THEORY OF DIVORCE UNDER HINDU LAW

    Edited by: Vaani Garg

    INTRODUCTION

    Divorce means a dissolution of marriage between husband and wife. It involves a legal process in which court grants a decree of divorce . After divorce, a marital relationship ends between husband and wife.

    Before Hindu Marriage Act, 1955 there were no laws regarding divorce. India is country where various religions co-exist and all religions have different personal laws of divorce. Under Hindu Marriage Act ,1955, Hindu, Sikh, Jain and Buddhist communities can seek divorce. The Muslim, Parsi and Christian communities have their own personal law.

    THEORY OF DIVORCE

    There are three theories of divorce in Hindu law -;

    1.GUILT THEORY

    This theory is also known as offense and fault theory. In this theory, a dissolution of marriage can be done if one of the parties commits matrimonial offense during marital relations between them. The matrimonial offence must be a ground of divorce, as marriage could dissolve only on the grounds prescribed by law. Guilty party is one who commences a matrimonial offense and the other is the innocent party.

    GROUNDS OF DIVORCE PRESCRIBED BY HINDU LAW

    Under Section 13 of Hindu Marriage Act, 1955 grounds of divorce has been stated for husband and wife, and two additional grounds have been stated for the wife alone to seek divorce.

    1. Cruelty– Where the spouse has treated the other spouse with cruelty after the commencement of marriage.
    2. Desertion– Where one party has deserted or abandoned the other party for a continuous period without giving any reasonable cause.
    3. Conversion– Where one party has converted into another religion . i.e ceased to be a Hindu.
    4. Unsound mind – Where one party is suffering from unsound mind. Unsound mind means suffering from mental disorder or disability of mind .
    5. Renouncing the world– Where one party has renounced the world entering in any religious order.
    6. Presumption of death– Where one party has not been heard for a period of seven years or more than that being alive or not.
    ADDITIONAL GROUNDS TO WIFE

    1.Bigamy– After the solemnization of marriage , if husband marries any other woman again during the marital relations between husband and wife.

    2. Rape, sodomy or bestiality-After the solemnization of marriage, if the husband is guilty of rape, sodomy or bestiality.

    2.MUTUAL CONSENT THEORY

    The Marriage Law (Amendment) 1976, inserted a new section 13B in Hindu Marriage Act, 1955 under which divorce could be sought mutually by both the parties.

    If husband and wife after solemnization of marriage later on realize that it is difficult to hold marital relations between then or they realize they had done a mistake and find it impossible to continue this marital relationship they can seek divorce mutually.

    3.BREAKDOWN THEORY

    Under Hindu law, marriage is considered as a sacrament. It is a union of husband and wife and their marriage is based on love and affection. If there is no love and affection between husband and wife or there is no reasonable reason to stay in marital relation, or it is impossible to live with each other peacefully then it is better to dissolve the marriage.

    Breakdown theory is a theory in which both the parties are not willing to live with each other and all their attempts to reunite have failed . There is no love, affection and respect between them. By this theory both innocent and guilty party can seek divorce.

    CONCLUSION

    Prior to the Hindu marriage Act,1955 there was no provision regarding the laws of divorce. In India marriage is considered as unity of both husband and wife. Earlier, divorce was considered a bad element in a rigid society. But now the time has change. The Hindu Marriage Act,1955 provides laws regarding divorce and it is beneficial to both the parties, especially women.

    The laws provides a better way to come out from a unpleasant and abusive marriages . But before filing divorce both husband and wife has to see its impacts on their future.