Theories of Divorce Under Hindu Law
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Divorce means dissolution of marriage by
competent authority.
Which was unknown to the ancient hindu law as
the institution of marriage was considered as
sacramental and eternal union which could not
be dissolved.
It was introduced after codification of hindu law.
The term divorce is derived from the latin
word “divortium” which means to turn aside or
to separate or it can be understood simply legal
termination the matrimonial bond between
husband and wife.
Section 13 of Hindu marriage Act, 1955 deals
wit it.
The fault theory is also been known as the offences
theory or the guilt theory.
The existence of guilt (commission of matrimonial
offence) of one party and innocence of other is
essential.
Only the innocent party can seek remedy of divorce
under this theory.
Whereas no remedy will be available if both the
party of marriage is in fault.
The Mutual consent theory is the second
theory of divorce.
The rationale behind it is that since two
persons can marry by their free will, they
should also be allowed to move out of the
relationship of their own free will.
This theory is criticized on the ground that it
will promote immorality as it might leads to
hasty divorces on slight incompatibility too.
The theory of irretrievable breakdown of the
marriage is third theory of divorce.
The breakdown of marriage is defined as :
“such failure in the matrimonial relationships or
such circumstances adverse to that relationship
that no reasonable probability remains for the
spouses again living together as husband & wife.”
Such marriage should be dissolved with maximum
fairness & minimum bitterness, distress &
humiliation
.
All the three theories of divorce are recognized
under modern hindu law.
Divorce can be obtained on the basis of any one of
them.
The
Hindu Marriage Act, 1955
originally, based
divorce on the fault theory, and enshrined nine fault
grounds in
Section 13(1)
which can be invoked by
either party of marriage.
Two fault grounds in
Section 13(2)
on which wife
alone could seek the divorce.
In 1964, by an amendment, certain clauses of
Section 13(1) were amended in the form of
Section 13(1A), thus recognizing two grounds of
the breakdown of the marriage.
The 1976 amendment Act inserted two
additional fault grounds of divorce for wife & a
new section 13B for divorce by mutual consent.
Exploring the meaning of divorce under Hindu law, this article discusses the theories of divorce, including Fault Theory, Mutual Consent Theory, and Irretrievable Breakdown of Marriage Theory. These theories reflect the evolution of the concept of divorce within the Hindu Marriage Act of 1955, allowing for dissolution based on fault, mutual consent, or irretrievable breakdown of the marital relationship.
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Presentation Transcript
THEORIES OF DIVORCE UNDER HINDU LAW
MEANING OF DIVORCE Divorce means dissolution of competent authority. Which was unknown to the ancient hindu law as the institution of marriage was considered as sacramental and eternal union which could not be dissolved. It was introduced after codification of hindu law. marriage by
The term divorce is derived from the latin word divortium which means to turn aside or to separate or it can be understood simply legal termination the matrimonial husband and wife. bond between Section 13 of Hindu marriage Act, 1955 deals wit it.
THEORIES OF DIVORCE FAULT THEORY MUTUAL CONSENT THEORY IRRETRIEVABLE BREAKDOWN OF MARRIAGE THEORY
FAULT THEORY The fault theory is also been known as the offences theory or the guilt theory. The existence of guilt (commission of matrimonial offence) of one party and innocence of other is essential. Only the innocent party can seek remedy of divorce under this theory. Whereas no remedy will be available if both the party of marriage is in fault.
MUTUAL CONSENT THEORY Mutual consent theory is the second theory of divorce. The rationale behind it is that since two persons can marry by their free will, they should also be allowed to move out of the relationship of their own free will. This theory is criticized on the ground that it will promote immorality as it might leads to hasty divorces on slight incompatibility too. The
IRRETRIEVABLE BREAKDOWN OF MARRIAGE THEORY The theory of marriage is third theory of divorce. The breakdown of marriage is defined as : such failure in the matrimonial relationships or such circumstances adverse to that relationship that no reasonable probability remains for the spouses again living together as husband & wife. Such marriage should be dissolved with maximum fairness & minimum humiliation. irretrievable breakdown of the bitterness, distress &
All the three theories of divorce are recognized under modern hindu law. Divorce can be obtained on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) which can be invoked by either party of marriage. Two fault grounds in Section 13(2) on which wife alone could seek the divorce.
In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of Section 13(1A), thus recognizing two grounds of the breakdown of the marriage. The 1976 amendment additional fault grounds of divorce for wife & a new section 13B for divorce by mutual consent. Act inserted two
