This Article is Written by Saveri Sourabh Sharma of 4th Semester, NMIMS Kirit P Mehta School of Law, Intern under Legal Vidhiya
INTRODUCTION
The topic of divorce and its legal implications in India is a complex and multifaceted one. Divorce is a complicated societal topic that has generated a lot of discussion and controversy in India. Although many regions of the country still view divorce as taboo, the divorce rate has been steadily rising. Depending on the religious group a person belongs to, different laws apply to divorce in India. Different personal laws govern divorce for Hindus, Muslims, Parsis, and Christians, and each law has its own set of grounds for divorce.
Additionally, there are numerous divorce theories that make an effort to explain the reasons for and effects of divorce from a social, psychological, and financial standpoint, that are the fault theory, the mutual consent theory, the irretrievable breakdown of marriage theory, the frustration theory, and the indissolubility theory.
In this research article, we will explore the five theories of divorce and the grounds for divorce under Hindu, Muslim, Parsi, and Christian laws in India.[1]
THEORIES OF DIVORCE
Divorce is a legal method of ending a marriage. Divorce, which entails the dissolution of a marriage and the separation of two people who have lived their lives together, is a complicated legal and social matter. Different divorce theories and methods have developed over time, reflecting various viewpoints on the causes and effects of marital dissolution. These theories include the indissolubility theory, mutual consent theory, irretrievable breakup of marriage theory, and fault theory. Each of these ideas gives a distinctive viewpoint on the dissolution of marriages.[2]
FAULT THEORY
The foundation of the fault theory is the notion that one spouse is to blame for the dissolution of the marriage. Earlier, this theory was referred to as the divorce guilt theory. According to the “fault theory of divorce,” only one spouse may file for divorce if they are solely responsible for the union’s dissolution. In other words, for the other spouse to get a divorce, one spouse must have committed some kind of wrongdoing, such as infidelity, cruelty, or desertion. According to this idea, one spouse is to blame for the breakdown of the marriage, while the other is a helpless victim. The first marriage sin to be named was adultery, which was followed by cruelty and desertion. various legal systems that accept the blame theory may have various conditions for getting a divorce.[3]
MUTUAL CONSENT THEORY
When both spouses consent to a divorce, the mutual consent principle permits it. This viewpoint is frequently referred to as the no-fault divorce theory. Different legal systems may recognise it and have different requirements for getting a divorce. According to the mutual consent theory of divorce, there are many different reasons why marriages end, and it is not always beneficial to place the responsibility only on one partner. A marriage may terminate if both spouses agree that their union has irretrievably fallen apart and they want to separate. According to this notion, the choice to dissolve the marriage belongs to both spouses on an equal footing. Given that neither spouse must be at fault for the marriage’s dissolution, it is frequently thought of as a more humane and compassionate approach to divorce.[4]
IRRETRIEVABLE BREAKDOWN OF MARRIAGE THEORY
The foundation of the irretrievable collapse of marriage theory is the notion that the marriage is irreparably damaged. While the mutual consent theory necessitates the explicit consent of both spouses, the irretrievable breakdown of marriage theory does not. According to this view, whether one or both partners choose to terminate the marriage, it may be dissolved if it is determined that the marriage is irretrievably shattered. The Supreme Court of India has interpreted the irretrievably broken marriage theory to indicate that a marriage may be dissolved if it is determined to be irretrievably broken and there is no hope of reconciliation between the spouses, even if it is not officially recognised in Indian law.[5]
FRUSTRATION THEORY
According to the frustration theory of divorce, a marriage might end if one or both spouses are unable to discharge their basic marital commitments because of extenuating circumstances. According to this notion, the other spouse could be eligible to get a divorce if, for instance, one spouse is rendered permanently incapable of caring for themselves or is sent to jail. Although Indian law does not expressly recognise the frustration theory of divorce, courts have held that a marriage may be dissolved if one or both spouses are unable to fulfil their marital obligations because of extenuating circumstances, such as impotence, mental illness, or imprisonment.[6]
INDISSOLUBILITY THEORY
The indissolubility theory of marriage holds that marriage is a sacred and permanent union that cannot be dissolved under any circumstances. The indissolubility theory is predicated on the notion that marriage is an inseparable and indissoluble tie, yet it may become irreparable to the point where the spouses are unable to coexist peacefully and have no other option than to dissolve the marriage. This approach to divorce is often associated with religious or traditional values, and is not widely recognized in modern legal systems. In India, the Hindu Marriage Act of 1955 recognizes marriage as a sacrament and holds that it is a lifelong commitment that cannot be dissolved, except under certain circumstances, such as adultery, cruelty, or desertion. However, other religions, such as Islam and Christianity, have different rules and regulations regarding divorce.[7]
The five theories of divorce are accepted in various legal systems and have varied conditions. The mutual consent theory permits divorce when both partners agree to it, in contrast to the fault theory, which holds that one spouse is to blame for the marriage’s dissolution. The foundation of the irretrievable collapse of marriage theory is the notion that the marriage is irreparably damaged. The frustration theory incorporates extenuating circumstances including death, insanity, and failure to consummate a marriage. The indissolubility theory is predicated on the notion that marriage is an inseparable and indissoluble tie, yet it may become irreparable to the point where the spouses are unable to coexist peacefully and have no other option than to dissolve the marriage.
GROUNDS FOR DIVORCE
In India, divorce is often seen as a taboo practice since marriage is seen as a holy institution. However, the nation’s divorce rate has been rising as social and cultural norms change. The reasons for divorce under each religious group’s personal laws varied, and each religious community in India has its own rules regulating marriage and divorce. Laws governing divorce in Hindu, Muslim, Parsi, and Christian communities all specify the requirements that must be met before a divorce may be granted. The legal basis for marriage and divorce in India is provided by the Hindu Marriage Act, Muslim Personal Law (Shariat) Application Act, Parsi Marriage and Divorce Act, and Indian Divorce Act.[8]
GROUNDS FOR DIVORCE UNDER HINDU LAW
There are several grounds for divorce under the Hindu Marriage Act of 1955[9]. Nine fault reasons for divorce are listed in Section 13(1)[10] of the Act, including adultery, cruelty, desertion, insanity, leprosy, venereal illness, and conversion. Renunciation of the world, known as sanyasa, and the likelihood of death are additional reasons for divorce in Hindu law.
According to the Hindu Marriage Act, adultery is a crime that must be proven with strong evidence. One adulterous act is sufficient to prove adultery as a cause for divorce, according to a 1976 legislation change. Additionally, rape, bestiality, or sodomy committed by the husband may also be grounds for divorce. The first wife may file for divorce if the union was consummated prior to the passage of the Hindu Marriage Act and the husband wed another woman while she was still living.[11]
It is essential to remember that divorce is legal under Hindu law when there has been mutual agreement, a breakdown in the marriage, or a customary divorce. When a marriage fails, the parties must have been living apart for a continuous period of two years or more, unless they have mutually agreed to submit a joint petition for divorce. According to Section 29(2)[12] of the Hindu Marriage Act, customary divorce is acceptable for certain tribes and groups that follow their own divorce practices and traditions.
GROUNDS FOR DIVORCE UNDER MUSLIM LAW
There are many valid grounds for divorce in Muslim law. Nine causes are listed in Section 2 of the Dissolution of Muslim Marriages Act, 1939, on which a Muslim woman may seek for divorce. These grounds for divorce under Muslim law include false accusations of adultery, cruelty on the part of the husband, desertion, impotence, insanity, failure to pay maintenance for two years, and impotency.[13]
According to Muslim law, the Muslim Personal Law (Shariat) Application Act of 1937[14] specifies the grounds for divorce. Anytime he wants, a Muslim husband has the unrestricted right to divorce his wife. This right is so unrestricted that he is able to use it himself or give it to someone else, even his own wife. The idea that the Muslim husband has an arbitrary, unilateral right to force a quick divorce, however, is at odds with Islamic edicts.[15]
Muslim law really recognises a number of divorce procedures, including talaq, khula, and mubarat.
- Talaq: In the presence of witnesses, a husband may divorce his wife by saying the word “talaq” three times, either verbally or in writing.
- Khula: A woman may file a petition for khula in a court of law to get a divorce from her husband. In this situation, the woman consents to give up whatever property she got from the husband, including the dowry.
- Mubarat: Under the mubarat system, both the husband and wife may request a divorce by mutual agreement.[16]
Modern Indian Muslim law also recognises two grounds for divorce based on a breakdown in the marriage: the husband’s inability to pay maintenance, even if that failure was caused by the wife’s behaviour, and the couple’s complete incompatibility.
GROUNDS FOR DIVORCE UNDER CHRISTIAN LAW
Laws regarding divorce for Christians and other marriage issues are codified in the Indian Divorce Act, 1869[17]. If one of the parties involved in the proceedings is a Christian, this Act is applicable. Through mutual agreement, both parties may initiate a divorce process or they can be initiated by the aggrieved party as well.
The Indian Divorce Act of 1869 provides for the dissolution of Christian marriages and lists adultery, desertion, and cruelty as the three grounds for divorce.
When one of the partners has an affair, it is called adultery. Under Christian law, adultery is one of the most common grounds for divorce and is regarded as a serious offence.
Desertion occurs when one spouse leaves the other for at least two years without any explanation or legitimate cause.
Any behaviour that causes the other spouse physical or mental distress or makes it hard for them to continue living together is referred to as cruelty.[18]
The law also permits divorce on the basis of a spouse’s conversion to a different faith, which implies that if the other spouse does not agree with the conversion, that may also be grounds for divorce.
Christians may also seek for divorce under the Indian Divorce Act of 1869 on the grounds of insanity, leprosy, contagious venereal illness, and presumed deceased.
In addition, if the woman files, the statute permits divorce on the grounds of rape, sodomy, and bestiality. It is crucial to remember that divorce is only authorised in extreme cases, and the innocent spouse may file for divorce if the guilty spouse is to blame for a marital infraction.[19]
GROUNDS FOR DIVORCE UNDER PARSI LAW
There are several grounds for divorce under the Parsi Marriage and Divorce Act of 1936[20]. These include seven years of uninterrupted absence, one year of unfulfilled marriage, cruelty, desertion, conversion, insanity, and venereal disease.
The grounds for an irretrievable breakup of a marriage were introduced when the legislation was amended in 1988.
When one spouse has been gone continuously for seven years or more without a valid reason, this is referred to as a continuous absence.
Non-consummation of marriage within one year is when there hasn’t been any sexual activity between the couples during the first year of the marriage.
Under Parsi law, adultery is one of the most frequent grounds for divorce and is regarded as a serious offence.
Any behaviour that causes the other spouse bodily or emotional suffering or makes it hard for them to continue living together is referred to as cruelty.
Desertion is the act of one spouse leaving the other without a valid reason or explanation.
One spouse converting to a different faith is referred to as a conversion.
If one partner is mentally ill, it is referred to as insanity.
When one partner has a contagious venereal illness, this is referred to as venereal disease.[21]
The notion of judicial separation, which is a temporary arrangement in which partners live apart but are still legally married, is recognised by Parsi law. Restitution of conjugal rights is a legal remedy accessible to a spouse who has been abandoned by the other spouse, and it is also recognised by Parsi law.
According to the Act, a marriage may be dissolved by mutual consent, and both spouses to a marriage may file for divorce together on the grounds that they have been living apart for at least a year, that they are unable to cohabitate, and that they have mutually decided that the marriage should end.[22]
CONCLUSION
Divorce is a sensitive and complicated topic that has to be carefully considered from both a theoretical and legal standpoint. Different viewpoints on the causes and effects of divorce are offered by the five theories of divorce: the fault theory, mutual consent theory, irretrievable breakdown of marriage theory, frustration theory, and indissolubility theory.
Depending on the parties’ respective religions, different divorce rules apply in India. Adultery, cruelty, and desertion were among the grounds for divorce introduced by the Hindu Marriage Act of 1955. Muslim law views marriage as a contract, and the husband may begin the divorce process by issuing a talaq. Christian weddings and divorces in India are controlled by the Indian Christian Marriage Act of 1872 and the Divorce Act of 1869, respectively, whereas Parsi marriages and divorces are overseen by the Parsi Marriage and Divorce Act of 1936. It is important to note that each of these laws may have different divorce grounds. It is essential for anyone wishing to dissolve their marriage to understand the legal requirements and reasons for divorce under each jurisdiction.
[1] Hindu, Muslim and Christian divorce laws in India, Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-5532-hindu-muslim-and-christian-divorce-laws-in-india.html (Accessed: April 30, 2023).
[2] Saha, S. (2021) Theories of divorce, Jus Corpus. Available at: https://www.juscorpus.com/theories-of-divorce/ (Accessed: April 30, 2023).
[3] Divorce under fault and no-fault theory, Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-6368-divorce-under-fault-and-no-fault-theory.html (Accessed: April 30, 2023).
[4] T, K. (2023) Divorce by mutual consent, Vakilsearch. Available at: https://vakilsearch.com/blog/divorce-by-mutual-consent/#:~:text=Mutual%20consent%20divorces%20are%20those,no%20consent%20from%20either%20spouse. (Accessed: April 30, 2023).
[5] Irretrievable breakdown of marriage (2022) Matrimonial Advocates. Available at: https://matrimonialadvocates.com/irretrievable-breakdown-of-marriage/ (Accessed: April 30, 2023).
[6] Rai, S. (2022) Divorce theories under Hindu Marriage Act 1955, National Journal for Legal Research and Innovative Ideas. Available at: https://www.njlrii.com/2022/03/divorce-theories-under-hindu-marriage.html#:~:text=Frustration%20Theory%3A&text=The%20grounds%20of%20granting%20divorce,other%20resulting%20to%20mental%20cruelty. (Accessed: April 30, 2023).
[7] Kaur, S. (2021) What are the theories of divorce?, Law Insider India. Available at: https://www.lawinsider.in/columns/what-are-the-theories-of-divorce (Accessed: April 30, 2023).
[8] Grounds for Divorce in India, AdvocateKhoj. Available at: https://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Grounds%2Bfor%2BDivorce%2Bin%2BIndia (Accessed: April 30, 2023).
[9] Hindu Marriage Act, No. 25 of 1955, Act of the Parliament.
[10] § 13(1), Hindu Marriage Act, No. 25 of 1955, Act of the Parliament.
[11] Fault grounds of divorce in Hindu Marriage Act, 1955, Legal Service India – Law, Lawyers and Legal Resources.
Available at: https://www.legalserviceindia.com/legal/article-5588-fault-grounds-of-divorce-in-hindu-marriage-act-1955.html (Accessed: April 30, 2023).
[12] § 29(2), Hindu Marriage Act, No. 25 of 1955, Act of the Parliament.
[13] Divorce under Muslim law: The concept, Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-5479-divorce-under-muslim-law-the-concept.html (Accessed: April 30, 2023).
[14] Muslim Personal Law (Shariat) Application Act, No. 26 of 1937.
[15] The Rules & Regulation of Divorce under Muslim law (2022) Rest The Case. Available at: https://restthecase.com/knowledge-bank/know-the-law/divorce-under-muslim-laws-in-india (Accessed: April 30, 2023).
[16] Gupta, P. (2022) Grounds for dissolution of Muslim marriage, LAWS STUDY. Available at: https://lawsstudy.com/grounds-for-dissolution-of-muslim-marriage/ (Accessed: April 30, 2023).
[17] Indian Divorce Act, Act No. 4 of 1869.
[18] The grounds for divorce under Christian law in India (2022) lexsolutions. Available at: https://www.lexsolutions.org/the-grounds-for-divorce-under-christian-law-in-india/ (Accessed: April 30, 2023).
[19] Aslam , M., Christian Law Regarding Marriage and Divorce in India, Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-1764-christian-law-regarding-marriage-and-divorce-in-india-indian-christian-marriage-act-1872.html (Accessed: April 30, 2023).
[20] Parsi Marriage and Divorce Act, Act No. 3 of 1936.
[21] Grounds for divorce: Parsi marriage and divorce act, 1936: Bare acts: Law library, AdvocateKhoj. Available at: https://www.advocatekhoj.com/library/bareacts/parsimarriage/32.php?Title=Parsi+Marriage+and+Divorce+Act%2C+1936&STitle=Grounds+for+divorce (Accessed: April 30, 2023).
[22] Parsi law regarding marriage and divorce. an overview, Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-1883-parsi-law-regarding-marriage-and-divorce-an-overview.html (Accessed: April 30, 2023).
