There are different theories according to which a married couple can give divorce. These theories are the reasoning given behind the separation or ending the marriage. these can be categorized under the following points:
Divorce at will
This theory of divorce was prominent in the Muslim law. According to this theory a person can divorce the spouse whenever they want to. The best example that can be given is of the practice that has been recently criminalized by our government, talaaq-e-biddat.
In this practice the husband has to say the urdu word, talaaq, thrice and the marriage is ended. This practice was misused by the husbands and hence is criminalized.
Frustration of marriage
This theory states the various reasons because of which the marriage can be ended at the will of one party. It is different from Divorce at will as here the party has to prove one of the grounds which are stated below and has to contest a case in the court.
These grounds are stated under section 13 of the Hindu Marriage Act.
Has been incurably of unsound mind, or has been suffering continuously or intermittently suffering from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation .—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; [ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
If the party is able to prove any one of the ground towards the other party, then they can end the marriage under the theory of frustration of marriage.
Fault/ guilt theory
This theory includes divorce because of matrimonial offenses. For example adultery, bigamy, violence,etc.
These theory includes section 13(1)(i), 13(1)(ia), 13(1)(ib), 13(2) of the Hindu Marriage Act.
13 Divorce. —
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or [bestiality; or]
[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
[(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]
Mutual Consent Theory
According to this theory, both the husband and the wife want to get separated by mutual consent as they believe that they cannot be together in a marriage.
This theory is included under section 13(b) of the Hindu Marriage Act.
13B Divorce by mutual consent. —
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]
(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.
(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
Irretrievable breakdown of marriage
It is a proposed bill and is somewhat similar to Divorce at will. When a divorce petition is filed the judge asks the question why does the couple wants to get separated. There is not always a condition that there is a case of the above mentioned theories, there can also be cases that the marriage is already dead but the partners are not mutually consenting for divorce.
It can be because of any reason, may be financial security or because of the children born out of the wedlock. This theory can be applied to such cases where the partner has not done anything which comes under the above theories and one party wants divorce and the other doesn’t.
If this bill is passed it would do more harm than good.
Yousuf v. Sowrama AIR 1971, Kerala, 261
Judgement: The judge in this case stated that while there is no rose which has no thorns but if what you hold is all thorns and no rose, better throw it away. Where the ground of divorce is not conjugal guilt but breakdown of marriage.
71st report of law commission recommended that it should be made a ground of divorce. It suggested a period of 3 years of separation as a criteria of breakdown but not implemented so far.
The marriage laws amendment bill, 2010 suggested to introduce S. 13(c) for the same ground.