DISSOLUTION OF MARRIAGE: THEORIES, GROUNDS

Admin

1 year ago

Advertisements

Spread the love

This article is written by Yash (Dissolution of Marriage: theories, grounds) from Chandigarh University.

Abstract

The dissolution of marriage, a complex and emotionally charged legal process, has been subject to various grounds and theories of divorce throughout history and across different legal systems. Divorce has many facets, and this abstract examines them by examining both its historical and modern aspects. Modern divorce laws have developed to incorporate no-fault divorce, stressing the dissolution of the marital relationship as the major reason for separation. Traditional grounds for divorce frequently focused on fault-based reasons such as adultery, cruelty, or desertion. In addition, socioeconomic issues, psychological health, and the best interests of any children involved have all been included to divorce theories. Divorce dynamics are always altering to reflect our shifting values, goals, and legal frameworks as society continues to advance. This abstract sheds light on the history, present, and future relevance of divorce in our lives and legal institutions, giving readers a look into the complex tapestry of divorce. There are certain circumstances and theories upon which a marriage may be dissolved under the Hindu Marriage Act (HMA), 1955 in India.

Keywords: Dissolution of marriage, adultery, desertion, socioeconomic issues, tapestry, psychological health.

INTRODUCTION

In Hindu law, marriage is revered as a sacred union, wherein two individuals solemnly commit to a lifelong journey together, aligning with the rich cultural traditions of the Hindu religion. However, there are instances when either the misconduct of one partner or a mutual agreement between both partners leads to the dissolution of this sacred bond. In earlier times, marriages were considered unbreakable and indissoluble. But as matrimonial misconduct increasingly became a source of unhappiness within marriages, the need arose to provide a means for ending such unhappy unions. The dissolution of marriage is essentially a form of divorce. It can be carried out through two primary approaches: the fault theory and the no-fault theory. Under the fault theory, a marriage can be dissolved on the grounds of misconduct by one of the partners. Conversely, in the no-fault theory, both parties mutually consent to live separately, leading to the dissolution of the marriage. In the majority of cases, marriages are dissolved through the no-fault theory.

In the subsequent sections of this article, we will delve deeper into the various theories surrounding divorce, explore the grounds on which it can occur, and examine the different forms that divorce can take within the context of Hindu law.

OBJECTIVES

The dissolution of marriage, commonly known as divorce, encompasses various objectives, grounded in legal, social, and psychological theories. One of the primary objectives is to provide an avenue for couples to end their marital relationship when it has irreparably broken down, aligning with the “irretrievable breakdown” theory. This theory recognizes that some marriages reach a point where the parties involved can no longer live together harmoniously, making divorce a necessary means to address the emotional and practical challenges arising from the strained relationship. Protecting individual autonomy is another goal of divorce, mirroring the concepts of self-determination and autonomy from legal and ethical philosophies. According to the “self-determination” principle, people should have the freedom to determine whether they wish to stay in a marriage that is no longer in their best interests. This viewpoint places a strong emphasis on the value of individual freedom and decision-making when it comes to marriage and family issues.

DIVORCE UNDER HINDU MARRIAGE ACT, 1955

The Hindu Marriage Act, 1955 contains laws on when a spouse may file for divorce or make an appeal for the dissolution of the marriage in a court of law. The marriage or married connection must be protected from all harm for the reasons outlined by law in the benefit of society. Only serious circumstances allow for divorce; otherwise, there are other options available.

According to Section 13(1) of the Hindu Marriage Act, any of the unhappy spouses may go to court and request a divorce using the blame theory of the law. Only the wife may petition the court for a divorce under the conditions set out in Section 13(2).

THEORIES

Marriage dissolution is a complicated process that goes beyond the simple legal separation of two people; it also takes into account the complex dynamics of interpersonal relationships and cultural norms. . Within the realm of legal systems, various theories have emerged to address the multifaceted nature of marital dissolution. These theories serve as the philosophical underpinnings upon which grounds for ending a marriage are built. From traditional notions rooted in cultural and religious beliefs to modern perspectives grounded in individual rights and the irretrievable breakdown of relationships, these theories provide insight into how societies grapple with the dissolution of a sacred union.

In accordance with Hindu Law, there are three divorce theories:

Culpability and Fault Theory.
Consensual Separation.
Inevitability of Irretrievable Breakdown.

Culpability and Fault Theory:

The Fault or Guilt theory in the context of divorce reflects a conventional approach deeply rooted in the act of pinpointing specific offenses or defects within a marriage. Under this paradigm, the dissolution of a marital union hinges on the identification of the party responsible for the relationship’s breakdown, attributing blame to actions such as infidelity, cruelty, mental illness, desertion, or religious conversion. This theory operates on the fundamental premise that one spouse can be held accountable for the demise of the marriage due to their deeds or behaviour. In essence, the Fault or Guilt theory underscores the need to assign fault in order to legitimize the termination of a marriage. Historically, divorce laws often required clear proof of wrongdoing as a prerequisite for granting a divorce, making it essential to establish a “guilty” party. This approach not only sought to uphold traditional moral values but also addressed concerns about the potential consequences of divorce on children and societal stability.

However, it’s important to note that the Fault or Guilt theory has evolved over time, with many jurisdictions now adopting a no-fault divorce system. This contemporary approach places less emphasis on attributing blame and instead focuses on the irretrievable breakdown of the marriage as grounds for divorce. No-fault divorce recognizes that marriages can disintegrate due to a multitude of factors, including incompatibility and personal growth apart from any specific wrongdoing.

Consensual Separation:

Divorce by Mutual Consent embodies a forward-looking, cooperative philosophy that transcends the outdated concept of assigning blame in the dissolution of marriages. This theory acknowledges the intricate dynamics of human relationships, understanding that unions can crumble due to irreconcilable differences or circumstances where neither partner bears exclusive responsibility. It hinges upon a fundamental principle of voluntary agreement, where both spouses willingly choose to end their marriage and, as a sign of their commitment to this decision, opt to live apart for a specified period, often around a year. What makes this approach truly distinct is its unwavering commitment to the concept of “no-fault.” It emphasizes the autonomy of individuals within the context of their union, valuing their capacity to make informed choices about the course of their lives. By focusing on collaboration rather than conflict, Divorce by Mutual Consent paves the way for a more harmonious and respectful separation, recognizing that the end of a marriage can also mark the beginning of new, independent journeys for both parties involved.

Inevitability of Irretrievable Breakdown:

While the Hindu Marriage Act doesn’t explicitly include the concept of Irretrievable Breakdown of Marriage, it holds significant sway in legal conversations. This theory centres on the understanding that certain marriages inevitably reach an irreparable breaking point, regardless of assigning blame or fault to either spouse. It emphasizes the fundamental importance of the well-being and happiness of each individual, asserting that continuing such marriages is unsustainable and harmful to the parties involved. Courts, guided by this principle, have the authority to grant divorce when they determine the marriage to be irredeemable, recognizing that forcing individuals to stay in such unions can lead to prolonged emotional distress and conflict. This concept has evolved as a progressive and compassionate approach in family law, granting courts greater flexibility in cases where marriages have deteriorated to a point where reconciliation is unlikely, thus prioritizing the welfare of those involved. This shift highlights the evolving nature of family law, moving away from blame and toward a focus on the well-being of individuals, allowing for more equitable resolutions in cases of marital breakdown.

Hindu law’s divorce procedures are based on these three ideas as a whole, which provide a range of methods for navigating the complicated interactions between conventional beliefs and changing social mores. The Consensual Separation theory emphasizes the value of agreement, the Irretrievable Breakdown theory highlights the recognition of situations when reconciliation is impossible, and the Fault Theory places responsibility on individual wrongdoing. These theories take into account the many wants and viewpoints of people navigating the complex waters of divorce under Hindu law.

GROUNDS

The Hindu Marriage Act (HMA) of 1955, which governs Hindu marriages in India, provides for several grounds on which a Hindu marriage can be legally dissolved. This law allows for the precise reasons for divorce. The following is a list of these reasons:

Adultery: Hindu Marriage Act (Section 13(1)(i)) states about the adultery. After being married, any spouse may use it as a reason for divorce if they have voluntary sexual contact with someone else. The spouse requesting the divorce must demonstrate that the other spouse had sexual encounters outside of the marriage in order to establish adultery as a basis for divorce. The Supreme Court of India declared that adultery must be proven beyond a reasonable doubt in the case of V. Bhagat vs. D. Bhagat (1994). Adultery is not necessarily proven by suspicion or even by the fact that the spouse has become close to someone of the other sex. To prove adultery as a cause of divorce, tangible proof is necessary, such as photos or eyewitness testimony.

Cruelty (Section 13(1)(ia)): Both mental and physical abuse are forms of cruelty. Any action that subjected the other spouse to unimaginable emotional torment or misery is considered to be cruel on the mental level. Physical damage or risk to life, limb, or health are both considered to be acts of cruelty. Since there must be proof of cruelty, this foundation is purely subjective. The Supreme Court defined cruelty in the Shobha Rani v. Madhukar Reddi case (1988) as conduct that results in such mental anguish and suffering that it is difficult for the wounded spouse to coexist with the other spouse. Both mental and physical cruelty are possible. In this instance, the wife’s attempted suicide and untrue accusations of impotence were regarded as harsh behaviour.

Desertion (Section 13(1)(ib)): If one spouse abandons the other for at least two years without good explanation, it may be grounds for divorce. The deserted spouse is required to provide evidence that they were forced to leave. The Supreme Court ruled in the case of Bipinchandra Jaisinghbhai Shah vs. Prabhavati (1956) that desertion is defined as the purposeful abandoning of one spouse by the other without a good reason and without permission. There must be a deliberate desire to desert, and the desertion must last for at least two years.

Conversion to Another faith (Section 13(1)(ii)): If one spouse changes to another faith after marriage and ceases to be a Hindu, the other spouse may file for divorce on this basis. It’s crucial to keep in mind that for this reason to apply, the non-converting spouse must not have given their permission to the conversion.

Mental Disorder (Section 13(1)(iii)): If a spouse has a mental disorder that prevents them from cohabitating for a continuous period of at least two years, such illness may be grounds for divorce. The condition must be such that it prevents couples from living together. The Supreme Court made it clear that the mental disease must be of a kind that renders it difficult for the parties to cohabitate in the case of Smt. Sureshta Devi vs. Om Prakash (1991). In this instance, schizophrenia was accepted as a legal basis for divorce since it prevented the wife from recognizing her husband.

Venereal Disease (Section 13(1)(iv)): A spouse may be eligible for a divorce if they have a contagious venereal disease and the other spouse was not aware of this condition at the time of the marriage. The uninfected spouse’s health is being safeguarded by doing this.

Renunciation of the World (Section 13(1)(v)): After marriage, renunciation of the world and conversion to asceticism might be grounds for divorce. When a spouse chooses to lead a celibate and renunciant lifestyle, this foundation is relevant. The Delhi High Court allowed a divorce in the case of Swaraj Garg vs. K.M. Garg (1986) on the grounds that the husband had given up the world and became sanyasi. The court decided that his choice to lead an austere, celibate life constituted a sufficient basis for divorce.

Presumption of Death (Section 13(1)(vi)): If a spouse has been missing from the marriage for at least seven years and has not been heard from during that time, they may be believed to have passed away, and the other spouse may file for divorce.

Non-Resumption of Cohabitation (Section 13(1)(vii)): If spouses have not resumed cohabitation after living apart for a continuous period of one year or more following the entry of a judicial separation decision, it may be a basis for divorce. The Supreme Court made it clear that this reason does not allow for a divorce based solely on physical separation in the Naveen Kohli v. Neelu Kohli (2006) case. Additionally, there must be proof that the couple did not resume living together after the court separation decision for a continuous period of one year or longer.

Failure to obey decree of restitution of conjugal rights (Section 13(1A)(ii)).: Failure of the spouses to follow the restitution of conjugal rights decree is another basis for divorce. The husband and wife may file for divorce if such a decree was issued by the court but they did not abide by it within a year of the day it was issued. In the case of A.V. Janardhana Rao v. M. Aruna Kumari (2000), the husband filed a petition for divorce on the grounds that there had not been any cohabitation between him and his wife within a year of the decree of restitution of conjugal rights being issued and that they were unwilling to resume their married life together. The judge ruled that the husband was entitled to a divorce since she had not complied with the order.

Exclusively available to wives are the grounds for divorce

Divorce laws have evolved significantly over time to provide more equitable options for both spouses. While many grounds for divorce are applicable to both husbands and wives, there are some circumstances where the law acknowledges specific challenges faced by wives in a marriage. These grounds recognize the importance of protecting the rights and well-being of wives who may find themselves in difficult marital situations. Below are some grounds for divorce that are typically available specifically to wives:

Dowry Harassment: In India, if a wife has been the victim of dowry harassment, she may seek for divorce under a particular provision of Section 498A of the Indian Penal Code. This clause protects spouses’ rights from dowry demands that are unlawful yet common in some regions of the nation.
Bigamy: The act of a spouse being married to someone else while they are still legally married is prohibited by many legal systems. Wives have the ability to file for divorce based on these reasons, ensuring that they are not left in a position where their spouse has wed someone else without their permission. In Lily Thomas v. Union of India (2000), the wife accused the husband of converting to a different religion and getting married to a member of that faith while their previous marriage was still going strong. The court ruled that despite his conversion to a different faith, he had not legally separated from his first wife. His second marriage would be null and invalid, and he would be responsible for the crime of bigamy. The Supreme Court also said that religion should not be used for material gain or advantages because it is not a commodity.
Mental Illness or Impotency: Laws in various countries allow wives to seek divorce if their husbands are suffering from incurable mental illness or impotency, preventing a fulfilling marital life. This recognizes the importance of a healthy and fulfilling marital relationship.

CONCLUSION

In conclusion, the dissolution of a marriage serves as a poignant reflection of the intricate and ever-evolving nature of our relationships and love in life. While theories and explanations can provide us with legal frameworks and insights into the reasons behind marital endings, it’s crucial to acknowledge that the journey of each couple towards separation is profoundly unique and filled with intense emotions. Beneath every failed marriage lies a profoundly human narrative characterized by growth, transformation, and an unwavering pursuit of happiness.

Marriage breakdowns shine a light on humanity’s enduring resilience and determination when confronted with challenges. When two individuals embark on the path of marriage with love and hope, they make a profound commitment. When that commitment faces difficulties and the relationship can no longer be sustained, it requires immense courage to recognize the need for change and take the challenging steps towards separation. Flexibility is another critical aspect emphasized by the dissolution of a marriage. Life is unpredictable, and circumstances change. The ability to adapt and make tough decisions when necessary reflects our resilience as individuals and as couples. It underscores our capacity to evolve and grow, even in the face of life’s most daunting transitions. To gain a true understanding of marriage breakdown, we must approach it with empathy. Empathy enables us to step into the shoes of those experiencing the end of their marriage and grasp the complexity of their emotions, the pain of separation, and the uncertainty of what lies ahead. It serves as a reminder that beneath every statistic and legal procedure, there are genuine individuals with genuine feelings and personal stories.

Ultimately, the breakdown of a marriage underscores the importance of supporting one another through life’s transformations with empathy and understanding. Instead of passing judgment or offering unsolicited advice, we should extend a compassionate hand to those navigating the challenging waters of divorce. We should strive to create a society where individuals feel safe seeking help, guidance, and emotional support during these trying times. Marriage breakdowns are a testament to the human experience—the trials and tribulations, the triumphs and tragedies that shape our lives. They serve as a powerful reminder that as we journey through life, we should do so with open hearts and open minds, prepared to embrace change and provide kindness and support to those in need. Ultimately, it is through our shared humanity and capacity for empathy that we can navigate the intricate landscape of love and relationships with grace and understanding.

REFERENCES

https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/#Grounds_of_Divorce_as_per_The_Hindu_Marriage_Act ( last visited on 21^st September)

https://www.legalserviceindia.com/legal/article-8703-theories-of-divorce.html#:~:text=These%20grounds%20were%2D%20Adultery%2C%20Cruelty,Divorce%20by%20Mutual%20Consent (last visited on 22^nd September)

https://lexpeeps.in/dissolution-of-marriage-theories-forms-of-divorce-grounds/ (last visited on 23^rd September)

https://www.scconline.com/blog/post/2022/04/15/irretrievable-breakdown-of-marriage-as-a-ground-for-divorce/ ( last visited on 23^rd September)

https://indiankanoon.org/search/?formInput=dissolution%20of%20marriage ( last visited on 24^th September)