This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article talks about the meaning and theories of dissolution of marriage, forms and grounds of divorce under the Hindu law.
In Hindu law, the marriage is a sacramental union, where two people take vows and reside together, followed by all the cultures of the Hindu religion. But, sometimes either by the misconduct of any of the partners or by mutual consent of both the partners, the marriage can be dissolved. In early times, the marriages were unbreakable or indissoluble. But with time, as the matrimonial offences became the cause for unhappy marriages, then need was felt to end the unhappy marriages.
Dissolution of marriage is just another form of divorce basically. It can be done in either of the two ways: fault theory and no fault theory. In the fault theory, the marriage is dissolved on the basis of misconduct by one partner. And, in no fault theory, the parties mutually agree to live separately by dissolving the marriage. And, in most cases, the marriage is dissolved due to the no fault theory of dissolution. Further in the article, theories, grounds and forms of divorce are discussed.
The theories of dissolution of marriage are listed below:
- Fault or Guilt theory- In this theory, one of the parties of marriage commits a matrimonial offence. Matrimonial offences like Adultery, Cruelty and Desertion are the main roots that frustrate the marriage. In early times, adultery was the major transgression that led to the dissolution of marriages. Cruelty became a matrimonial offence because it undermines the very purpose of marriage that partners will in harmony and peace together. Desertion destroys the basic assumption that the partners will cohabit with each other. In this guilt theory, there has to be one guilty and one innocent person. This theory lays down that the person who is seeking divorce is the innocent party. The dissolution takes place by punishing the guilty person.
- Consent theory- This theory is based on the principle that if the parties can enter into the marriage with their mutual consent, then they can also dissolve the marriage by their mutual consent. Sometimes, the parties may realise that they made a mistake by entering into the marriage and maybe they want to end their marriage by their mutual desire. Or parties may realise that their married life is not happy or on the account of their incompatibility of temperament or because of any other reason by which they can not live together happily. The protagonists of this theory hold that by dissolving the marriage with mutual consent, it will bring out the happy marriages and reduce the number of unhappy marriages. This theory was criticised on the basis, that it leads to chaos in the family and hasty divorces. This theory is also mentioned in the Hindu Marriage Act, 1955, under section 13B.
- Irretrievable Breakdown theory- This theory is the most controversial theory. According to this theory, the marriage unites two persons on the basis of love, affection and respect for each other. And if any of these is destroyed and their marriage has come to an extent where it can be repaired, that is the point when the spouses can not live together with peace and harmony. And then there is no point left to take that marriage further. This theory is presumed de facto. The fact that parties are not living together with or without any reasonable excuse, shows that parties are unwilling to live with each other. This breakdown theory is not a ground for divorce under the Hindu Marriage Act and Special Marriages Act. But, Supreme Court in a recent judgement in October 2019, ruled that divorce can be granted if a marriage is totally irreparable and emotionally dead. The facts of the case were that the husband and the wife were living separately from the last 22 years. And his petition for the divorce was rejected by a district court and Andhra Pradesh High Court because the wife did not agree to give consent to dissolve the marriage. The court invoked the powers of Article 142 of the Indian Constitution to grant divorce on the basis of this theory. This will only apply in cases where one of the parties does not agree for the divorce.
Forms of Divorce
The three different forms of divorce are dissolution of marriage, judicial separation and annulment.
1. Dissolution of Marriage – In this, the person desiring for divorce usually end up filing it. This can be done if any party has committed any matrimonial offence, then the innocent party can claim for divorce in the respective court. And, also if both the parties by their mutual consent agree to end the marriage, then by following all the procedures, the parties can be divorced.
2. Judicial Separation– The judicial separation is mentioned in the Hindu Marriage Act, 1955, under Section 10. It describes that the husband and wife decide to live separately and might not claim for divorce. They may file for judicial separation with divorce or judicial separation, may further lead to divorce. The couples take this step because of some religion or custom by which they do not want to get divorced. So, they can live separately by the order of judicial separation.
3. Annulment– In annulment, the court declares that the marriage never existed. Like, if any marriage occurred at a minor age of any of the partner or if either of the partners is already married to someone else. This annulment is only possible when the marriage was not legal at the very first age. The conditions for a valid marriage are described under section 5 of the Hindu Marriage Act, 1955, under that the conditions like the majority of the age and the spouse should not be married to someone else are violated, then the marriage can be annulled.
Grounds for Divorce
As mentioned in the Hindu Marriage Act, 1955 under section 13, there are several grounds, on which divorce can be granted. It lays down ground like adultery, cruelty, desertion, conversion, insanity, incurable leprosy, venereal disease, renunciation of the world. Also, there are some grounds on which, the female can alone sue or end the marriage, like husband, since the solemnisation of the marriage, is guilty of rape, sodomy, bestiality, cohabitation not resumed for one year, marriage of the wife took place when she was 15 and repudiated the marriage before she attained the age of 18 years and the husband has married more than one wife before the commencement of this act.
- Adultery- This offence, though decriminalised under Indian Penal Code, but is still a ground for divorce. It occurs basically when the respondent comes into voluntary sexual contact with other person, after the solemnisation of the marriage between the respondent and the petitioner. The burden of proof of adultery lies on the petitioner, to prove the adultery by the respondent.
- Desertion- It is one of the grounds for divorce or judicial separation. If the respondent runs away for two years then the decree of judicial separation or divorce may be passed by the court by the consent of the parties. Also, if the respondent deserts away for 7 years, then he will be considered as dead and ultimate and obvious divorce decree will pass. If the desertion is done for some reasonable cause, then the respondent can not be held liable. So, there should be no reasonable cause for desertion.
- Cruelty- It is the ground of divorce as well as judicial separation. Also, it is one of the most difficult matrimonial crime to define. Cruelty can be both mental and physical. If the acts of the respondent or his family members harm the petitioner, then the divorce can be granted on the basis of cruelty. In India, it is basically done for the demand of dowry, false accusation of adultery or if the partner refuses to have marital intercourse.
- Insanity- If the insanity of a person is incurable for more than 2 years, then the divorce may be granted.
- Leprosy- Leprosy is given as a ground for divorce as well as for judicial separation. But the duration of leprosy is not defined in the Hindu Marriage Act, it only describes it to be virulent and incurable.
- Venereal diseases- The Hindu Marriage Act, lays down this venereal diseases as the ground for divorce and judicial separation and it should be in a communicable form. The duration of the disease is not mentioned. And it is immaterial that the disease is curable or was contracted innocently
- Conversion to a Non-Hindu religion– The requirement to get divorce on this ground is that the respondent has ceased to be a Hindu and has converted to another religion. If at the time of marriage, the person was Hindu and ceased to be a Hindu after the marriage, then the decree of divorce will be passed by the competent court.
- Renunciation of the World- The respondent should have been known to renounce the world by entering into any religious order and leaving behind his wife and family. Then the divorce will be granted.
In Hindu law, there are various forms of divorce. If the partners in a marriage are not living happily, they can file for divorce or file for judicial separation. The various grounds mentioned above can help to dissolve the unhappy marriages.