THEORIES OF DIVORCE

UNIT 1
 THEORIES OF DIVORCE UNDER HINDU
LAW
• There are various theories of divorce under Hindu Law according to which a married
couple can give divorce, these theories are the reasoning given behind the separation or
dissolution of marriages.

• Guilt or fault theory, mutual consent theory and irretrievable

breakdown of marriage are mainly three theories for divorce under Hindu law.
 Guilt/Fault Theory of Divorce

In accordance with the guilt theory of divorce, the dissolution of marriage is only
permissible if one spouse has committed a matrimonial offence. This theory suggests that
there must be an innocent and guilty party and only the innocent party can seek the remedy
of divorce.
The Hindu Marriage Act of 1955, as amended by the Marriage Laws (Amendment)
Act of 1976, includes nine grounds based on the guilt theory of divorce:

• Adultery
• Cruelty
• Desertion
• Insanity or mental disorder
• Conversion
• Venereal communicable disease
• Leprosy
• Renunciation
• Presumption of death.
 Wife’s Ground for Divorce
The guilt/fault theory of divorce under Section 13(2) of the Hindu Marriage Act, 1955, provides four additional grounds on
which a wife can seek divorce from her husband. These grounds include:

Pre-Act Polygamous Marriage: If the husband has another wife from before the commencement of the Act and is alive at the
time of solemnization of marriage with the petitioner.

Rape, Sodomy or Bestiality: If the husband has been guilty of rape, bestiality or sodomy since the solemnization of the
marriage.

Discontinuance of Cohabitation after an Order of Maintenance: If a wife has obtained a decree under Section 18 of the
Hindu Adoption & Maintenance Act, 1956 and an order of maintenance in proceedings under Section 125, CrPC. and the
cohabitation has not been resumed between parties after one year or more.

Repudiation of Marriage: This ground for divorce is available to the wife if she has expressly (in written or spoken words)
or impliedly discarded the marriage when the marriage was solemnized before she attained the age of fifteen years but before
the age of eighteen.
 Mutual Consent Theory of Divorce

The Indian law provides for the dissolution of marriage through mutual consent in Section 13(B) of the
Hindu Marriage Act, by the Marriage Laws (Amendment) Act, 1976. This provision acknowledges that
marriage is a social contract that two individuals enter into voluntarily and that they should be allowed to
dissolve the marriage if they agree to do so.

The fault or guilt theory, on the other hand, requires one of the spouses to be guilty of some matrimonial
offence for the marriage to be dissolved. The mutual consent theory, in contrast, recognizes that an unhappy
marriage can give rise to misconduct and delinquency and that both spouses should be granted the remedy of
divorce if they agree to separate.
 Irretrievable Breakdown Theory of Divorce

The concept of irretrievable breakdown of marriage is a relatively recent addition to the grounds of divorce and one
of the theories of divorce under Hindu Law. It was introduced in the Hindu Marriage Act in 1976 by the Marriage
Laws Amendment Act.

In the landmark case of Naveen Kohli v. Neelu Kohli, the court held that the marriage bond was beyond
repair and the legal ties had to be severed because of the serious allegations of adultery, cruelty and other types of
misconduct made by both parties against each other. The Supreme Court urged the Union of India to include
‘Irretrievable Breakdown of Marriage’ as a separate ground for divorce under Section 13 of the Hindu Marriage Act,
1955 and amend the act.
 Conclusion
The theories of divorce under Hindu Law provide us with various grounds for the dissolution of marriage. The
Hindu Marriage Act recognizes different theories of divorce under Hindu Lawsuch as fault or guilt theory,
mutual consent theory and irretrievable breakdown theory.

The fault theory requires that one of the spouses should be guilty of a matrimonial offence to dissolve the
marriage. The mutual consent theory provides a way out for both parties if they agree to part ways of their
own free will. Finally, the irretrievable breakdown theory is not yet a separate ground for divorce under the
Hindu Marriage Act but is recognized by the Supreme Court.