Theories of Divorce Under Hindu Law

THEORIES OF DIVORCE UNDER HINDU
LAW
From the ancient times itself the Hindu Marriage was considered as a sacramental
union between the husband and wife that lasts till the death or a sacred tie which
can never be broken. Once created this sacred tie cannot be untied. Hindus
considered the separation of spouses as an act which break’s the God’s law.
Therefore they didn’t recognized separation, but after the enactment of Hindu
Marriage Act, 1955 it has laid down provisions regarding divorce. Sections 13,
13(1A), 13A, 13B, 14, and 15 deals with the divorce and related things associated
with it. According to Kautilya in Arthashatra, marriage can be dissolved by mutual
consent in an unapproved form of marriage. On the other hand, Manu believed that
marriage being a sacrament cannot be discontinued and the fidelity between the
husband and the wife should be carried till their last breaths. However, the
conditions changed after divorce was introduced under Hindu Marriage Act,
1955.
What is Divorce under Hindu Law
Divorce means putting an end to the marriage by dissolution of marital relations. It

is the legal dissolution of a marriage by a court or any competent court. After
divorce parties can no longer be husband and wife. The decree of divorce allows
each of the parties to have fresh marriages as they like. In the modern days divorce
is allowed for the spouses if they cannot live in compromise to each other. In
Hindu law, divorce is governed by Hindu Marriage Act, 1955. The following
sections of the act deals with divorce:
i. Various grounds on which divorce can be claimed under Section 13,
ii. Additional grounds for Hindu wife who can claim divorce under Section
13(1A),
iii. Alternate reliefs in divorce proceedings under Section 13A,

iv. Divorce by mutual consent under Section 13B,
v. Presentation of petition for divorce under Section 14,
vi. Divorced persons when marry again under Section 15 of the act.
Theories associated with Divorce under Hindu law
There are various theories associated with divorce in Hindu law they are:
1. FAULT OR GUILT THEORY
This theory is based on the 19th century concept where the society considered
divorce as an evil concept. If one of the parties has committed a sin or a
matrimonial offence such as adultery, cruelty, rape, desertion, bestiality, refusal to
obey the court order for maintenance, marrying an underage person then that
marriage can be dissolved on the basis of these grounds.
The divorce is granted only on the basis of these matrimonial offences. Even if the
defendant have committed other heinous offences it will not exist as a ground for
divorce. There are mainly two parties included in the fault theory one is the guilty
party (who has committed the matrimonial offence) and other is the innocent party
(who is the aggrieved party).
The major drawback of this theory is that if both the parties are at fault no divorce
can be granted and also if the innocent party forgives the act of guilty party no
divorce will be granted. The divorce legislation in India is based on ‘fault theory’
that is no party should take advantage of his/her own fault [1]. Most of the grounds
for judicial separation and divorce which are contained in Hindu Marriage Act,
1955 is based on this theory. The various grounds for divorce based on this theory
are Adultery, Cruelty, Desertion, [2] Rape, Bestiality, and Maintenance to wife [3].
2. FRUSTRATION THEORY
In this theory the concept of divorce is a relief from frustration. Frustration can
occur to the spouses due to various reasons. The feeling of deep anguish,
disappointment, and frustration in one spouse caused by the conduct of other for a
long time may lead to mental cruelty [4]. According to this theory either of the
spouse can put an end to the marriage on the basis of mental disorder, any physical
ailment, conversion of religion, renunciation of world, and unheard for a very long
period of time. Only these factors remains as the ground for divorce and any type
of marital offences will not include in this theory.
If a person prefers for divorce on the above mentioned causes it is considered as a

valid ground under this theory. The Hindu Marriage Act 1955, considers
Apostasy(conversion of religion), Unsoundness of mind, Renunciation of world [5]
as valid grounds for divorce.
3. MUTUAL CONSENT THEORY
In this theory divorce is obtained by the spouses for their own good. According to
this theory the spouses by mutual consent can put an end to the marriage without
any arguments. The husband and wife can jointly file a petition for divorce. They
can move out of the marriage in free will. The essential ground for divorce under
this theory is mutual consent to dissolve the marriage, that is free consent of both
parties without any compulsion is needed.
The Supreme Court has observed that the mutual consent should continue till the
divorce decree is passed and the court should be satisfied with the bonafide consent
of the parties [6]. The disadvantage of this theory is that the spouses may decide to
dissolve the marriage on collusion and on small causes or immediate temperament.
Divorce by mutual consent was not included in the original Hindu Marriage Act,
1955 but later it was amended and got included in the act [7].
4. IRRETRIEVABLE BREAK DOWN THEORY
If any failure in matrimonial relationships or any other such irretrievable

circumstances arises and the spouses in no probability can’t live together a
breakdown occurs in the marriage. In such a situation the spouses can opt for
divorce. According to this theory, after breakdown if the court finds that the
spouses cannot live together or is beyond repair, the husband and wife is allowed
to live separately for a definite period of time without any communication and
emotional attachment.
After this period of time they can decide to get divorced, such type of marriages
may be dissolved without any delay even if one of the party desires to get divorce.
The main idea behind this theory is to reduce the number of unhappy marriages in
the society. The major drawback of this theory is that the spouses can obtain
divorce easily and it gives an advantage to the guilty party.
The Supreme Court has observed that irretrievable breakdown of marriage is not a
ground for divorce under Hindu Marriage Act, 1955 and made recommendation to
make it as a ground for divorce [8]. In the Hindu Marriage Act, 1955 an attempt
has been made to introduce this theory as no resumption of cohabitation after
decree of judicial separation [9] and no compliance with decree of restitution of
conjugal rights [10].
CONCLUSION
The Hindu Marriage Act, 1955 have made major reforms in Hindu law. It has
brought changes in the concept of marriage. Earlier the divorce was considered as
a sin but the codified law have brought changes in the concept. If a marriage
become unhappy the spouses can seek for divorce. In Hindu law the Fault theory,
Frustration of marriage theory, Mutual consent theory are acknowledged and
divorce can be obtained by the grounds mentioned in them.
The Supreme Court has made recommendations in many cases to include the
Irretrievable break down as a special remedy in the Hindu Marriage Act, 1955
because sometimes it is very difficult to the parties to get divorce due to some
loopholes. Also the Law Commission Of India in its 71st report has made a detail
analysis of this theory and how to incorporate it in the law. In India only the
Special Marriage Act, 1954 recognize the irretrievable breakdown as a ground for
divorce.
REFERENCES
1. Munish Kakkar v. Nidhi Kakkar, 2019
2. Section 13(1) of Hindu Marriage Act, 1955

3. Section 13 (1A) of Hindu Marriage Act, 1955
4. Samar Ghosh v. Jaya Ghosh, 2007
5. Section 13 (1) of Hindu Marriage Act, 1955
6. Sureshta Devi v. Om Prakash, AIR 1992 SC 1904
7. Section 13(B) of Hindu Marriage Act, 1955
8. Naveen Kohli v. Neelu Kohli, 2006
9. Section 13 (1A) (i) of Hindu Marriage Act, 1955
10. Section 13 (1A) (ii) of Hindu Marriage Act, 1955

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THEORIES OF DIVORCE UNDER HINDU

What is Divorce under Hindu Law

Divorce means putting an end to the marriage by dissolution of marital relations. It

i. Various grounds on which divorce can be claimed under Section 13,

iii. Alternate reliefs in divorce proceedings under Section 13A,

v. Presentation of petition for divorce under Section 14,

Theories associated with Divorce under Hindu law

1. FAULT OR GUILT THEORY

If a person prefers for divorce on the above mentioned causes it is considered as a

3. MUTUAL CONSENT THEORY

4. IRRETRIEVABLE BREAK DOWN THEORY

If any failure in matrimonial relationships or any other such irretrievable

1. Munish Kakkar v. Nidhi Kakkar, 2019

2. Section 13(1) of Hindu Marriage Act, 1955

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