theories of divorce under hindu marriage act, 1955

In the ancient Hindu law, the object of marriage was of great excellence, it was more connected with the performance of religious duties and begetting (bring a child into the world) a son, which will enable a person to get rid of the sufferings of hell and to attain salvation. Marriage has a sacramental value and one of the essential ‘sanskara’. It is seen as a lasting and sacred connection. Because the marital connections between the partners were established and were not based on contract, Hindu marriage was regarded an absolute and necessary sacrament in ancient times. With some religious customary rights, the permission of the parties did not occupy a particularly significant place, thus a person might be a minor or a person of unsoundness of mind, but the marriage was deemed legal provided it was properly solemnized. The modern understanding of marriage, on the other hand, has become contractual in nature, based on the values of liberty and equality. Today, it is a well-established fact that for a marriage to be legitimate, the parties must consent, and they must not be of unsound mind to such a point that they are incapable of providing valid consent to the marriage or be capable of procreating a child together.

Thus, with considering the modern obligation of a Hindu marriage, although, are contractual in nature they hold a great sacramental value with the fundamental concept of liberty and equality, consequently divorce is substantially identified now, then to the ancient Hindu times where the consent was not necessary and the act of divorce was absolutely disregarded. Furthermore, as time progresses, there are numerous factors for a couple after solemnization of their marriage would opt for divorce.

Under Hindu marriage act 1955, section 13 deals with the aspect of the grounds on which a divorce can be granted to a couple after solemnization of their marriage. Divorce relates to the dissolution of the marriage, that means putting an end to all the marital obligation a married couple acquire after solemnization of marriage. They no longer are recognized as husband and wife. In addition to that fact, the couple have no mutual right of heritance on each other. They are no longer bound together to accomplish all the spousal duties.

There are various theories based on divorce under Hindu law, which are hereinafter mentioned:

  1. Frustration of marriage theory: The marriage is frustrated, that further more means that the marriage between the spouses is impossible to manage and abide by the spousal obligations, when one of the spouse is suffering from any physical sickness or unsoundness of mind or has changed the religion or has renounced the world or has disappeared for a very long time, then the other party to the marriage can get divorce under this theory.
  2. Offence or guilt theory: According to this theory a marriage can be dissolved only if one of the parties to the marriage has after the solemnization of marriage has committed some matrimonial offence like adultery, marital rape, cruelty, desertion etc. there is always a guilty party and an innocent party in this theory. In the simpler terms it could also mean, if one party has committed an act which contravenes with the spousal duties, and that they are guilty of that particular act, due to which the marriage between the spouses has become impossible to manage to such an extent that there is no cohabitation. However, if the aggrieved party accepts the act of the guilty party, then divorce shall not be granted. In, Rajan Vasant Revankar Vs. Shobha Rajan Revankar. The Bombay high court held that scandalous allegation by the wife against the mother in law, sister in law, and brother in law caused mental cruelty to the husband and it is a ground of divorce.
  3. Mutual consent theory:  Both the parties to the marriage, makes a joint petition to the court for divorce between them. Sec. 13B of Hindu Marriage Act 1955, deals with this provision. In mutual consent theory, both the parties to the marriage recognizes that marriage should be dissolved and that they should not be bound together in a marriage, so to add into that fact they can make a joint petition to the court. Although, it is pertinent to note over here is that, there must be free and full consent of both the parties to the marriage
  4. Irretrievable breakdown theory of marriage: It is a situation in which either or both the parties to the marriage are no longer willing to live with each other, thereby destroying their husband and wife relationship with no chances or reconciliation. In Yousuf Rawther Vs. Sowramma, it was stated that “while there is no rose, which has no thorns, but if what you hold is all thorns and no roses, better throw it away”

In this theory of divorce, marriage is impossible to perform between the spouses, to such an extent that the cohabitation between them is frustrated.

In several situations, the Supreme Court has recommended that the Irretrievable breakdown be included as a specific remedy in the Hindu Marriage Act, 1955, because it might be difficult for the parties to get divorce owing to loopholes. In addition, in its 71st report, the Law Commission of India examined this idea in depth and suggested ways to incorporate it into the law. In India only the Special Marriage Act, 1954 recognize the irretrievable breakdown as a ground for divorce.

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