth as he can
afford to the father or paternal kinsmen and to the damsel
herself, takes her voluntarily as his bride ‘ it Is called the
Asura Marriage.

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• The Asura form of marriage was prevalent in ancient India
when the bride had a value or she was construed to be an
article of merchandise.

• He who wished to procure her had to pay for her. Thus this
form of marriage is based on an agreement between two
families as a commercial transaction.

• Gandharav form of marriage: The Gandharva form of

marriage is the union of a man and a woman by mutual
consent. According to Manu “The voluntary connection of
a maiden and a man is to be known as a Gandharva union
which arises from lust”.

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• Thus “the reciprocal connection of a youth and a
damsel with mutual desire is the marriage
denominated “Gandharva”, contractual for the
purpose of amorous embraces and proceeding from
sensual inclination.”

• “To some extent this form of marriage appears to be

like “Gretna Green” marriages.” “Gretna Green”
marriages are the run-away marriages by persons
governed by the English Law at “Gretna Green” or
elsewhere in Scotland to evade the provision of that
law against ill-advised and clandestine marriages.

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• It is believed that this form of marriage is called ‘Gandtarva’
because of its wide practice by the tribe called ‘Gandharva’
living on the slopes of the Himalayas.

• A minor girl is incompetent to contract this ‘Gandharava’

form of marriage as she is incapable of giving her consent.

• This form of marriage indicates that the parties must be

adults so that they will be capable of sexual enjoyment. This
form of marriage was prevalent among the Rajbanshis and in
Manipur.

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• Gradually this form of marriage declined due to the
child- marriage practice in the Hindu society. But later
on, along with the introduction of post-puberty marriage,
it has been practiced in the name of love marriage.

• Rakshasa form of marriage:

• In simple terms the ‘Rakshasa’ form of marriage may be
described as marriage by capture, resembling the right of
a victor to the person of the captive in war.

• Manu holds, “The seizure of a maiden by force from her

house while she weeps and calls for assistance.

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• after her kinsmen and friends have been slain in battle or
wounded, and their houses broken open, is the marriage styled
Rakshasa”.

• This form of marriage is called Rakshasa because ‘Rakshasas

(demons) are known from the legends to have been addicted to
cruelty and forceful method.

• Traditionally, this form was allowed to the Kshatriyas or military

classes. It is chiefly found either as an incident of war or as a
method of procuring a wife when it is difficult or inconvenient to
get in ordinary manner.”

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• In the modern Indian society this Rakshasa form of
marriage has been banned, and its practice is a
punishable offence vide section 366 of IPC. for
 Kidnapping, abducting or inducing woman to compel
her marriage, etc.

• (8) ‘Paishacha’ form of marriage:

• It is the worst form of marriage among the Hindus.
When the lover secretly embraces the damsel, either
sleeping of flushed with strong liqueur, or disordered
in her intellect, that sinful marriage, called paishacha
is the eighth and the lowest form.
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• This form of marriage was the most abominable and
reprehensible, originating from a sort of rape
committed by man upon a damsel either when asleep
or when made drunk by administering intoxicating
drug.
• The difference between the ‘Paishacha’ and the
‘Rakshasa’ forms of marriage lies in the fact that
whereas in the latter there is the scope of display of
bravery and force at the same time, in the former the
maiden is taken by deception and fraud.
• However, in the modern socio-cultural matrix, this
form of marriage is a punishable offence under the
I.P.C. as rape.
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• The dominion of the father is completely undermined in the
‘Gandharva’, ‘Paishacha’ and ‘Rakshasa’ forms of marriage.

• But, Manu does not believe in the discontinuance of

marriage. He declares” let mutual fidelity continue till death;
this, in brief, may be understood to be the highest dharma of
the husband and wife.”

• However, this changed when divorce was introduced in the

Hindu Marriage Act, 1955.

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 What is Divorce under Hindu Law
• Divorce means putting an end to the marriage by
dissolution of marital relations.

• It is the legal dissolution of a marriage by a court or any

competent court. After divorce parties can no longer be
husband and wife.

• In the modern days divorce is allowed for the spouses if

they cannot live in compromise to each other. In Hindu
law, divorce is governed by Hindu Marriage Act, 1955.

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• The following sections of the act deals with divorce:
i. Various grounds on which divorce can be claimed
under Section 13 (1)
• ii. Additional grounds for Hindu wife who can claim
divorce under Section 13 (2)
• iii. Alternate reliefs in divorce proceedings under
Section 13A,
• iv. Divorce by mutual consent under Section 13B,
• v. Presentation of petition for divorce under Section
14
• vi. Divorced persons when marry again under Section
15 of the act.
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 Theories associated with Divorce under
Hindu law

• 1. FAULT OR GUILT THEORY Section 13

•  In 19th century society considered divorce as an evil
concept.
•
• If one of the parties has committed a sin or a
matrimonial offence such as adultery, cruelty, rape,
desertion, bestiality, refusal to obey the court order for
maintenance, marrying an underage person etc. then
that marriage can be dissolved on the basis of these
grounds.
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• The divorce is granted only on the basis of these matrimonial
offences.
• There are mainly two parties included in the fault theory one is
the guilty party (who has committed the matrimonial offence)
and other is the innocent party (who is the aggrieved party).

• The major drawback of this theory is that if both the parties are
at fault no divorce can be granted.

• The divorce legislation in India is based on ‘fault theory’ that

is no party should take advantage of his/her own fault.

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• 2. FRUSTRATION THEORY Section 13
• According to this theory either of the spouse can put
an end to the marriage on the basis of mental
disorder, any physical ailment, conversion of religion,
renunciation of world, and unheard for a very long
period of time.
• Only these factors remains as the ground for divorce
and any type of marital offences will not include in
this theory.                                  
• If a person prefers for divorce on the above
mentioned causes it is considered as a valid ground
under this  theory.

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• 3. MUTUAL CONSENT THEORY Section 13B
• In this theory divorce is obtained by the spouses for
their own good. According to this theory the spouses
by mutual consent can put an end to the marriage
without any arguments.
• The husband and wife can jointly file a petition for
divorce. They can move out of the marriage in free
will.
• The essential ground for divorce under this theory is
mutual consent to dissolve the marriage, that is free
consent of both parties without any compulsion is
needed.

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• 4. IRRETRIEVABLE BREAK DOWN THEORY
Section 13(1-A)

• Where the spouses in no probability can live together

a breakdown occurs in the marriage. In such a
situation the spouses can opt for divorce.

• According to this theory, after breakdown if the court

finds that the spouses cannot live together or is
beyond repair, the husband and wife is allowed to live
separately for a definite period of time without any
communication and emotional attachment.
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• After this period of time they can decide to get
divorced, such type of marriages may be dissolved
without any delay even if one of the party desires to
get divorce.

• The main idea behind this theory is to reduce the

number of unhappy marriages in the society. The
major drawback of this theory is that the spouses can
obtain divorce easily and it gives an advantage to the
guilty party.

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• CONCLUSION

• Earlier the divorce was considered as a sin but the

codified law have brought changes in the concept. If a
marriage become unhappy the spouses can seek for
divorce. In Hindu law the Fault theory, Frustration of
marriage theory, Mutual consent theory Irretrievable
break down theory are acknowledged and divorce can
be obtained by the grounds mentioned in them.

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• THANKYOU

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