The Philosophy of Divorce in Indian Legal Context: A Study of Theories of Divorce
A divorce is a court judgment ending a marriage. The court requires a “legal reason” for the divorce. In addition to legally ending of the marriage, the court looks at other issues which need to be decided before the divorce becomes final. 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 served in any way. It, therefore, follows that the textual Hindu law does not recognize a divorce. Although Hindu law not contemplates divorce yet it has been held that where it is recognized as an established custom it would have the force of law. Under Muslim marriage: concept of divorce-we all are know that the husband and wife is necessary condition for a happy family-life. Islam therefore, insists upon the subsistence of marriage and prescribes that breach of the marriage- contract should be avoided. Initially no marriage is contract to be dissolved in future, but in unfortunate cases the take place and the matrimonial contract is broken. A marriage may dissolve:
- By act of God;
- By act of parties.
With the advance in socio-economic conditions, the concept of marriage has also changed. The spouses are more self- reliant and independent than they used to be before. The spirit of forced tolerance of yesteryears is disappearing. They are prepared to live separately rather than stay united while unhappy. It can be seen that the inclusion of section 13(1-A) in the needs of the time. In the same way, irretrievable breakdown of marriage should also be made a ground for divorce by amending the law to enable parties whose marriage is irretrievably broken down. This will be in consonance with English law. Moreover, if there is a special provision in the statute, the courts would be relived of the task of reading into the already existing provisions something new or interpreting the statutory provisions and thereby inviting strictures. Moreover, family relations always depend on the understanding and faith between the spouses and once it is broken, the very existence of the family is in question. The best course in such cases would be to set them free of the bond, which does not serve and purpose at all.
Over the years there has been a sea change in social thinking in the matter of relations between husband and wife. The desire and determination to live separately rather than to remain united in an unhappy marriage is gaining acceptance in our society. The law commission of India has also in its 71st Report on the Hindu Marriage Act, 1955 has adverted to this aspect.
Due to existence of diverse religious faiths in India, the Indian Judiciary has implemented laws separately for couples belonging to different religious beliefs.
- The Hindu Marriage Act, 1955
- The Parsi Marriage and Divorce Act, 1936
- The Dissolution of Muslim Marriage act, 1939
- The Special Marriage Act, 1956
- The Foreign Marriage Act, 1969
The Hindu Marriage Act,1955 originally recognized the fault grounds for obtaining the decree of divorce. For this purpose, nine fault grounds were mentioned in the Act. Sec. 13(1) lays down these fault grounds, on which either the husband or wife could sue for divorce. Two fault grounds have been dealt with in the sec. 13(2), on which wife alone could seek the decree of divorce. In 1976, the grounds for divorce by mutual consent have been recognized through provision of the section 13 (B) of the Hindu Marriage Act,1955.
The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955.The Act recognizes various theories of Divorce.
Under the ‘fault theory’, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty and an innocent party and only innocent party can seek the remedy of divorce. However, the most striking feature and drawback is that if both parties have been at fault, there is no remedy available. Another theory of divorce is that of ‘mutual consent’. The underlying rational is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will. However, critics of this theory say that this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of temperament. Some of the grounds available under Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances. These include civil death renouncement of the world etc.
Prior to 1976 Divorce only on the basis of fault theory it means marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. But now Divorce can also be obtained on the basis of no fault theory, it means divorce can obtain by the mutual consent of the parties to marriage under the marriage laws (Amendment) Act, 1976. According to section 13-B (1), such a petition is required to be moved jointly by the parties to marriage on the ground that they have been living separately for a period of one year or more and they have not been to live together and also that they have agreed that marriage should be dissolved.
As per section 13-B (II) of the Act lays down that on the motion of both the parties made no earlier than six months after the date of the presentation of the petition referred to in sub-section (I) given above 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 averments in the petition are true, then pass a decree of divorce, declaring the marriage to be dissolved with effect from the date of decree.
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 note taking advantage of his own wrong, and if they found culpability in him, they refused the relief. 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 wrong. 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.
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, should be reduced to one year. 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 or 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.
The basic postulate of breakdown theory is that if a marriage had broken down without any possibility of repair (or irretrievably) then it should be dissolved, without looking to the fault of either party. The breakdown theory holds the view that “what we are concerned with is the fact of breakdown of marriage; if a marriage has broken down irretrievably, and then divorce should be granted, as there is no use in retaining the empty shell.” Thus, the law recognizes an unhappy situation and says to the petitioner: “If you can satisfy the court that your marriage has broken down irretrievably, and that you desire to terminate a situation that has become intolerable to you, then your marriage shall be dissolved whatever may be the cause.”
In a landmark judgment, the Supreme Court held that situations causing misery should not be allowed to continue indefinitely, and that the dissolution of a marriage that could not be salvaged was in the interests of all concerned. In Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675. the parties were married in 1975 and after a few years, the marriage turned sour. There were allegations of cruelty, adultery and other types of misbehaviour from both the parties against each other. Wife initiated several civil and criminal proceedings against husband indicating her resolve to make his life miserable. Husband also initiated some legal proceedings and was living separately from the wife for more than ten years. Thus, it was evident from the facts of the case that the marriage has been wrecked beyond redemption. The trial court stated that though both the parties have levelled allegations of character assassination against each other, they failed to prove the same. According to the court, the allegations were of such serious nature that there was no cordiality left between the parties and no possibility to reconnect the chain of marital life between them. Hence, it found that there was no alternative but to dissolve the marriage between the parties. The high court took the stand that the trial court erred in granting a divorce to the husband without properly appreciating the evaluating the evidence on record. In appeal, the Supreme Court while analyzing the concept of irretrievable break down of marriage discussed other issues also like physical and mental cruelty in matrimonial matters. The court came to the conclusion that where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. When the marriage becomes a fiction, the legal tie has to be severed.
A look at the provisions of the Hindu Marriage Act, 1955 reveals that most of the grounds under sub-sections (1) and (2) of section 13 are based on fault or guilt theory of divorce. According to this theory a marriage can be dissolved only if one of the parties to marriage has committed some matrimonial offence recognized as a ground for divorce. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are open with concrete instances of human behaviour as to bring the institution of marriage into disrepute. Once a marriage has broken down beyond repair, it would be unrealistic for the law not to take note of that fact, as it would be harmful to society and injurious to the interest of the parties. There is also a provision for obtaining divorce by natural consent under section 13-B and section 14, which is based on the consent theory of divorce.
A marriage could be broken down on account of fault of either party or both parties or on account of fault of neither party. It may happen that relations of husband and wife became so strained that they stopped living with each other. In such a situation, it is desirable that the relationship is brought to an end by a decree of divorce on the ground of irretrievable breakdown of marriage without fixing any responsibility on either party in the interest of both the parties and also the society. It is good to give de jure recognition to what exists de facto to enable them to resettle their life.
However, in the absence of legislative recognition to this ground, the apex court has been granting relief to the parties by exercising its plenary powers under Article 142 of the Constitution of India.
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.
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.
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.
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.
“Under the general uncodified Hindu Law, divorce was not recognized, it was rather unknown to the old textual Hindu Law of Marriage. The reason is very simple that a marriage was undissoluble tie between the husband and wife. Divorce was thus not recognized unless it was allowed by custom. Section 13 therefore introduces a vital and dynamic change in the marriage
law of Hindus.”
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 theory8, 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 of the marriage. The Hindu Marriage Act gives no room to the second theory.
- In Darshan Gupta vs. Radhika Gupta, reported in Supreme Court of India in Civil Appeal Nos.6332-6333 of 2009 decided on 01.07.2013, wherein it is held that:
“A perusal of the grounds on which divorce can be sought under Section 13(1) of the Hindu Marriage Act, 1955, would reveal, that the same are grounds based on the ‘fault’ of the party against whom dissolution of marriage is sought. In matrimonial jurisprudence, such provisions are founded on the ‘matrimonial offence theory’ or the ‘fault theory’. 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. The party seeking divorce under the “matrimonial offence theory” / the “fault theory” must be innocent. A party suffering “guilt” or “fault” disentitles himself/herself from consideration. Illustratively, desertion for a specified continuous period, is one of the grounds for annulment of marriage. But the aforesaid ground for annulment is available only, if the desertion is on account of the fault of the opposite party, and not fault of the party which has approached the Court. Therefore, if a husband’s act of cruelty, compels a wife to leave her matrimonial home, whereupon, she remains away from the husband for the stipulated duration, it would not be open to a husband to seek dissolution of marriage, on the ground of desertion. The reason being, that it is the husband himself who was at fault, and not the wife. This is exactly what the respondent has contended. Her claim is, that in actuality the appellant is making out a claim for a decree of divorce, on the basis of allegations for which he himself is singularly responsible. On the said allegations, it is Darshan Gupta, who deserves to be castigated. Therefore, he cannot be allowed to raise an accusing finger at the respondent on the basis of the said allegations, or to seek dissolution of marriage, thereon.”
“There is no dispute between the rival parties, that after Radhika Gupta’s first conception was aborted in June, 1999, the attending gynecologist at Apollo Hospital, had cautioned the couple against any further conception for at least two years. The couple had been advised, that pregnancy of Radhika Gupta during this period could lead to serious medical complications. Radhika Gupta alleges, that her husband had proceeded with unsafe cohabitation, leading to her second pregnancy, within a short period of eight months (after the abortion in June, 1999), i.e. well within the risk period. Clearly contrary to the medical advisory. The truth of the second conception, cannot be disputed, in view of the overwhelming supporting evidence on the record of the case. The conception could have only occurred because of, unprotected sexual indulgence by Darshan Gupta. The medical condition of Radhika Gupta, was for one and only one reason, namely, the second conception of Radhika Gupta, during the unsafe period. Clearly, the blame thereof, rests squarely on the shoulders of Darshan Gupta. The instant conclusion is difficult to assimilate. Yet, there can be no doubt about the truthfulness thereof. It is in this view of the matter, that the submissions advanced at the hands of the learned counsel for Darshan Gupta, have been vehemently opposed. The unambiguous contention of the learned counsel for the respondent is, that the grounds/facts on which divorce is sought by the appellant, are not at all available to him under the “fault theory” on which Section 13(1) of the Hindu Marriage Act, 1955, is founded.”
“We are persuaded to accept the submission noticed in the foregoing paragraph. There can be no doubt, that all the grounds/facts on which divorce has been sought, emerge from the medical condition of Radhika Gupta, after her cesarean operation in September, 2000. The symptoms during her first pregnancy were such, that the couple was advised not to conceive for a period of two years. The husband did not heed to the advice tendered by the attending gynecologist. We are, therefore, inclined to fully endorse the view expressed by the Family Court, that the appellant- husband Darshan Gupta himself, was responsible for the state of affairs of his wife-Radhika Gupta, inasmuch as he did not heed the advice of gynecologist after the abortion of her first pregnancy in June 1999. There is no serious dispute, that to satisfy his desires, he impregnated his wife within a period of eight months, i.e., well within the risk period. Therefore, she suffered the predicted consequences. The medical condition of Radhika Gupta, on which the appellant basis his claim for divorce, is of his own doing. Even though at that juncture, Darshan Gupta was merely 25 years of age, and it may well be difficult to blame him, yet there is no escape from the fact, that the fault rests on his shoulders. In the above view of the matter, it is not possible for us to conclude, that Darshan Gupta did not suffer from any “guilt” or “fault” in the matter. It is, accordingly, not possible for us to accept, that he can be permitted to use his own fault to his advantage. His prayer for divorce on the facts alleged, is just not acceptable. The party seeking divorce has to be innocent of blame. We are satisfied, that the grounds/facts on which a claim for divorce can be maintained under Section 13(1) of the Hindu Marriage Act, 1955, are clearly not available to the appellant Darshan Gupta in the facts and circumstances of this case. For the instant reason also, the prayers made by the appellant must fail.”
“Since we were not agreeable with the contention advanced by the learned counsel for the appellant, on the plea of irretrievable breakdown of marriage, learned counsel sought the same relief, for the same reasons, by imploring us to invoke our jurisdiction under Article 142 of the Constitution of India, and to annul the marriage between the parties, as a matter of doing complete justice between the parties.”
- In Smt. Gopi Bai vs Govind Ram, reported in AIR 2007 Raj 90, decided by Rajasthan High Court on 5 February, 2007, wherein it is held that:
“Marriage is a sacred bond entered into by the husband and the wife. Both are duty bound to ensure the solidity of the institution. They should make an endeavor to live in peace and harmony. In case either one of them breaks the bond, the erring party cannot be allowed to take advantage of his/her own wrong. To allow the erring party to take advantage of his/her own wrong is to motivate people to dilute and destroy the institution of marriage. Since the family is the basic unit of any society, it is imperative that the family be protected and promoted by the two spouses. The Courts of law are also bound to protect and promote the family as a social unit. Therefore, the Courts are duly bound to consider as to who is in fault while considering a petition for divorce. Section 23 of the Act merely imports “the fault theory” in divorce cases.”
- In Sreenivasan vs Shylaja reported in Mat.Appeal No.96 of 2004(1) decided by Kerala High Court on 10 February, 2009, wherein it is held that:
“The evidence would suggest that cruelty was being meted out by the wife, but she did not agree for divorce. Can a person who is at fault take shelter on his own fault to obtain a decree for divorce? To our mind it appears that a party, who, caused mental cruelty to the wife is not entitled for dissolution of marriage taking advantage of his own fault especially when the respondent wife is not prepared to have a divorce despite the fact that she was not treated well by her husband.”
- In Samar Ghosh vs Jaya Ghosh, reported in Appeal (civil) 151 of 2004 decided by Supreme Court of India on 26 March, 2007, wherein it is held that:
“Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute.”
The 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. 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. However, to prevent hasty divorces, the law lays down certain restrictions and grounds for obtaining a divorce.