Theories Of Divorce

Theories of Divorce

Marriages are the Holy institution in Indian culture. It’s a pure bond where a man & woman agrees to spend rest of their lives together. Marriages are the purest bond between two individuals, as well as between two families.  In Ancient times, there was no concept of divorce. They considered marriage as a sacred concept. According to Manu, the partners can’t get separated from each other; their marriage can’t be dissolved. Later the concept of divorce evolved and established to put the marriage to an end.

Divorce is a judicial act through which the marriage relation between the parties is dissolved. After a decree of divorce is passed by the honorable court, the parties can no longer be husband & wife.

Divorce & Theories of Divorce

There are three theories by which a couple can give divorce. These are the theories through which couples can separate and end their marriage. There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable breakdown of marriage theory. These can be categorized under the following points:

Fault Theory

  • Fault of one party entitles the other party to get divorce.
  • Marriage can be dissolved only when one of the parties in a marital relationship had committed a matrimonial offence. For example, adultery, bigamy, violence etc. This theory includes section 13(1) (i), 13(1) (i)(a), 13(1) (i)(b), 13(2) of the Hindu Marriage Act. 
  • It is compulsory in this theory that we should have a guilty and an innocent party and only that innocent party can seek divorce.

This theory is problematic because it tries to paint divorce as a black and white situation, where one person is the bad human & other one is a victim, which is not the case in most situations. In many situations, both the parties have some wrong work on their side but this theory doesn’t explain that. In this theory, either one person has guilt, not both are wrong.

Mutual Consent Theory

In this theory, both husband & wife want to get separated by mutual consent as they believe that both husband and wife don’t want to continue their marriage or they can’t handle their marriage. This concept is covered under section 13(b) of the Hindu Marriage Act. Following are provision which allow parties to take divorce by Mutual consent: –

(A)    Hindu Marriage Act (Section 13-B)
Parties are living separately for a period of 1 year or more than that, and they are not willing to live together which they need mutually agreed that the wedding should be dissolved. On this ground, the divorce can take place.
(B)    Special Marriage Act (Section 28) – after 1 year of separate living.
(C)    Parsi Marriage & Divorce Act (Section 32-B) – after 1 year of separate living.
(D)    Indian Divorce Act (Section 10-A) – after 2 years of separate living.

In Samistha vs. Om Prakash, the requirements for divorce by Mutual Consent were discussed. They are:
Both the partners have been living separately for a period of one year. It means the parties are not living as husband and wife, irrespective of the fact that they are living in the same or different houses.

Theory of Irretrievable Breakdown of Marriage

It is somewhat similar to Divorce at will. When a divorce case is filed in the court, the judge asks why they want to get separated. The marriage is already dead but the partners are not mutually consenting for divorce.

It can be because of financial security or because of their children’s. This theory is applied to the cases where the spouse has not done any act which are under the above theories and one party seeks divorce and the other doesn’t. (Yousuf v. Sowrama AIR 1971, Kerala, 261)

Some case laws for detailed explanation: –

Samar Ghosh V. Jaya Ghosh (2007)

Wife did not cohabit with husband and refused to have children. She did not make food for him, insulted and humiliated him in front of her father so much that he left the house.
Court considered this as a case of mental cruelty of wife over husband and accepted the petition of husband for divorce on ground of irretrievable breakdown of marriage.

Naveen Kohli V. Neelu Kohli (2006)

When no solution come out even after a serious attempt by court to bring the parties together, the court must presume that the marriage is over & if then also divorce is not granted it will bring more problems to the parties.