DISSOLUTION OF MARRIAGE: THEORIES, GROUNDS

This article is written by Saloni of 7^th semester of Bhagat Phool Singh Mahila Vishwavidyalaya, Department of laws, an intern under Legal Vidhiya

ABSTRACT

In India, personal laws predominately govern the legislation regarding marriage and divorce. Early marriages were an unbroken or inseparable relationship. There was no such thing as dissolution of marriage in former times. However, as society developed, attitudes and norms concerning marriage, among other things, also changed, and so divorce was allowed in some circumstances. However, as society developed, marriage-related beliefs and ideals also evolved. Dissolution of marriage on certain grounds was made permissible. This article is all about the dissolution of marriage, its theories and grounds on which the marriage can be dissolved.

Keywords:

divorce under personal laws, restitution of conjugal rights, judicial separation, dissolution of marriage, grounds for divorce under different personal laws

INTRODUCTION

A dissolution or divorce occurs when a judge formally and legally dissolves a marriage. A marriage that has been dissolved legally puts an end to both of your legal relationships as partners. The legal procedure used to end a marriage is referred to as dissolution of marriage. It starts when one party files a petition to dissolve the marriage or when a pair decides to divorce one other. There are numerous ways to dissolve a marriage. When a marriage is dissolved by a divorce, the parties returned to the status of unmarried. The same is acknowledged in accordance with the personal rules that regulate marriage, which are typically formalized by a legislative act.

MEANING OF DIVORCE

The word “divorce” derives from the Latin word “divortium,” which means “to turn aside,” “to separate.” Divorce is the act of ending a marriage through the dissolution of the relationship. It occurs when a court, or any competent authority, formally dissolves a marriage. To put it in simple words the marriage comes to an end after a decree of dissolution of marriage is passed by the court after that the parties ceases to be husband and wife.

THEORIES REGARDING DISSOLUTION OF MARRIAGE[1]

Fault theory

Fault theory is also known as guilt theory. This theory is based on the idea that divorce was seen negatively by society in the 19th century. Under fault theory divorce is granted only on the basis if either of the parties has committed any matrimonial offence.

Drawback: According to this theory, there must be a guilty and an innocent person, and only the innocent party may seek a divorce. However, the most noticeable aspect and disadvantage is that there is no recourse if both parties were at fault.

Divorce by mutual consent

According to this theory the spouses by mutual consent can put an end to the marriage. In order to seek divorce under this theory both the parties/ spouse jointly file a petition for divorce. The underlying assumption is that since two people can choose to get married, they should also be able to end their relationship voluntarily.

Criticism: However, opponents of this notion claim that this strategy will encourage immorality because it will result in hurried divorces and cause partners to end their marriages even if there is just a tiny temperamental incompatibility.

Irretrievable Breakdown of Marriage Theory

According to the basic principle of the breakdown theory, a marriage should be dissolved if it cannot be saved (or cannot be saved irretrievably). In other words marriage ends if there is a breakdown in the married connection or if any other such unrecoverable circumstances occur and the spouses can no longer live together. This theory’s major objective is to decrease the amount of unhappy marriages in society. This theory’s major objective is to decrease the amount of unhappy marriages in society.

Drawback: the main drawback of this theory is that the spouses can get divorce easily and it gives advantage to the guilty party.

In the land mark judgement of Naveen Kohli vs. Neelu Kohli,[2] According to the Supreme Court, unhappy situations shouldn’t be permitted to last forever, and it’s in everyone’s best interests to dissolve a marriage that can’t be saved.

Indissolubility of Marriage Theory

The theory contends that marriage is an unbreakable bond between husband and wife. It has no end.  This is the Shastric Hindu Law’s theory. Neither the parties’ actions nor the death of one of them may end the marriage. The Shastra position was abandoned by the Hindu Marriage Act. Every Hindu has the right to have their marriage dissolved if the prerequisites outlined in sections 13 and 13B are fulfilled.

INDIAN LAWS RELATED TO DISSOLUTION OF MARRIAGE[3]

Since India is a secular nation, everyone is allowed to practice their faith. Different personal laws regulate specific issues including marriage, divorce, inheritance, maintenance, succession, and others, and each personal law has a different set of regulations pertaining to these issues. Therefore, the grounds for divorce vary greatly from one personal law to the other.

• For divorce procedures in India Hindus, Jains, Sikhs, and Buddhists are governed by the Hindu Marriage Act, 1955
• Christians are governed by the Indian Divorce Act, 1869,
• Parsi Marriage and Divorce Act, 1936 applicable to Parsi
• Dissolution of Muslim Marriage Act, 1939 available for Muslims
• Inter religion marriage and divorce is governed by the Special marriage act, 1956. 

GROUNDS FOR DIVORCE UNDER DIFFERENT PERSONAL LAWS

GROUNDS FOR DIVORCE UNDER HINDU MARRIAGE ACT, 1955

The Hindu Law of Marriage and Divorce has undergone significant and progressive changes as a result of the Hindu Marriage Act of 1955. The Hindu Marriage Act’s Section 13 addresses the grounds for divorce. The following are reasons for divorce:

The various grounds on which a decree of divorce can be obtained are as follows:

• Adultery:

The act of engaging in a sexual connection of any type with a person other than the spouse is known as adultery. The crime of matrimonial adultery is not clearly defined. In the present time adultery is no longer a crime yet it might be a reason for divorce. In Joseph Shine v. Union of India,[4] a five-judge bench of the supreme court presided over by the honorable former chief justice Deepak Mishra invalidated the offense of adultery (497 IPC).

• Cruelty [Section 13(1) (ia)]

Cruelty is a concept that is constantly evolving. Both mental and physical cruelty is included in the contemporary definition of cruelty. Any spouse who experiences physical or mental abuse that puts their life or health in danger may apply for divorce. In the 2010 case of Manisha Tyagi v. Deepak Kumar[5], the Supreme Court ruled that in order for behavior to qualify as cruelty, it only needs to be abnormal and below the recognized norm to the point where the other spouse cannot be expected to put up with it.

• Desertion [section 13 (1) (ib)]

If one spouse leaves the other spouse voluntarily for a minimum of two years without a justifiable reason, without their consent, or against their will, this can be a ground for divorce. In the case of Bipinchandra v. Prabhavati,[6] the Supreme Court ruled that even if the respondent leaves the marital residence with the aim to desert, he will not be considered to have done so if the petitioner prevents him from doing so.

• Conversion Section 13([1) (ii)]

If one of the spouses decides to convert to a different faith, the other spouse may seek for divorce using this reason as the basis. Hindus include Buddhists, Jain, Sikhs. In the landmark judgment of Suresh Babu vs. Leela, the husband converted to Islam against the desires of his wife and gets married a different woman. The wife filed a divorce on the grounds of cruelty and conversion.

• Insanity:

A spouse must meet a number of conditions in order to appeal for divorce on the basis of insanity, or unsound mind. In order for the petitioner to be able to reasonably expect the respondent to live with them, the respondent’s insanity must be incurable and ongoing, either constantly or intermittently. In the case of Vinita Saxena v. Pankaj Pandit[7], the wife requested a divorce from her husband because she had not been made aware of his paranoid schizophrenia prior to their marriage. Her request was approved.

• Leprosy:

Leprosy is a highly contagious disease of the neurological system, tissues, etc. If one of the partners has a severe and incurable type of leprosy, a divorce petition may be filed on this basis.

• Venereal disease:

In accordance with Section 13(1) (v), if the other party has been afflicted with a communicable form of venereal disease; the other spouse may file for divorce if one of the spouses has AIDS or other sexually transmitted diseases that are considered to be significant infectious diseases.

• Renunciation:

Only Hindu law accepts “renunciation of the world” as grounds for divorce. As per Section 13(1)(vi) A spouse may file for divorce if the other person has renounced the world and joined a religious order, according to modern Hindu law. The other spouse has the right to seek for divorce if one of the spouses joins a religious order by enunciating all worldly things.

• Presumption of death:

It is a well-established legal presumption that a person is presumed to be deceased if they are not heard from for seven years or longer by people who would ordinarily hear them if they were living (such as their close friends and relatives). in the same way If one of the parties hasn’t been heard from for seven years or longer, the other party may file for divorce.

• Divorce by mutual consent:

 In accordance with Section 13B, a petition for divorce may be filed if both parties agree to it. The parties must wait one year from the date of the wedding. They must demonstrate that they have been apart for a year or more and are unable to cohabitate.

Grounds for divorce those are available to wife only:

There are several specific grounds on which a wife may request a divorce on the basis that:

1. The wife can file a divorce petition on the ground if after the solemnization of marriage the husband has been guilty of rape, bestiality, sodomy.
2. Bigamy: in case if the husband has again married to another woman during the life time of his first wife. In such a case the wife can file divorce petition.
3. The option of divorce is also available if the order of maintenance has been passed under section 18 of the Hindu adoption and maintenance act, 1956, or section 125 of the criminal procedure code and even after that no cohabitation has been seen for 1 year or more.
4. A petition under this ground may be submitted after a girl reaches the age of majority if she chooses to repudiate a marriage she entered into before the age of fifteen.

GROUNDS OF DIVORCE MENTIONED IN THE DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939

There are two types of divorce recognized by Muslim law: extrajudicial and judicial. The Dissolution of Muslim Marriage Act, which is categorized as a judicial divorce (Faskh), lists the reasons for divorce for Muslims.

1. When the husband’s identity has been an unknown for four years or more.
2. 2) The husband has been imprisoned for at least seven years.
3. Husband neglected to pay maintenance for at least two years.
4. When a girl turns 18, she can repudiate a marriage she entered into when she was under the age of fifteen.
5. If the husband neglected to fulfill his marital duty without good reason. A divorce decree may be requested by the girl.
6. If the husband has leprosy, a major venereal disease, or an incurable mental illness. On this basis, a wife may obtain a divorce.
7. Any grounds recognized or indicated in Muslim Law regarding the dissolution of marriage may also be used to grant the woman the right to a divorce.

GROUNDS OF DIVORCE MENTIONED IN THE INDIAN DIVORCE ACT, 1869

Christians in India are governed by the Indian divorce for the matter of divorce. The grounds for divorce under this act are similar to that of the Hindu marriage act. The grounds of divorce under the Indian divorce act are:

1. Adultery
2. Conversion of religion
3. Presumption of death or either of the spouse not been heard or seen alive for seven years or more
4. Failed to observe the restitution of conjugal right for a minimum period of two years, even the decree for restitution of conjugal rights has been passed by the court
5. If husband is engaged in cruelty which leads to affect the metal health and life of the wife.
6. The wife can apply for divorce if the husband is convicted for rape, sodomy and bestiality.

Grounds Of divorce mentioned in the Parsi Marriage and Divorce Act, 1936

Parsis all over the India are governed by the Parsi marriage and divorce act 1936.the grounds for divorce under this act are:

1. If, within a year, the couple was unable to consummate their marriage,
2. if any party has been missing for at least seven years.
3. The case must be brought within three years of marriage if one spouse was mentally unwell at the time of the union but the other was not aware of it.
4. If the husband is engaged in cruelty, bigamy, adultery, rape, compels the wife for prostitution or any other similar offence.
5. Suffering from incurable venereal disease.
6. Non-resumption of cohabitation after a decree or order of maintenance or judicial separation has been passed by court.

UNDER SPECIAL MARRIAGE ACT

The Special Marriage Act of 1954 permits marriages between parties regardless of the religion, belief, caste, or other practices that each party practices. In the same way divorce is granted under this act to those who got married under this act. The grounds for divorce are mostly similar to those of Hindu marriage act.

RECENT TRENDS IN INDIA RELATED TO DIVORCE

In India, divorce rates among married couples have been rising in recent years. Divorce rates have doubled and, in some cities, even tripled during the previous ten years. According to the court figures and data from crime bureau reveals that Delhi leads the pack, reporting about 9,000 instances annually, a significant increase from the 1,000 cases that were reported on average in the 1990s.Divorce rates have also increased by 200% in Kolkata and Chennai. Kerala has experienced a 350% increase. Divorce cases have increased by 150% in Punjab and Haryana. An important result is that more women are petitioning for divorce, which was unheard of in the 1970s and 1980s.In India, women have always had the legal right to leave an abusive or unsatisfactory marriage. Families affected by divorce often suffer more than other members, particularly the kids who take the brunt of unhappy marriages. For those who choose to divorce, a robust support network is necessary.[8]

Case laws:

In the matter of “Naveen Kohli V. Neelu Kohli (AIR 2006 SC1675)[9],” the Supreme Court of India has advised the Union of India to carefully consider amending the Hindu Marriage Act 1955 to include irretrievable breakdown of marriage as a ground for divorce.

In Krishna Vs. Som Nath (1996),[10] the P&H High Court ruled that the marriage was irretrievably dissolved and that it was in the interests of justice to award the divorce order so that both parties may move on with their lives. The marriage may be dissolved on this reason if the court determines from the evidence and any discussions of resettlement or reconciliation that there was no chance of reconciliation and that delaying the issuance of a divorce judgment would only make the spouses’ suffering worse.

In the case of ” R. Srinivas vs. R. Shametha [11]The Supreme Court has ruled that Even if one party does not consent to the divorce, it may be granted under Article 142 of the Indian Constitution to provide complete and substantial justice between the parties in light of the irretrievably broken nature of the marriage.

The Supreme Court ruled the following in the case of Rani Nirshimha sastry vs. Rani Suneela Rani[12]

If someone has gone through the legal process for an offense under section 498A of the IPC and has been cleared of all charges, the husband is entitled to a divorce judgment since the wife’s accusations of the offense amount to cruelty.

CONCLUSION

Divorce was not even accepted by society in ancient times. However, after a few years, society and its thinking began to shift. Most often, in order to reflect societal changes, the concept of divorce has also experienced a number of changes within the personal laws. The constitutional concepts of equality and privacy have recently been taken into consideration by the courts as they interpret the legislations. The Dissolution of Muslim Marriage statute of 1939 included the practice of quick triple talaq, which permitted a man to divorce his wife without providing a reason by saying the word “talaq” three times. This practice has been abolished by the supreme court of India. According to my opinion, marital rape should be listed as a divorce reason as well. However, marital rape is not yet recognized by our legal system. Though the criminal code does not recognize it, the Kerala High Court decided in the year 2021 that marital rape can be a good reason for divorce. It ought to be regarded as cruel.

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[1]  Mohanty, H., & Ayarzagoitia, J. (2020). The Philosophy of Divorce in Indian Legal context: A Study of Theories of Divorce. Social Science Research Network. https://doi.org/10.2139/ssrn.3727641

[2] (Naveen Kohli vs Neelu Kohli, 2006) https://vidhinama.com/case-analysis-naveen-kohli-v-neelu-kohli-air-2006-sc-1675/

[3]  Garg, R. (2021b, June 29). Divorce under different personal laws in india: a comparative study – iPleaders. iPleaders  https://blog.ipleaders.in/divorce-different-personal-laws-india-comparative-study/

[4] (Joseph Shine vs Union Of India , 2018) https://blog.ipleaders.in/case-analysis-joseph-shine-v-union-india/

[5] (Manisha Tyagi vs Deepak Kumar, 2010) https://www.lawctopus.com/academike/case-analysis-of-manisha-tyagi-v-capt-deepak-kumar/

[6] (Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1956) https://indiankanoon.org/doc/1131783/

[7] (Vinita Saxena vs Pankaj Pandit, 2006) https://lexforti.com/legal-news/ten-important-cases-on-divorce/

[8]  Recent trend of Divorce in India. (n. d.). https://www.azadindia.org/social-issues/divorce-in-india.html

[9]  Rai, D. (2021, June 22). Case Analysis: Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675). iPleaders. https://blog.ipleaders.in/case-analysis-naveen-kohli-vs-neelu-kohli-air-2006-sc-1675/

[10] Smt. Krishna vs Som Nath on 21 March, 1995. (n. d.). https://indiankanoon.org/doc/1455835/

[11]  (R.Srinivas Kumar vs R.Shametha, 2019) https://judicateme.com/wp-content/uploads/2020/07/R.-Srinivas-Kumar-vs-R.-Shametha_JudicateMe.pdf

[12] (Mr. Rani Narasimha Sastry vs Rani Suneela Rani, 2019) https://www.daaman.org/jd/Rani-Narasimha-Sastry-Vs-Rani-Suneela-Rani/Husband-who-got-acquitted-after-trial-in-498A-IPC-case-can-seek-divorce-on-the-ground-of-cruelty