Theories of Divorce under Hindu Law
Theories of Divorce under Hindu Law
1. Fault Theory
Concept: Divorce is granted on the basis of fault or wrongdoing by one spouse.
Example: If one spouse commits adultery, cruelty, desertion, or any other act listed as grounds for divorce, the other spouse can file for divorce.
Application in Hindu Law: The Hindu Marriage Act, 1955, recognizes fault grounds such as cruelty, adultery, desertion, conversion, mental disorder, etc., as reasons for divorce.
Rationale: Protects the innocent spouse and discourages misconduct.
2. No-Fault or Irretrievable Breakdown Theory
Concept: Divorce is allowed simply because the marriage has broken down beyond repair, regardless of fault.
Application: This theory is not explicitly recognized in the Hindu Marriage Act, but it is often argued in courts under the concept of mutual consent divorce (Section 13B).
Rationale: Recognizes that sometimes relationships fail without specific blame and aims to avoid prolonged litigation and hardship.
3. Consent Theory
Concept: Divorce can be granted with the mutual consent of both parties without proving any fault.
Application: Under Section 13B of the Hindu Marriage Act, both spouses can jointly file for divorce by mutual consent if they have been living separately for at least one year and consent to dissolve the marriage.
Rationale: Provides a less adversarial and more amicable way to end a marriage.
4. Fault-Neutral or No-Fault Separation Theory
Concept: Divorce may be granted on the basis of separation or incompatibility without attributing fault.
Application: While separation is a recognized ground under Section 13(1)(ib) of the Hindu Marriage Act, it generally requires continuous separation for 2 years or more.
Rationale: Encourages recognition of the practical reality of a failed marriage.
Summary Table
| Theory | Basis for Divorce | Grounds Allowed | Examples/Sections in Hindu Marriage Act |
|---|---|---|---|
| Fault Theory | Misconduct or wrongdoing of one spouse | Adultery, cruelty, desertion, etc. | Sections 13(1)(i) to 13(1)(vii) |
| No-Fault / Irretrievable Breakdown | Breakdown of marriage without fault | Mutual consent or continuous separation | Section 13B (Mutual Consent), Section 13(1)(ib) (2 years separation) |
| Consent Theory | Mutual agreement | No fault necessary | Section 13B |
| Fault-Neutral / No-Fault Separation | Separation or incompatibility without blaming | Separation for 2 years | Section 13(1)(ib) |
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