Вы находитесь на странице: 1из 35

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA - 800001

FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE COURSE


TITLED –

FAMILY LAW
On The Topic
THEORIES OF DIVORCE UNDER HINDU LAW

SUBMITTED TO: -
MRS. POOJA SRIVASTAVA
TEACHER ASSOCIATE

SUBMITTED BY: - GROUP MEMBERS


NAME- KARAN SINGH RAUTELA ROLL NO.- 1736
NAME- INDRAJEET KUMAR ROLL NO..- 1732
NAME- ISHAN BRAMHBHATT ROLL NO.- 1733
NAME- KESHAV KUMAR ROLL. NO.- 1737
SEMESTER: III
COURSE: B.A., L.L.B(HONS)
SESSION: (2017-2022)
DECLARATION

We hereby declare that the project entitled “THEORIES OF DIVORCE” submitted by us at


CHANAKYA NATIONAL LAW UNIVERSITY is a record of bona fide project work carried out by
us under the guidance of our mentor MRS. POOJA SRIVASTAVA. We further declare that the work
reported in this project has not been submitted and will not be submitted, either in part or in full, for the
award of any other degree or diploma in this university or in any other university.

I
ACKNOWLEDGEMENT

We would like to express my special thanks of gratitude to my teacher MRS. POOJA


SRIVASTAVA, Teacher Associate, who gave us the golden opportunity to do this wonderful
project on the topic and who also helped us in doing a lot of Research and we came to know
about so many new things we are really thankful to her. We are making this project not only
for marks but to also increase our knowledge.

II
Table of Contents
1. INTRODUCTION ................................................................................................................................... 4
AIMS AND OBJECTIVES ................................................................................................................ 6
HYPOTHESIS .................................................................................................................................... 6
RESEARCH METHODOLOGY ........................................................................................................ 6
SOURCES OF STUDY ...................................................................................................................... 6
LIMITATIONS OF THE STUDY...................................................................................................... 7
RESEARCH QUESTIONS ................................................................................................................ 7
2. GUILT THEORY ..................................................................................................................................... 8
2.1 POSSIBLE FAULTS .......................................................................................................................... 9
2.2 DEFENCES.................................................................................................................................... 10
2.3 PROOF .......................................................................................................................................... 11
2.4 EXPENSES .................................................................................................................................... 11
3. IRRETRIEVABLE BREAKDOWN THEORY ............................................................................................. 15
3.1 APPLICABILITY OF BREAKDOWN THEORY UNDER HINDU LAW .................................................. 17
3.2 THE RECOMMENDATIONS OF LAW COMMISSION AND ITS IMPACT ............................................. 18
3.3 IRRETRIEVABLE BREAKDOWN OF MARRIAGE UNDER HINDU MARRIAGE ACT, 1955 ................ 19
3.4 THE 217TH REPORT OF LAW COMMISSION OF INDIA ON IRRETRIEVABLE BREAKDOWN OF
MARRIAGE ........................................................................................................................................ 20
4. CONSENT THEORY ............................................................................................................................. 22
4.1 WHETHER THE WAITING PERIOD OF SIX MONTHS IS MANDATORY OR DIRECTORY ..................... 24
4.2 WHETHER CONSENT CAN BE UNILATERALLY WITHDRAWN ........................................................ 25
4.3 WHETHER MERE SILENCE AT THE SECOND STAGE WOULD TANTAMOUNT TO WITHDRAWAL ..... 26
5. INDISSOLUBILITY OF MARRIAGE THEORY ......................................................................................... 19
6. WILL THEORY..................................................................................................................................... 21
7. FRUSTRATION OF MARRIAGE ........................................................................................................... 22
8.CONCLUSION AND SUGGESTION ....................................................................................................... 23
BIBLIOGRAPHY ...................................................................................................................................... 26

III
1. INTRODUCTION
Divorce was unknown to general Hindu Law as marriage was regarded as an indissoluble union of
the husband and wife. Manu has declared that a wife cannot be released from her husband either by
sale or by abandonment, implying that the marital tie cannot be severed in any way. It, therefore,
follows, that the textual Hindu Law does not recognise a divorce. Although Hindu Law does not
contemplate divorce yet it has been held that where it is recognised as an established custom it
would have the force of law. In the absence of a custom to the contrary, there can be no divorce
between a Hindu husband his wife, who by their marriage had entered into a sacred and
indissoluble union, and neither conversion, nor degradation nor loss of caste. Nor the violation of
an agreement against polygamy dissolved the marriage tie. Manu does not believe in
discontinuance of the marriage relationship.

However, marriage is also regarded as a social institution and not merely a transaction between two
individuals, and therefore, it was argued that there was a social interest in prevention and
protection of the institution of marriage was hedged with legal protection. A marriage can be
dissolved only if one of the spouses is found guilty of such an act and conducts which undermined
the very foundation of marriage.

During the pre-Vedic era, despite separation of marriage partners, the marriage was not null and
void. Women had never used their rights to disown men. However, two ancient smriti writers,
Narada and Parasara laid down few grounds on which women could remarry. Impotency, she was
allowed to take second husband if the first one was missing or dead, or had taken to asceticism, or
degraded in caste. However, earlier there was no systematic code to regulate divorce in specific.

There are various theories of divorce such as fault theory, on the basis of which most of the
grounds of judicial separation and divorce are formulated in section 13(1) of the Hindu Marriage
Amendment Act, 1976. There are also modern theories of divorce such as Mutual Consent on the
basis of which a new ground of divorce; divorce by mutual consent has been incorporated. Yet
there is one more theory called breakdown theory which is reflected in some grounds such as
failure to resume cohabitation within one year getting the degree of restitution of conjugal rights
and failure to resume cohabitation within one year after getting the degree of judicial separation.

4
Under Hindu Marriage Act, 1955 primarily there are three theories under which divorce is granted:

(i) Guilt Theory or Fault Theory;

(ii) Irretrievable Breakdown Theory;

(iii) Consent Theory

Apart from these major theories there are three other minor theories as following:

(i) Frustration of Marriage

(ii) Will Theory

(iii) Indissolubility of Marriage

5
AIMS AND OBJECTIVES

 to critically analyse the Theories of Divorce under Hindu Law


 to find out the pros and cons of Theories of Divorce

HYPOTHESIS

The researchers have presumed

 that guilt theory gives spouse rights to divorce for the matrimonial offences committed by the other
spouse during married life.
 that supervening theory gives right of divorce to spouse when there is frustration of marriage any one
of the spouses.
 that irretrievable breakdown theory is misused for gaining benefits of matrimonial relation.
 that mutual consent theory makes a divorce either too very easy or very difficult.

RESEARCH METHODOLOGY
In this project Doctrinal Method will be used. Doctrinal Methods refer to Library research, research
or processes done upon some texts writings or Documents, legal propositions and Doctrines,
Articles, Books as well as Online Research and Journals relating to the subject.

SOURCES OF STUDY
 Primary sources: Case Law, Legal Sources, Bare Acts, etc.
 Secondary Sources: Newspapers, journals, periodicals, etc.

6
LIMITATIONS OF THE STUDY
There are various hindrances which can be faced by the researcher during the formation of this
project such as scarcity of time, expensive legal materials for various research works, research done
by an individual.

RESEARCH QUESTIONS

1. What are the Theories of Divorce?


2. What is the purpose of Theories of Divorce?
3. What are the grounds on which the divorce can be granted?
4. How these theories benefit the rights and privileges of either of the spouses?
5. How these theories prevent illegal divorces between husband and wives?

7
2. GUILT THEORY
The guilt or offence theory of divorce is essentially a 19th century concept where the society abhorred divorce
as an evil, as devil‘s mischief, and therefore that society could agree for divorce only on that basis that one
of the parties has committed some sin, some very heinous offence against marriage. As a corollary to the guilt
of one party, the other party was required to be totally innocent.1
According to this theory, if a party commits a matrimonial offence the aggrieved party may seek divorce form
the delinquent spouse. It is only the matrimonial offence which is a ground of divorce. No criminal offence,
howsoever heinous, is a ground for divorce. Traditionally, adultery, desertion and cruelty are considered as
matrimonial offences. But this should be treated only as an illustrative list. Rapes, sodomy, bestiality, refusal
to obey the order of a court to pay maintenance to the wife, marring an underage person, are also examples
of matrimonial offences. If the respondent is not guilty of any of these offences, divorce cannot be granted
against him even if he has committed the offence of murder, dacoity, cheating, theft, treason, smuggling,
black marketing or bribery etc. hence what matters for divorce is the person injury to the marital relations of
the other spouse and not the injury dine to any other person(s) in the society. A fault divorce is usually chosen
by a spouse who wishes to be vindicated by proving the other's fault. In some states, the spouse who proves
the other's fault may receive a greater share of the marital property or more alimony. 2
The offence theory stipulates for two things: (i) a guilty party, i.e., the party who has committed one of the
specified matrimonial offences, and (ii) an innocent party, who has been outraged and who has played no role
in the criminality or the matrimonial offence of the other party. If the purpose of the divorce law was the
punishment of the guilty party, then it was natural to lay down that the other party should have no complicity
in the guilt of the offending party. If the petitioner‘s hands are not clean, he cannot seek relief3. It is a different
matter that the English courts took this principle to its logical end. This dichotomy of matrimonial offence
and innocence led not merely to the evolution of matrimonial offences but also to the matrimonial bars. Such
are the notions of matrimonial offence and matrimonial innocence that the burden of proof of both is on the

1
See Paras Diwan, ―Modern Hindu Law‖ (3rd ed.), p.61-75.
2
Ramesh Chandra Nagpal, ―Modern Hindu Law‖ Eastern Book co.
3
Connivance, acquiescence in the misconduct of respondent, condonation and collusion (collusion was made a
discretionary bar by the Matrimonial Causes Act, 1963) were absolute bar, while petitioner‘s own adultery, unreasonable
delay, conduct conducing to respondent‘s guilt were discretionary bars under English Law before the coming into force
of the Divorce Reform Act, 1969: see the Matrimonial Causes Act, 1950, section 4, and the Matrimonial Causes Act,
1965, section 5. These bars were done away with by the Divorce Reform Act, 1969: see sub-sections (1) and (2) of
section 2. See also section 5 of the Act of 1973 under which, inter alia, on account of grave hardship to the respondent
the petition of divorce may not be granted.
See also section 23 of Hindu Marriage Act, 1955.

8
party who seeks relief. English law classified these bars to matrimonial relief into discretionary bars and
absolute bars. The existence of the absolute bar was fatal to the matrimonial petition, while in the case of
discretionary bars, the court had discretion and it might exercise in favour of the petitioner, or it might refuse
to do so. Under Indian law all bars are absolute bars.

The guilt theory, on the one hand, implies, a guilty party, i.e., commission of matrimonial offence on the part
of one of the parties to the marriage, and, on the other hand, it implies that the other party is innocent, i.e., in
no way a party to, or responsible for, the offence of the guilty party. This principle was taken very far in
English law; so much so that if both the parties, independently of each other, committed matrimonial offence
the marriage could not be dissolved. For instance, if a petition is presented on the ground of respondent ‘s
adultery and it is established that the petitioner is also guilty of adultery, then the petitioner cannot be allowed
divorce. This is known as the doctrine of recrimination. One of the Chief Justice of England caustically
remarked; ―Perhaps it is not vouchsafed to everybody, whether in Holy Orders or out of them, to appreciate
the full beauty of the doctrine that if one of the two married persons is guilty of misconduct there may properly
be divorce, while if both are guilty they must continue to abide in the holy state of matrimony. English law
has now abandoned this position.

Since the guilt theory requires that the petitioner should be innocent, the English law evolved the doctrine of
matrimonial bars, discretionary bars and absolute bars. This means that even if a petitioner is able to establish
a ground of divorce to the satisfaction of the court, he may not get divorce if one of the matrimonial bars 13 is
proved against him.

2.1 POSSIBLE FAULTS


This type of divorce can be based in any of the following:

• cruelty4, which includes the infliction of unnecessary emotional or physical pain and abusive
treatment
• adultery5 means voluntary sexual activity between a married person with a person other than his or
her spouse

4
See Section 13 (1) (ia), the Hindu Marriage Act, 1955; section 27 (1) (d), the Special Marriage Act, 1954; section 10
(1) (x), the Divorce Act, 1869; section 2 (viii), the Dissolution of Muslim Marriage Act, 1939; section 32 (dd), the Parsi
Marriage and Dissolution Act, 1936.
5
See Section 13 (1) (i), the Hindu Marriage Act, 1955; section 27 (1) (a), the Special Marriage Act, 1954; section 10 (1)
(i), the Divorce Act, 1869; section 32 (d), the Parsi Marriage and Dissolution Act, 1936. 16 See Section 13 (1) (ib), the
Hindu Marriage Act, 1955; section 27 (1) (b), the Special Marriage Act, 1954; section 10 (1) (vii), the Divorce Act, 1869;

9
• desertion for a specified length of time

• confinement in prison for a number of years6

• alcohol or drug abuse

• insanity7

• physical inability to engage in sexual intercourse, if it was not disclosed before marriage8

• infecting the other spouse with a sexually transmitted disease9

2.2 DEFENCES
There are also defences which can be raised by the other spouse in a fault divorce proceeding.

• Recrimination - It is the defence wherein the accused spouse in an action for divorce makes a similar
accusation against the complainant spouse.
• Condonation - Which usually takes the form of implied or express forgiveness of a spouse's marital
wrong and, therefore, weakens the accusers‘case.
• Connivance - Which is the act of knowingly and wrongly overlooking or assenting without placing
any opposition to a spouse's marital misconduct, especially to adultery.
• Reconciliation - Where the spouses voluntarily resume marital relation by cohabiting as spouses prior
to a divorce becoming final with mutual intention of remaining together and re-establishing a
harmonious relationship.
• Provocation - Inciting the other spouse to do a certain act. An example of this is when a spouse
claiming for abandonment, the other spouse may raise the defense that the claiming spouse provoked
the abandonment.

section 2 (ii), the Dissolution of Muslim Marriage Act, 1939; section 32 (g), the Parsi Marriage and Dissolution Act,
1936.
6
See Section 27 (1) (c), the Special Marriage Act, 1954; section 2 (iii), the Dissolution of Muslim Marriage Act, 1939;
section 32 (f), the Parsi Marriage and Dissolution Act, 1936.
7
See Section 13 (1) (iii), the Hindu Marriage Act, 1955; section 27 (1) (e), the Special Marriage Act, 1954; section 10
(1) (iii), the Divorce Act, 1869; section 2 (vi), the Dissolution of Muslim Marriage Act, 1939; section 32 (b) and section
32 (bb), the Parsi Marriage and Dissolution Act, 1936.
8
See Section 2 (v), the Dissolution of Muslim Marriage Act, 1939.
9
See Section 13 (1) (v), the Hindu Marriage Act, 1955; section 27 (1) (f), the Special Marriage Act, 1954; section 10 (1)
(v), the Divorce Act, 1869; section 2 (vi), the Dissolution of Muslim Marriage Act, 1939; section 32 (e), the Parsi
Marriage and Dissolution Act, 1936.

10
2.3 PROOF
It is equally important to consider all the circumstances when making these charges or planning a defence.
Proof of marital fault is needed. It usually requires witnesses, involves a lot of time and expenses, and there
is a high probability that the divorce will turn vicious.

It is important to note that the grounds and defences for a fault divorce are defined by the different
jurisdictions and that the legal interpretation may likewise vary from one place to another. Also, be aware
that actual legal definitions may be very dissimilar to a layman's concept of the term. 10

2.4 EXPENSES
Fault divorce is usually more expensive, because it may necessitate a trial. This means hiring the services of
an attorney and correspondingly paying for investigations, interrogatories and requests for evidence.
Oftentimes, expert witnesses are invited during the hearing. However, there are also instances when fault
divorce cases are settled with good reason before trial commences.

If the scenario is of both spouses being at fault or both spouses have shown grounds for divorce exist, the
court will grant a divorce to the party who is least at fault under the doctrine of "comparative rectitude." This
is a recent development in the field of law, because years ago, when both spouses were at fault, neither was
entitled to a divorce.

Under English law the absolute bars are: connivance, acquiescence in the misconduct of the respondent,
condonation and collusion22. The discretionary bars are:

Petitioner‘s own adultery, cruelty, unreasonable delay, conducts conducting to the respondent‘s guilt, and the
like. The existence of an absolute bar is fatal to the petition, while in the case of discretionary bars the court
may exercise, or refuse to exercise, its discretion in favour of the petitioner. The modern English law has
abandoned practically all the bars11

10
Dr. Basant Kumar, ―Hindu Law‖, 3rdedn.2011, p. 118-120; B. M. Gandhi, ―Hindu Law‖ 2ndedn.2003, p.243-263;
M.A. Qureshi, ―Muslim Law of Marriage, Divorce and Maintenance‖, 1992, p.185-200; Dr.
ParasDiwan, ―Muslim Law in Modern India‖, 1stedn.1977, p.71-90; Mulla, ―Principles of Mahomedan Law‖,
19thedn.2003, p. 258-275; TahirMahmood, ―The Muslim Law of India‖, 3rdedn. 2002, p. 88-110. 22 Collusion was made
a discretionary bar by the Act of 1963.
11
Bars have now been abolished by Divorce Reform Act, 1969; See now the Matrimonial Cause Act, 1973. According
to the rule of interpretation and construction of statutes, when there is conflict between two provisions of an Act, they
are to be given a harmonious interpretation so that both may exist and none is made nugatory. This may be done by

11
It has been seen that in early English law adultery, cruelty and desertion were the only three grounds of
divorce.12 Later on insanity was added as a ground of divorce.

Insanity did not fit in within the framework of guilt or matrimonial offence theory, as the party suffering from
insanity could hardly be called a guilty party. It is a misfortune rather than misconduct. This led to renaming
of the guilt theory as fault theory. If one of the parties has some fault in him or her, marriage could be
dissolved whether that fault is his or her conscious act or providential. In some systems of law, there exists
several grounds of divorce. Sentence of imprisonment for a specified period, whereabouts of a party not been
known for a specified period to the other party, wilful refusal to consummate the marriage, leprosy, venereal
diseases, rape, sodomy, bestiality, etc., have come to be recognised as grounds of divorce. Some systems also
include grounds like incompatibility of temperament.13
Originally, the Hindu Marriage Act14 incorporated the guilt or fault theory, and laid down that there must be
a guilty party and an innocent party. The Act had a conservative stance. All the three traditional fault grounds,
adultery, cruelty, and desertion, were made grounds of judicial separation and not of divorce. But now under
Section 1315, nine grounds of divorce were recognized both for husband and wife, and two additional grounds
were recognized on which the wife alone could seek divorce. Barring aside insanity and leprosy, rest of the
grounds arose out of some offence or wrong of the respondent. These were: living in adultery, change of
religion, insanity, leprosy, venereal diseases, presumption of death, renunciation of world, non-resumption
of cohabitation by the respondent after a decree of judicial separation and non-compliance with the decree of
restitution of conjugal rights; (Before 1964, the petitioner, in the petition for restitution of conjugal rights, or
in the petition for judicial separation, alone could seek divorce). Thus, these were incorporated essentially as
guilt grounds. The wife‘s additional grounds, viz., rape, sodomy or bestiality28 of the husband and the
existence of another spouse of the polygamous pre-1955 marriage of the husband, were also based on the
same theory. Even renunciation of the world by becoming a sanyasi fitted into the framework of fault theory,
though the orthodox will not agree that if one of the spouses enters into the holy order he could be said to
have committed any offence, yet looked at from the angle of the other spouse it is nothing but permanent

limiting the scope of one provision to make room for the other. Here also section 13 (1-A) and section 23 (1) (a) have
to be harmoniously construed; Bimla Devi v. Singh Raj, AIR 1977 P&H 167(FB).
12
Matrimonial Causes Acts of 1857, 1923 and 1937.
13
Ramesh Chandra Nagpal, ―Modern Hindu Law‖ Eastern Book co; See also Paras Diwan, ―Modern Hindu Law‖ (3 rd
ed.), p. 70-78.
14
The Hindu Marriage Act, 1955.
15
Ibid. 28 Definition of ‗rape‘ as given in the Indian Penal Code holds good here. Forced cohabitation with a wife under
16 years of age, or during judicial separation, may be regarded as rape. Sodomy is anal intercourse by a man with his
wife or with another woman or with a man. Consent of the victim and the victim‘s age are not relevant considerations
here. Bestiality is sex with an animal.

12
desertion. Section 23 of the Hindu Marriage Act16 deals with the matrimonial bars. Recently, the Supreme
Court in Darshan Gupta v. Radhika Gupta,17held that the petitioner must approach court with clean hands.
Grounds of divorce under S. 13(1) are based on matrimonial offence or fault theory. It is only commission of
matrimonial offence by one spouse that entitles the other spouse to seek divorce. Hence, if petitioner
himself/herself is guilty or at fault, he/she would be disentitled to seek divorce. Again in Badshah v. Sou.
Urmila Badshah Godse18, the Court held that where a man marriages second time by keeping that lady in
dark about the first surviving marriage, such lady will be treated to be a legally wedded wife of the man for
the purpose of claiming maintenance as if this interpretation is not accepted, it would amount to giving a
premium to the husband for defrauding the wife. Stating that the husband cannot take advantage of his own
wrong by saying that such second wife cannot claim maintenance under Section 125 of Cr.P.C. as she is not
his ―legally wedded wife‖, the Court held that while dealing with the application of destitute wife or hapless
children or parents under the said provision, the Court is dealing with the marginalized sections of the society
and hence, it is the bounden duty of the Courts to advance the cause of the social justice. The court further
held that though such marriages are illegal as per the law, they are not immoral‘ and hence a financially
dependent woman cannot be denied maintenance on this ground.

Thus, it is laid down that the petitioner will not be allowed to take advantage of his or her own wrong or
disability, this is to say, if the guilt of the respondent is, in any way, the direct or indirect outcome of some
wrong or disability of the petitioner, the petitioner will not be entitled to the matrimonial relief asked for,
even if he had been able to establish his ground of relief beyond reasonable doubt. In case the ground for
seeking matrimonial relief (divorce or judicial separation) is adultery, the petitioner must show that he is in
no way accessory to the respondent‘s adultery, and that he did not connive at the adultery of the respondent.
In every petition, the petitioner had to show that there is no collusion between him and the respondent. In
case the ground is cruelty or adultery, the petitioner is also required to show that he or she did not condone
the offence. The petitioner in every matrimonial cause is required to prove that there is no improper delay in
the presentation of the petition.

Even after the amendments of 196419 (Which introduced the breakdown theory of divorce) and of 197620
(Which introduced consent theory of divorce), that fault grounds of divorce and the bars to matrimonial relief

16
The Hindu Marriage Act, 1955.

17
(2013) 9 SCC 1 (Civil Appeals Nos. 6332-33 of 2009, decided on July 1, 2013) .
18
Criminal Misc. Petition No.19530/2013, decided on October 18, 2013.
19
The Hindu Marriage (Amendment) Act, 1964 (44 of 1964) (w.e.f. 20-12-1964).
20
The Hindu Marriage (Amendment) Act, 1976 (68 of 1976) (w.e.f. 27-5-1976).

13
are still part of Hindu law of divorce. The amending Act of 1976 has made adultery, cruelty, and desertion as
fault grounds of divorce, and has added two more fault grounds of divorce for wife.

14
3. IRRETRIEVABLE BREAKDOWN THEORY
The fifth and the most controversial theory of Divorce is the Breakdown theory in the legal
jurisprudence based on the principle that marriage is a union of two persons based on love, affection
& respect for each other. If any, out of love, respect and affection is hampered due to any of the
reasons like cruelty, desertion, adultery, insanity etc. & if the matrimonial relation between the
spouses reaches to such a situation from where it becomes totally irreparable, or it comes to a point
where neither of the spouse can live peacefully, happily and with each other & acquire the benefit of
a matrimonial relations, then it is better to end the marriage as for now there is no reason and point
of stretching such a numb relationship which exist only in name & not in actual form. The fact that
parties to marriage is living separately for reasonably longer period of time (e.g. 2 years or 4 years),
with any reasonable cause or even without any reasonable and all their attempts to reunite failed, it
will be pronounced by Law that relationship is dead now.

The basic human and social problem is of the maladjusted couples. Many marriages fail not because
of the wickedness of one party or the other, but they just fail. Many couples try, and try their best to
make their marriage a success but they fail. Sometimes marriages fail because of selfishness,
boorishness, callousness, indifference and thinks like these on the part of one of the parties to the
marriage. All this does not amount to any matrimonial offence. Yet, the marriage is not get-going.
There are several cases in which parties live separate and apart from each other for several years and
just because one of the parties wants the marital bond to continue, there is no way out for the other.
In the context of Muslim case, VR Krishna Iyer J. Said, “daily trivial differences get dissolved in the
course of time and may be treated as the teething troubles of early matrimonial adjustment. While
the stream of life, lived in married mutuality, may wash away smaller pebbles, what is to happen if
intransigent incompatibility of minds breaks up the flow of the stream? In such a situation, we have
a breakdown of the marriage itself and the only course left open is far law to recognize what is a fact
and accord a divorce”.21

In the countries of the world the breakdown principle has found recognition in three forms:

(i) the determination of the question of fact whether in fact a marriage has broken down is left to the
court; if the court, in a case before it, is convinced that a marriage has broken down, it passes a decree
of divorce.

21
Abubacker Haji v. Mamu Koya, 1971 KLT 663.

15
(ii) The legislature lays down the criterion of break-down and the criterion that has been laid down
in most countries is that if parties are living separate and apart for a certain duration ranging from
one year to seven years it is sufficient proof of breakdown of marriage, and a decree of divorce may
be granted at the instance of either party.

(iii) If parties are living separate for certain duration one year to two years under a decree of judicial
separation, or of a decree of restitution of conjugal rights is not complied with for certain duration –
one year to two years – the either party may seek divorce. It should be noticed clearly that in
breakdown principle of divorce culpability or guilt or innocence of either party does not figure
anywhere. A marriage is dissolved just because it has broken down.22

In Hindu law the breakdown principle in the third form of divorce was introduced in 1964, and in
1970 in the Special Marriage Act. This was done by amending the last two clauses of divorce of the
two statutes. The new Section 13(IA) of the Hindu Marriage Act laid down that if parties have not
resumed cohabitation for a period of two years or more after a decree of judicial separation, or if a
decree of restitution of conjugal rights has not been complied with for a period of two years or more,
then either party may sue for divorce. The provision in Section 27(2) of the Special Marriage Act is
identical except that the period therein is only one year. When the Hindu law provision came for
interpretation before our courts, our courts tested it on the touchstone of guilt theory and looked in
the question very closely whether the petitioner is thereby not taking advantage of his own wrong,
and if they found culpability in him, they refused the relief23. In most of the cases the question came
in this form: a wife obtained a decree of restitution of conjugal rights but the husband did not comply
with it. After a period of two years the husband sued for divorce. The courts said that since he himself
has not complied with the decree, he is in the wrong, and if divorce is allowed to him, it will amount
to giving him an advantage of his own wrong24. Looked at in this manner the argument is not merely
plausible but appears convincing. But the point is, if non-compliance is a criterion of breakdown of
marriage, then divorce should be granted, without bothering which of the two parties bears the blame
for the disintegration of marriage.

22
Paras Diwan, THE BREAKDOWN THEORY IN HINDU LAW, 1969 Lawyer (J) 192-204
23
Chamanlal v Mahinder Devi, 1968 Punj 287; Laxmibai v. Laxmichand, 1968 Bom 332; Raghuvir v. Satyapal, 75 PLR
70; Kanak v Aman, 1970 Cal 328; Shakuntla v. Sardari lal, 1972 P&H 29; Sayal v Sayal, 1968 Punj 489; Someswra v.
Lilawanti, 1968 Mys 274; Ram v. Kripa, 1975 Raj 28.
24
Id.

16
It is very unfortunate that neither the Law Commission, the report of which constitutes the basis of
the Marriage Laws (Amendment) Act, 1976, nor the framer of the Marriage Laws (Amendment)
Bill, 1976 looked at this aspect of the matter. In this regard only suggestion that has been made is
this that the period of two years separation under the Hindu Marriage Act, 1955 should be reduced
to one year.25 One wished very much that parliament should have enacted a simple provision that if
parties have ceased to cohabit for a period of two years (irrespective of fact whether there is a decree
of judicial separation of restitution), then either party may sue for divorce. A provision like this
would help us in achieving the goal of a uniform civil code, as such a provision would be, it is
submitted, acceptable to all communities. It will not work hardship on the women, as, even after
divorce, under both the statutes, a wife, who has no means of livelihood, can claim maintenance from
her divorced husband.

3.1 APPLICABILITY OF BREAKDOWN THEORY UNDER HINDU LAW


The concept of irretrievable breakdown of marriage was for the first time introduced in New Zealand
where it was recognised that it need not be necessary for there to be some fault or other for a spouse
to want to opt out of a marriage and hence the law has to recognize and carter to that requirement.26
In 1969 a case was considered by the court in England where both the parties to marriage had
committed adultery. Thus the court on the wife’s petition observed Breakdown of Marriage and
granted a Divorce.27 The case had opened the gate for the theory in England. The court of appeal in
the same case has held that “Today we are perhaps faced with a new situation as regards the way to
be attached to one particular factor i.e. the Breakdown of Marriage”.

The debate in India on introducing irretrievable breakdown of marriage as a ground of divorce is


indeed and old one but the 71st report of law commission of India has been considered as the first
major proponent of the concept of Breakdown theory. The report titled, “The Hindu Marriage Act,
1955 irretrievable breakdown of marriage as a ground of divorce” hence registered that theoretical
basis for introducing irretrievable breakdown of marriage as a ground of divorce is one with which
by now, lawyers and others have become familiar.28 It emphasized that restricting divorce grounds

25
amended sec 13(1A), Hindu Marriage Act, 1955.
26
Masarati v. Masarati, 1969 1 WLR 393 CA.
27
Id.
28
Vijender Kumar, “Irretrievable Breakdown of marriage: Rights of a married couple” Vol.5 No.1, NALSAR
Law Review 2010 p.17

17
based on faults shall cause injustice to those couples who are struck in situation when neither party
have any fault with the marriage having became merely an external appearance without any
efficacy.29

While talking about the need of introduction of irretrievable breakdown of marriage as a ground of
divorce the 71st report of law commission said, “A petition of divorce on the ground of Irretrievable
Breakdown of Marriage as visualized by us would not make it necessary for the court to go into the
question as to which party was at fault before granting a decree of divorce, and it would be enough
to prove that the relations between husband and wife have reached at such a breaking point that there
is no possibility of reconciliation. This would obviate the necessity of producing evidence of
acrimony and other incidents during the married life, some of which the parties may not like to
reveal.”

The 71st report of Law commission of India also opined that, “Human life has a short span and
situation causing misery cannot be allowed to continue indefinitely.”30 The report dealt with the
important question concerning the Hindu Marriage Act, 1955, whether Irretrievable Breakdown of
Marriage can be made a ground of Divorce under the Act and if so to what extent and subject to what
conditions? The Law commission observed that restricting Divorce to matrimonial disability results
in an injustice in those cases where neither is at fault, or if the fault is of such a nature that the parties
do not wish to divulge it and yet the marriage cannot be worked out. It refers to the situation where
emotional bonding of the couple has disappeared. The sole purpose of the commission seems to take
out the marital couple from such relation which is totally dead and serving no purpose to the family
as well as society.

3.2 THE RECOMMENDATIONS OF LAW COMMISSION AND ITS IMPACT


In chapter 6 “Requirement of living apart” of 71st report of Law commission of India, the situations
from which a court can presume de facto that a marriage has been broken irretrievably are described.
Those situations are as under:

1. Agreement of separation between the married couple.

29
Id.
30
The Hindu Marriage Act, 1955, Irretrievable Breakdown of marriage as a ground of divorce, Law Commission of
India, 71st Report 1978.

18
2. Non cohabiting shall be considered as a sufficient fact to proof irretrievable breakdown of
marriage.

3. Separation for more than 5 years should be a sufficient proof.

4. When the couple is living separate during young age and do not want to reconcile, this situation
shall be considered as sufficient proof.

5. No petition for restitution of conjugal rights has been filed from either side after a continuous
separation (during the period of one year) arising out of rift, shall be a conducive ground of
irretrievable breakdown of marriage.

6. Continuous separation for the period of one year along with suspicion of misconduct, mental or
physical cruelty, from either party. Discovering adultery covering pre-marital illicit relationship
which has rendered their living together impossible.

7. If no attempt to settle the dispute relating to which the case is pending for judicial separation or
restitution of conjugal rights or Divorce for three years or more has been made by either party.

8. In some of the cases, mere submission of either party that he or she cannot live together is enough
to consider the case of marriage being irretrievably broken.

Irretrievable Breakdown of Marriage as a basis of divorce is recognized under Hindu Marriage Act,
the Parsi Marriage Act and divorce act and the special marriage act. It has been judicially legislated
upon in Muslim law also. No other personal law recognizes it.31

3.3 IRRETRIEVABLE BREAKDOWN OF MARRIAGE UNDER HINDU MARRIAGE ACT, 1955


The divorce originally was based on guilt theory, it could only be obtained if one of the parties to
the marriage was guilty of matrimonial offences and the other was innocent.32 In, 1964, by the Hindu
Marriage Amendment Act, a form of breakdown theory was introduced under Hindu

Law by modifying the last two clauses of section 13 (1), viz. Clauses (VIII) and (IX). 33 The two
clauses of section 13(1) viz. Clauses (VIII) & (IX) were modified and remembered as clause (I) &
(II) of sec 13 (1A). These clauses has been modified by the marriage laws (amendment) Act, 1976

31
Meera Bai v Rajendra Kumar Sabti, AIR 1986 Del.136.
32
Paras Diwan, MODERN HINDU LAW, Allahabad Law Agency, Faridabad (Haryana), 18th edn. 2007, p73.
33
Id.

19
under which the period of two years has been reduced to one year, Sec 13(1A) runs as: “Either party
to a marriage whether solemnized before or after the commencement of this Act, may also present a
petition for the dissolution of marriage by a decree of divorce on the ground –that there has been no
resumption of cohabitation as between the parties to the marriage for a period of one year or upward
after the passing of a decree for judicial separation in a proceeding to which they were parties; or
that there has been no restitution of conjugal rights as between the parties to the marriage for a period
of one year or upward after the passing of a decree for restitution of conjugal rights in a proceeding
to which they were parties”.34

3.4 THE 217TH REPORT OF LAW COMMISSION OF INDIA ON IRRETRIEVABLE BREAKDOWN


OF MARRIAGE

Irretrievable Breakdown of Marriage-another Ground for Divorce is taken up by The 217th report of
Law Commission of India, viewed that it shall be inserted under Hindu Marriage Act, 1955. The
report suggested that it is the need for the society that the marriages which are broken down
irretrievably or if seem to be beyond repair to the court, than it should be mandatory for the court to
dissolve such marriage on the basis Irretrievable Breakdown of marriage. The report says that
whenever a question arises as to adding the irretrievable Breakdown of Marriage as a ground of
Divorce under Hindu Law the opponents argue that the inclusion of “Divorce by Mutual Consent”
covers the situation well than what is the need to add one more Ground. But it is of the foremost
consideration that for filing the petition under, “Divorce by Mutual Consent” the consent of both the
parties is required. And if one of the parties denies cooperating, the said ground is not available. On
the other hand, the “Irretrievable Breakdown of Marriage”, is a ground on which the court can rely
and if on the facts of the case, the court concludes that, the marriage in question is beyond repair, the
court can dissolve the marriage. The divorce here would not be granted on the will of the parties but
on the basis of the court coming to the conclusion, on the facts pleaded, that the marriage in question
has been irretrievably broken down. As the Supreme Court while invoking its inherent powers to do
‘complete justice’, has granted a decree of Divorce to a district judge of West Bengal who was
married to a District Judge as they were living separately for the past 17 years. Referring to the case
the Supreme Court said, “There is no likelihood of the appellant and the Respondent living together
and for all practical purposes there is irretrievable breakdown of marriage”. 35 Irretrievable

34
Section 13 (1A,)The Hindu Marriage Act, 1955 (Act 25 of 1955).
35
Samar Ghosh v Jaya Ghosh,(2007) 4 SCC 511.

20
Breakdown of Marriage as a basis of divorce is recognized under Hindu Marriage Act, The Parsi
Marriage Act and divorce act and the special marriage act. It has been judicially legislated upon in
Muslim law also. No other personal law recognizes it.36

36
Meera Bai v. Rajendra Kumar Sabti, AIR 1986 del.136.

21
4. CONSENT THEORY
Consent theory of divorce is based on the consent of both parties to the marriage. This theory is
established against the guilt theory because if marriage is a contract based upon the free volition of
the parties then parties should have equal freedom to dissolved it.

However, marriage is a sacramental ceremony in Hindu but due to incorporation of the free consent
in section 5 of the Hindu Marriage Act provides room for this theory. Our legislation amended Hindu
Marriage Act in 1976 and inserted a new section as 13 B which provides Divorce by mutual consent
of the parties.

The very basis of marriage is mutual fidelity and if for any reason the parties feel that mutual fidelity
cannot be continued then they should have freedom to dissolve their marriage.

The main criticism of consent theory of divorce that it will bring about chaos and will lead to hasty
divorce. But it is not true because when parties to the marriage feel that they can’t live together and
it is better to end this nuptial knot then law should provide them a chance to restart their life with
new vigor.

This is just like correction of error made by the both parties to the marriage when they realise that
they cannot live together and their marriage has turned out to be bad bargain.

The ground of divorce by mutual consent was inserted in the Hindu Marriage Act 1955 by an
amendment in 1976, by adding Section 13B37. Section 13B of the Hindu Marriage Act38, 1955 runs:

(i) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce
may be presented to the district court by both the parties to a marriage together, whether such
marriage was solemnised before or after the commencement of the Marriage Laws (Amendment)
Act, 1976, on the ground that they have been living separately for a period of one year or more, that
they have not been able to live together and that they have mutually agreed that the marriage should
be dissolved.

37
Kusum, Family Law Lectures (2nd, Lexis Nexi Butterworths wadhwa, Nagpur 2007) 161
38
The Hindu Marriage Act 1955 s 13(B)

22
(ii) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub section (1) and not later than eighteen months after the
said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after
hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized
and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree.

Section 28 of the Special Marriage Act, 1954 which also deals with divorce on grounds of mutual
consent is pari materia to the above section.

The requirements which have to be met to seek divorce under Hindu Marriage Act are as follows:

(i) The parties have been living separately for a period of at least one year
(ii) They have not been able to live together, and
(iii) They have mutually agreed that marriage should be resolved.39
The Supreme Court of India in the case of Sureshta Devi v Om Prakash40 has ruled out “that the
expression living separately connotes not living like husband and wife. It has no reference to the
place of living. The parties may live under same roof by way of circumstances, and yet they may not
be living as husband and wife. What seems to be important is that they have no desire to perform
marital obligations and with that they have been living separately for a period of one year
immediately preceding the presentation of the petition.” It has been ruled out by Supreme Court in
various cases that the expression “have been living separately’ does not necessarily means physical
separation or living separately and apart what is material is that no marital obligations are performed
between the spouses and they are not living together as husband and wife.

After establishing the first requirement that the parties were living separately for one year or more,
the second point that has to be established is that the parties have not been able to live together.

In Sureshta Devi v Om Prakash41, the Supreme Court observed that expression “have not been able
to live together” seems to indicate the concept of broken down marriage so much so that there is no
possibility of any reconciliation. The parties need not establish the fact that they have not been able

39
Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008) 525
40
(1992) AIR SC 1904

41
Ibid

23
to live together. The very fact that they have presented a petition by mutual consent is indicative of
this fact that they have not been able to live together.42 However, it is very imperative to determine
whether consent given by both the parties is free and not obtained by any kind of force, fraud or
undue influence.

After satisfying the above two requirements and filing a joint petition for divorce by mutual
consent, the parties must wait for at least six months, usually termed as the “cooling period”. After
the end of this period, if the initial petition is not withdrawn by either of the parties or jointly, both
the parties may move court by way of joint motion within the stipulated period of 18 months from
the initial date of the filing of the joint petition. This period is given to parties to re-think their
decision. The following aspects of this provision have been subject to judicial interpretation.43

4.1 WHETHER THE WAITING PERIOD OF SIX MONTHS IS MANDATORY OR DIRECTORY


There have been conflicting judgements on this regard that whether the courts should mandatorily
wait for a period of six months as given in the sub section(2) of Section 13B. In the Grandhi Venkata
Chitti Abbai44 case, the court observed that- “If Section 13-B (2) is read as mandatory, the very
purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated more so
when the parties started living separately for a considerable time. Thus s 13-B (2) though is
mandatory in form is directory in substance. Likewise, in the case of Dinesh Kumar Shukla v Neeta,9it
was held that the waiting period is directory in nature and it can be brought down from 6
months(provided the mandatory requirements of s 13-B (1) are fulfilled) when all efforts at
reconciliation failed.

But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi, it was held that “the provision has a
definite purpose and object, i.e. giving time to the parties for introspection and reconciliation. That
purpose and object stares at us so clearly by the language expressed in s 13-B (2) of the Act robbing
away the right of the court from considering the petition earlier than six months.”

In the case of Ashok Hurra v Rupa Hurra45 it was held that “in exercise of its extraordinary powers
under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even
waiting for the statutory period of six months stipulated in s. 13-B of the Act. This doctrine of
irretrievable break-down of marriage is not available even to the High Courts which do not have
powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.”

42
Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008) 529
43
Kusum, Family Law Lectures (3rd, Lexis Nexi Butterworths wadhwa, Nagpur 2002) 162
44
AIR 1999 AP 91

45
AIR 2005 MP 106

24
Therefore, the courts have been inclined more towards waiving off this period if the circumstance of the
case demands so and where there is no chance of reconciliation between the parties. Also, Supreme Court
by way of its extraordinary powers as provided under Article 142 of the Indian Constitution can grant
divorce without waiting for 6 months if it is satisfied that the marriage is irretrievably broken down.
However, this power is restricted only to Supreme Court. There is still uncertainty whether High Courts
and Family Courts have to mandatorily wait for a period of 6 months. But as it is evident from many
cases where there is no possibility of reconciliation between the parties and the marriage has been
broken down irretrievably, the courts should follow the spirit of law more than the formal
requirements of the section.

4.2 WHETHER CONSENT CAN BE UNILATERALLY WITHDRAWN

There have been contrasting judgements on this issue. The controversy is that since under this section
both parties have to file a joint petition for divorce how can one party unilaterally withdraw from it.
Also, one of the purposes of giving a time period of six months is to allow parties to re-think their
decision and if one of the party decides to withdraw from it, why should it not be allowed to do so.

In Jayashree Ramesh Londhe v Ramesh Bhikaji46, the court held that once a joint petition by mutual
consent was filed, no party could withdraw from it without the consent of both the parties. Likewise,
in Nachhattar Singh v Harcharan Kaur47, it was held that- “If both the parties had voluntarily
consented to file the petition for dissolving the marriage by mutual consent and all other conditions
mentioned in sub-section (1) of section 13-B of the Act are fulfilled, it will not be open to a party to
withdraw the consent.”

On the other hand, in Sureshta devi v Om Prakash48, the Court has held that petition of divorce can
be withdrawn unilaterally. It was held in this case that if one of the parties withdraws its consent the
Court cannot pass a decree of divorce by mutual consent. The Court held that “if the decree is solely
based on the initial petition it negates the whole idea of mutuality and consent for divorce. Mutua
consent to divorce is sine qua non for passing a decree for divorce under Section 13-B. Mutual
consent should continue till the divorce decree is passed.”49

However, in a recent judgement of Supreme Court in the case of Anil Kumar Jain v Maya Jain50it
was held that- “Under the existing laws, the consent given by the parties at the time of filing of the

46
AIR 1984 Bom 302
47
AIR 1986 P&H
48
AIR 1992 SC
49
Id
50
AIR 2009 SC

25
joint petition for divorce by mutual consent has to subsist till the second stage when the petition
comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court,
which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders
to do complete justice to the parties.” The Supreme Court however clearly expressed that only use
the power under Article 142 only in special circumstances, in normal circumstances the provisions
of the statute have to be given effect to.

The law as explained in the Sushreta Devi’s case still holds good that is the parties can withdraw
consent unilaterally. But Supreme Court using its power as provided under Article 142 of the
Constitution can grant divorce even if the wife or husband withdraws its consent during the
proceedings in the lower court and prior to the passing of the decree.

4.3 WHETHER MERE SILENCE AT THE SECOND STAGE WOULD TANTAMOUNT TO


WITHDRAWAL

If the parties who have filed for divorce under mutual consent and after the end of the 6 month period
what is to be done if either of them do not turn up. Will it amount to withdrawal of consent? Rajasthan
High Court in the case of Suman v Surendra Kumar51has answered these issues. In this case the
husband after filing a joint consent petition for divorce did not appear for hearings. The family court
held that no decree could be passed in the absence of both the parties. On appeal it was held by the
court that- “When one party has himself left the matter for inference, the inference ought to be drawn
in favour of consent rather than for absence of consent.” It was held that silence cannot be taken to
amount to withdrawal of consent.

51
AIR 2003 Raj 155

26
5. INDISSOLUBILITY OF MARRIAGE THEORY
According to this theory marriage is an unbreakable tie between husband and wife. It is a union
of bone with bone and flesh with flesh. It is eternal. Even if the relations between the parties
are unhappy, they have to live and die with it. This is the theory of the shastric Hindu Law. The
marriage could be dissolved neither by the act of the parties nor by the death of one of them.
Divorce was an anathema. However, this was the law for the regenerate castes, the so called
upper three castes. The shudras and tribes recognised divorce and had their customs relating
there to.

Hindu marriage is a samskara or a sacrament. It is a necessary samskara for every Hindu and
only one for a woman. Since it is a sacrament and not a contract, it creates an indissoluble
union between the parties.Hindus have, from the very beginning of their civilization, regarded
marriage as a "sacrament", as a tie which once tied cannot be untied. The Hindus notion of
sacramental marriage differs from Christian in as much as the Hindu regards their marriage not
merely a sacrosanct and inviolable union, lent also an eternal union.

The husband is declared to be one with the wife. Neither by sale nor by repudiation is a wife
released from her husband. Once only a maiden is given in marriage.52

The wife is not just Patni (wife) but dharmapatni (partner) in the performances of duties,
spiritual; religious and other. Among the Hindus, there are many yagnas (religious and spiritual
sacrifices, rites and ceremonies) which a man without a wife cannot perform. That is why she
is called dharmpatni.53 She is ardhangani, half of her husband.54 The Vedas have ordained that
dharma must be practiced by man together with his wife. According to Vedas marriage is a
union of "bones with bones, flesh with flesh and skin with skin, the husband and wife become
as if they were one person.55 The wife was also a source of Dharma, Artha, Kama and Moksha.
In Ramayana the wife is said to be the very soul of her husband.

52
Janardan Shastri Pandey, Manusmriti, 48 (1998)
53
Ibid at 45
54
Taittiriya Samhita -III, 57; Satpatha Brahmana, v.16, 10
55
Shyama Charan Sarkar Vidya Bhushan, Vyavastha Chandrika: A Digest of Hindu Law, as Current in All the
Provinces of India Except Bengal Proper, 480 (1878)

19
As a rule, marriage was considered to be an indissoluble union. It was only some exceptional
cases that the sages allowed a woman to abandon her husband and take another. Narada and
Parasara56 mention five cases in which a woman may abandon her husband and take another :

a) when the husband is missing,

b) when he is dead,

c) when he has become an ascetic,

d) when he is impotent and,

e) when he is an out caste.57

A Hindu marriage was a sacrament in the sense that a wife could never ask for divorce, or for
another husband even if her husband was a lunatic, impotent, a leper, a deserter, chronic patient
of venereal diseases, or even a eunuch or a dead man. As regards the husband, he could always
mock at this sacrament with impunity and arrogance by taking another wife into another and
similar sacramental fold; and he could do so as many times as he liked. It is a different matter
that polygamy was not practiced by Hindus on a large scale and that it remained a privilege of
the few. Marriage being a sacrament and indissoluble union, no emphasis was placed upon the
contractual aspect of marriage. In reality Hindus did not consider their marriage as a contract.
When some reforms were introduced in India, marriage did not become a contract, rather courts
took the view that marriage of lunatics and idiots was valid.

The Hindu marriage Act abandoned the shastric position. Marriage is no more unbreakable
rope even for the regenerate caste. If the necessary conditions as given under section 13 and
13B exist, every Hindu is entitled to the dissolution of his or her marriage. The Hindu Marriage
Act is indeed a revolutionary piece of legislation from this point of view.

56
Narada Samhita- XII, 81; Parasara Samhita- X, 26-35
57
Supra note 1 at 147

20
6. WILL THEORY
According to this discreditable theory one can divorce one‘s spouse whenever one pleases.
Marriage is more difficult than divorce here, whereas the case should be just the opposite. This
theory is recognised by the Mohammedan law. A Muslim husband of sound mind may divorce
his wife whenever he so desires without assigning any ground therefore.58 He need not seek
the assistance or intermeddling of a judicial officer or of the counsel of his community.
Although the Mohammedan Law favours the husband only in

this matter, yet we can imagine a rule which gives the right to dissolve marriage at will to both
the parties. Both the theories, that marriage is unbreakable and that marriage subsists during
the pleasure of one or any of the parties thereto, touch the opposite extremes. They are alike in
one respect that both are unreasonable and unjust. The first compels a spouse to bear the yoke
of even torturous marriage also. The second makes marriage a play thing of the party entitled
to proclaim divorce at will. In the first case the lawmaker has arbitrarily made marriage a
prison. Marriage is for making a loving home, not a rigorous imprisonment, and there should
be an escape from strained relation. In the second case, a party may dissolve marriage
arbitrarily disregarding the sentiments, services, helplessness and above all, the innocence of
the other party. As the shastric Hindu Law had faith in the first theory59, the question of second
theory did not arise. The customary Hindu Law which recognised divorce among the so called
low communities also did not recognised divorce at the pleasure of any party o the marriage.
The Hindu Marriage Act gives no room to the second theory.60

58
Moonshee Buzul-ul-Raheem v. Luteefut-on-Nissa, (1861) 8 MIA 379
59
Section 13 B of Hindu Marriage Act, 1955
60
Ramesh Chandra Nagpal, ―Modern Hindu Law, Eastern Book co.

21
7. FRUSTRATION OF MARRIAGE
The wedlock may be frustrated for a party to marriage even though the other party is not
guilty of any marital offence. This may happen when he or she is suffering from mental
unsoundness or has changed his religion or renounce the world or has disappeared for a very
long period. If a person prefers a release from such a fruitless marriage he or she should be,
according to this theory helped. Divorce is a relief from this point of view. The Hindu
Marriage Act recognises these grounds as being good for divorce.

This theory is governed by Section 13 (1) (ii)- (vii) of the Hindu Marriage Act, 1955 provides
that without there being any marital offence and marriage is frustrated when one of the
spouses has changed his religion61, or incurably of unsound mind62, or suffering from any
physical ailment63, or venereal disease64, or has renounced the world65 or has disappeared for
a very long period66. In such a case the other spouse should be free to put an end to the
marriage by getting divorce.

61
See Section 13(1) (ii) of the Hindu Marriage Act, 1955 which states:
13.(1)(ii) has ceased to be a Hindu by conversion to another religion;
62
See Section 13(1) (iii) of the Hindu Marriage Act, 1955 which states:
13.(1)(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent.
63
See Section 13(1) (iv) of the Hindu Marriage Act, 1955 which states:
13.(1)(iv) has been suffering from a virulent and incurable form of leprosy;
64
See Section 13(1) (v) of the Hindu Marriage Act, 1955 which states:
13.(1)(v) has been suffering from venereal disease in a communicable form;
65
See Section 13(1) (vi) of the Hindu Marriage Act, 1955 which states:
13.(1)(vi) has renounced the world by entering any religious order;
66
See Section 13(1) (vii) of the Hindu Marriage Act, 1955 which states:
13.(1)(vii) has not been heard of as being alive for a period of seven years or more by those persons who would
naturally have heard of it, had that party been alive;

22
8.CONCLUSION AND SUGGESTION

Through this paper, we have analysed the Section 13 of the Hindu Marriages Act, 1955.
Divorce by different theories provides an opportunity of amicable resolution of disputes
between parties and saves time and money.

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there
was no provision for divorce. The concept of getting divorced was too radical for the Indian
society then. The wives were the silent victims of such a rigid system. However, time has
changed; situations have changed; social ladder has turned. Now the law provides for a way to
get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors
of such a provision are women who no longer have to silently endure the harassment or injustice
caused to them by their husbands. But the manner in which the judiciary is dealing with the
subject of irretrievable break down of marriage, it is feared that it will completely pause the
system of marriages. Every theory has its negative and positive traits. There applicability
differs from situation to situation. Therefore, it is very essential that the lawmakers of our
country should deal with the subject in a very cautious manner after considering in detail its
future implications.

Guilt theory of divorce is one of the theory which is taken in consideration by the court in
deciding divorce cases under Hindu Marriage Act. According to this theory a marriage can be
dissolved only if one spouse committed any matrimonial offence. Section 13 of the Hindu
Marriage Act enumerates grounds of divorce. This section is based upon “guilt theory” or
commonly known as “fault theory”.

This guilt theory of divorce differentiates the parties on the ground of guilt and innocence.
Innocent party has right to get divorce on the ground that other party has committed a
matrimonial offence or a guilty party. Hence, a party seeking divorce. must be innocent.

Further said that under this jurisprudential principle, it is only on the ground of an opponent’s
fault, that a party may approach a court for seeking annulment of his/her matrimonial alliance.
In other words, if either of the parties is guilty of committing a matrimonial offence, the
aggrieved party alone is entitled to divorce.

23
In the countries of the world the breakdown principle has found recognition in three forms:

(i) the determination of the question of fact whether in fact a marriage has broken down is left
to the court; if the court, in a case before it, is convinced that a marriage has broken down, it
passes a decree of divorce.

(ii) The legislature lays down the criterion of break-down and the criterion that has been laid
down in most countries is that if parties are living separate and apart for a certain duration
ranging from one year to seven years it is sufficient proof of breakdown of marriage, and a
decree of divorce may be granted at the instance of either party.

(iii) If parties are living separate for certain duration one year to two years under a decree of
judicial separation, or of a decree of restitution of conjugal rights is not complied with for
certain duration – one year to two years – the either party may seek divorce. It should be noticed
clearly that in breakdown principle of divorce culpability or guilt or innocence of either party
does not figure anywhere. A marriage is dissolved just because it has broken down.67

Divorce by mutual consent provides an opportunity of amicable resolution of disputes between


parties and saves time and money. The requirements as provided under this section are that
before filing a joint petition for divorce parties must be living separately for a period of at least
one year. As we mentioned out earlier living separately does not necessarily connotes physical
separation, what is essential is that parties are not fulfilling marital obligations and not living
as husband and wife. The second requirement is that the parties have not been able to live
together. The fact that both the parties have filed a joint petition by mutual consent is indicative
of the face that parties have not been able to live together. Only thing that is important is that
the consent has been obtained freely and not by way of force, fraud or undue influence as the
whole purpose of mutual consent will be vitiated if consent is not free. After parties have filed
a joint petition for divorce fulfilling all the requisite conditions they are given a time period of
six months and not more than eighteen months after which they have to file a second motion
and courts after hearing the parties and scrutinising the averments in the petition pass a decree
of divorce. The three points of contention are that whether the waiting period of six months is
mandatory or directory, the second is that can parties unilaterally withdraw their consent and
third that whether silence at the second stage would amount to tantamount to withdrawal. There
have been contrasting judgements on the first two issues. Different high courts have adopted

67
Paras Diwan, THE BREAKDOWN THEORY IN HINDU LAW, 1969 Lawyer (J) 192-204

24
different yardsticks in the interpretation of the Section 13-B. Some High Courts have held that
the waiting period of six months is mandatory as per the section whereas some High Courts
have adopted the spirit of law more than the technical words of the section and have ruled out
that the period is directory if there is no chance of reconciliation between the parties. However,
Supreme Court using its extraordinary powers under Article 142 of Constitution can pass the
decree of divorce without waiting for a period of 6 months. Also, Supreme Court in the case of
Sushreta Devi has ruled out that the petition of divorce can be withdrawn unilaterally. On the
third issue the courts have ruled out that silence or not appearing for hearings will not amount
to withdrawal of consent.

25
BIBLIOGRAPHY
 PRIMARY SOURCES
 BOOKS
o Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing
Co., New Delhi 2008)
o Kusum, Family Law Lectures (2nd, Lexis Nexi Butterworths wadhwa,
Nagpur 2007)
o Paras Diwan, MODERN HINDU LAW, Allahabad Law Agency,
Faridabad (Haryana), 18th edn. 2007

 STATUTES
o Hindu Marriage Act, 1955
o Special Marriage Act, 1954
o Hindu Marriage (Amendment) Act, 1976

26