INTRODUCTION
INTRODUCTION
The Hindu Marriage Act, 1955 has introduced vital and dynamic changes inThe Hindu Marriage Act, 1955 has introduced vital and dynamic changes in
the Hindu Law of marriage and divorce. It has laid down clear provisions
the Hindu Law of marriage and divorce. It has laid down clear provisions
regarding divorce under certain circumstances. Divorce is
regarding divorce under certain circumstances. Divorce is laid down underlaid down under
Sections 13, 13(B), 14 and
Sections 13, 13(B), 14 and 15 of the Act. Section 13 deals with the15 of the Act. Section 13 deals with the
circumstances in
circumstances in which the riwhich the right to ght to divorce accrues. divorce accrues. Section 14 limSection 14 limits theits the
right to obtain divorce under certain conditions and Sec
right to obtain divorce under certain conditions and Sec 15 lays down the15 lays down the
limitations on the right of divorced persons to marry
limitations on the right of divorced persons to marry again.again.
There are various theories of divorce on the basis of which most of theThere are various theories of divorce on the basis of which most of the
grounds of judicial separation and divorce are formulated
grounds of judicial separation and divorce are formulated in Section 13(1) ofin Section 13(1) of
Hindu Ma
MEANING OF DIVORCE
Divorce is the termination of a marriage or marital union, the cancelling or
reorganizing of the legal duties and responsibilities of marriage,
Divorce is also known as dissolution of marriage,
Divorce is dissolving the bonds of matrimony between a married couple
under the rule of law of the particular country or state.
Divorce laws vary considerably around the world, but in most countries
FAULT THEORY
A fault divorce is usually chosen by a spouse who wishes to be vindicated by
proving the other's fault.
According to this theory, the spouse can seek divorce from the other spouse
if he or she is found in fault of committing a matrimonial offence.
There is the presence of personal injury to the matrimonial relations of the
spouses.
This theory implies, one party is guilty and the other party is innocent. Only the innocent party can seek the remedy of divorce under this theory.
ORIGIN
It has been seen that in early English law, adultery, cruelty and
desertion were the only three grounds of divorce. Later on
insanity was added as a ground of divorce. Insanity did not fit in
within the framework of guilt or matrimonial offence theory, as
the party suffering from insanity could hardly be called a guilty
party. It is a misfortune rather than misconduct. This led to
IMPORTANCE OF FAULT
THEORY
The offence/fault theory stipulates for two things:
(i) a guilty party, i.e., the party who has committed one of the specified matrimonial offences, and
(ii) an innocent party, who has been outraged and who has played no role in the criminality or the matrimonial offence of the other party.
The Hindu Marriage Act incorporated the guilt or fault theory, and laid down that there must be a guilty party and an innocent party, if the petitioner‘s
But if the scenario is of both spouses being at fault or both spouses have shown grounds for divorce exist, the court will grant a divorce to the party who is least at fault under the doctrine of "comparative
rectitude." This is a recent development in the field of law, because years ago, when both spouses were at fault, neither was entitled to a divorce.
GROUNDS FOR DIVORCE
UNDER HINDU MARRIAGE ACT 1955, there are total 9 grounds on which both husband and wife can ask divorce :
Cruelty Desertion Adultery Insanity Conversion Leprosy Venereal Disease Renunciation
SPECIAL GROUNDS GIVEN
ONLY TO WIFE
Pre-Act Polygamous Marriage Rape, Sodomy and Bestiality
Non – Resumption of Cohabitation after Decree of
Maintenance
CASE LAWS
DARSHAN GUPTA V. RADHIKA GUPTA [(2013) 9 SCC 1]
In this case, Supreme Court held that the petitioner must approach court with clean hands. Grounds of divorce under Sec 13(1) are based on matrimonial offence or fault theory. It is only commission of matrimonial offence by one spouse that entitles the other spouse to seek divorce. Hence, if petitioner
IN NAVEEN KOHLI VS. NEELU KOHLI
[(2006) 4 SCC 558]
A law of
divorce
based mainly on
fault
is inadequate to deal
with a broken marriage. Under the
fault
theory, guilt has to be
proved;
divorce
courts are presented with concrete instances of
human behaviour as they bring the institution of marriage into
disrepute
.
HARVINDER KAUR VS HARMANDER SINGH
CHOUDHRY ON 15 NOVEMBER, 1983
After having found fault with the withdrawing spouse and after
giving her time of one year for reparation, the legislature proceeds to dissolve the marriage because it has utterly broken down. If the marriage has broken down irretrievably, let there be a divorce." It-carries no stigma, but only sympathy. It is a misfortune which
befalls both. No longer is one guilty and the other innocent. No longer are there long contested divorce suits.”
