THEORY OF DIVORCE by MAHEK UPADHAYAY @LexCliq

It was for the first time in 1857, England recognizes the divorce. For a long time adultery was a ground of divorce, then cruelty and desertion were added. And these three were the only grounds of divorce for considerable time. The grounds of Divorce may be looked at from two aspects: (1) Marriage is an exclusive union and if it is not an exclusive union, it ceases to be marriage. Adultery destroys the very foundations of marriage (2) Grounds of adultery, cruelty and desertion are the matrimonial offences committed by one of the parties to marriage. Thus, in that sense, Divorce is regarded as mode of punishing the guilty party who had rendered himself or herself unworthy of consortium.

OFFENCE or GUILT THEORY OF DIVORCE

According to this theory, marriage can be dissolved only if one of the parties to marriage has, after the solemnization of the marriage, committed some matrimonial offences. This implies that the parties, though free to enter into wedlock, are not equally free to get out of it. The marriage could be dissolved only on grounds prescribed by law. Under English Law, 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. English law later evolved the doctrine of matrimonial bard but have abandoned the same.

Originally, the Hindu Marriage Act incorporated the guilt or fault theory and laid down that there must be a guilt party and an innocent party. The Act had a conservative stance. All the three traditional grounds- adultery, cruelty and desertion were made grounds of judicial separation and not of divorce. Under s 13 nine grounds of divorce were recognized on which the wife alone could seek divorce. Section 23 of the Hindu Marriage Act deals with the matrimonial bars. 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 grounds of relief beyond reasonable doubt. Even after the amendment of 1964 (which introduced the breakdown theory of divorce) and of 1976 (which introduced consent theory of divorce), the faults  grounds  of divorce and the bars to matrimonial relief are still part of Hindu Law of Divorce.

CONSENT THEORY OF DIVORCE 

The protagonists of this theory hold the view that parties to marriage are as free to dissolve a marriage as they are to enter it. The argument may be summed up thus: It may happen that two parties who have entered into a marriage with free consent, may, later on, realize that they made a mistake, and, for one reason or another, are finding it difficult to pull on together smoothly and to live together harmoniously. It is not because they are wicked, bad or malicious people. They are just ordinary average human beings, but it has just happened that their marriage has turned out to be bad bargain, and they find it impossible to continue to live together. In short, continuance of such a marriage is neither in the individual nor in the social interest. Thus, it is argued, that freedom of marriage implies freedom of divorce, then and then only can mutual fidelity continue, can real monogamy exist.

Divorce by mutual consent means that the law recognizes the situation that has existed for some time and in effect says to the unhappy couple. “If you think that your marriage cannot continue and if you both are convinced that it should be dissolved, the marriage will be dissolved.” Section 28 of Special Marriage act, 1954 and Section 13-B of Hindu marriage Act, 1955 (after amendment of 1976) recognize divorce by mutual consent.

IRRETRIEVALE BREAKDOWN OF MARRIAGE THEORY OF DIVORCE

The Guilt Theory of divorce has been found deficient as it recognizes divorce only on certain specified grounds. The consent theory has been found wanting as it either makes divorce too easy or too difficult. the problem that the modern law faces is that if a marriage has in fact broken down irretrievably, may be on account of fault of neither, then, is there any sense in continuing such a union? If you satisfy the court situation that your marriage has broken  down, and that you desire to terminate a whatever may be the cause. Thus, if a marriage has broken down beyond all possibilities of repairs, then it should be brought to an end, without looking into the causes of breakdown and without fixing any responsibility on either party.

In the modern law, the irretrievable breakdown of marriage theory has found its way in two modes:

  1. If a marriage has broken down beyond any possibility of repair then it should be dissolved. the legislature does not lay down any criterion on which a marriage may be deemed to have broken down. It leave it to the court to find out whether a marriage has in fact broken down or not each individual case.
  2. the legislature lays down the criterion of breakdown of a marriage and if that is established, the courts have no option but to dissolve the marriage. Another version of this from breakdown theory is the one which requires that before a petition is presented, the parties must have lived apart from each other for some specified period.

In Hindu law, the breakdown theory has it won version. Under the Hindu Marriage Act 1955 divorce can be obtained by either party: (a) If it is shown that cohabitation has not been resumed for a period of one year or more; (b) if it is  shown that cohabitation has been resumed for a period of one year or more after passing of the decree for judicial separation. 

The Law Commission in its 71st Report has recommended that irretrievable breakdown of marriage should be a ground of divorce for Hindus. It suggests the period of three years separation as a criterion of breakdown. On the basis of the Report, the Marriage Laws (Amendment) Bill, 1981 was introduced on Parliament, but was allowed to lapse on account of opposition by some women’s organizations.

 

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