INTRODUCTION

Earlier divorce was unknown to general Hindu law as marriage was regarded as an
indissoluble union of the husband and wife. Manu declared that a wife cannot be released by
her husband either by sale or by abandonment, implying that the marital tie cannot be severed
in anyway. Although Hindu law does not contemplate divorce yet it has been held that where
it is recognized as an established custom it would have the force of law. In the absence of
a custom to the contrary, there can be no divorce between a Hindu husband his wife, who by
their marriage had entered into a sacred and indissoluble union, and neither conversion, nor

degradation nor loss of caste. Nor the violation of an agreement against polygamy dissolved
the marriage tie.

According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the

case of the unapproved form of marriage. But, Manu does not believe in discontinuance of
marriage. He declares” let mutual fidelity continue till death; this in brief may be understood
to be the highest dharma of the husband and wife.”

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.

Once it came to be established that marriage was a civil contract, it was the logical next step
to recognize that it was also a dissolute union. However when came to be accepted as a
contract, it was not regarded like an ordinary contract. It is because marriage has always been
considered as a social institution. It is asserted that there is a social interest in the preservation
and protection of the institution of marriage. This is the main reason why the institution of
marriage is hedged in with all-round protection. Under the law of evidence, communication
between husband and wife regarded as a privileged communication. The domestic life as such
is accorded protection by multifarious laws. It was, therefore, inevitable to consider marriage
as a special contract and, being a special contract, the marriage could not be put to an end like
an ordinary contract. This may be illustrated from English law. In England, divorce was
recognise for the first time in the year 1857 1. For a long time adultery was a ground of
divorce, then cruelty and desertion were added. And these three were the only grounds of
divorce for considerable time2.

The grounds of divorce may be looked at from two aspects : ( i ). Marriage is an exclusive
union and if it is not an exclusive union, it ceases to be marriage. Adultery destroy the very
foundations of marriage. Marriage also implies that parties will live with each other in
harmony and in mutual confidence. Cruelty or an apprehension of cruelty, undermines these
basic requirement of marriage. Basic assumption of marriage is that both the parties will live
together; if one party deserts the other, this basic assumption no longer exists. Thus, adultery,
cruelty and desertion are destructive to the very foundation of marriage. ( ii ). Looked at from
another angle, these grounds are the matrimonial offences committed by one of the parties to
marriage. Some notion of criminality is involved. In that sense, divorce is regarded as mode
of punishing the guilty party who had rendered himself or herself unworthy of consortium.

1
The Matrimonial CausesAct,1857
2
See Modern hindu law , Dr. Paras Diwan, 22nd Edition 2013, page no. 68
 What is divorce?

A divorce decree establishes the new relations between the parties, including
their duties and obligations relating to property that and wife are unable to
resolve through mutual cooperation. Historically, the most important question in a divorce ca
se was whether thecourt should grant a divorce. When a divorce was granted, the resolution
of continuing obligations was simple : the wife was awarded custody of any children, and the
husband was required to support the wife and children.
Morden divorce laws have inverted the involvement of courts. The issue of whether a
divorce should be granted is now generally decided by one or both of the spouses.
Contemporary courts are more involved in determining the legal ramifications of the
marriage breakup, such as spousal maintenance, child support, and custody. Other legal
issues relating to divorce include court jurisdiction, antenuptial 3 and postnuptial agreements,
and the right to obtain a divorce. State laws govern a wide range of divorce issues, but
district, country, and family courts are given board discretion in fixing legal obligations
between the parties.
Hindu Marriage Act,1955 state about different grounds of divorce in section 13 as:

13. Divorce- (1) Any marriage solemnized, whether before or after the
commencement of the 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
(ia) has, after the solemnization of the marriage, treated the petitioner with
cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion ; or
(iii) has been incurably of unsound mind, or has suffering continuously or
intermittently 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
include 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
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from veneral disease in a communicable form; or

3
A contract entered into prior to the main agreement by the people intending to marry or contract
with each other.
(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 willful
neglect of the petitioner by the other party to the marriage, and its grammatical
variations and cognate expression shall be construed accordingly.

(1-A) Either party to a marriage, whether solemnized before or after the

commencement of this Act, may also present a petition for the dissolution of the
marriage by a decree of divorce on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for
judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of one year or upward after the passing of a decree of
restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a
decree of divorce on the ground-

(i) lo in the case of any marriage solemnized before the commencement of this Act,
that the husband had married again before the 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;

(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, (78 of
1956), or in a proceeding under Section 125 of the Code of Criminal
Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of
Criminal Procedure, (5 of 1898), a decree or order, as the case may be, has been passed
against the husband awarding maintenance to the wife
Not with standing 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.

Explanation.- This clause applies whether the marriage was solemnized before or after the
commencement of the Marriage Law (Amendment) Act, 1976.

13-A. Alternate Relief in Divorce Proceedings.- If any proceeding under this

Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the
petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1)
of Section 13, the court may, if it considers it just so to do having regard to the circumstances
of the case, pass instead a decree for judicial separation.
13-B. 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, 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 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 mean
time, 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 decree4.

Theories of divorce

Offence or guilt theory

This guilt theory of divorce differentiates the parties on the ground of guilt and innocence.
Innocent party has right to get divorce on the ground that other party has committed a
matrimonial offence or a guilty party.

This theory was taken very far in English law, so much so that if both the parties independent
of each other, committed matrimonial offence, the marriage could not be dissolved. So when
both parties are guilty then divorce could not be granted, there must be one guilty party and
one innocent party.

Section 13 of the Hindu marriage Act is based on guilt theory. Some grounds of divorce is
based on the guilt of respondent. Section 23 of the Hindu marriage Act laid down that
the petitioner will not be allowed to take advantage of his or her own wrong or disability in
divorce petition.

If guilt of the respondent is the direct or indirect outcome of some wrong or disability of the
petitioner then petitioner will not be entitled to get matrimonial relief or divorce, it
is immaterial that petitioner has proved his case beyond all doubts.

Will theory

According to this discreditable theory one can divorce one‘s spouse whenever one pleases.
Marriage is more difficult than divorce here, whereas the case should be just the opposite.
This theory is recognised by the Mohammedan law6. A Muslim husband of sound mind may

4
Section 13, Hindu Marriage act ,1955
divorce his wife whenever he so desires without assigning any ground therefore 5. He need not
seek the assistance or intermeddling of a judicial officer or of the counsel of his community.
Although the Mohammedan Law favours the husband only in this matter, yet we can imagine
a rule which gives the right to dissolve marriage at will to both the parties.
Both the theories, that marriage is unbreakable and that marriage subsists during the pleasure
of one or any of the parties thereto, touch the opposite extremes. They are alike in one respect
that both are unreasonable and unjust. The first compels a spouse to bear the yoke of even
torturous marriage also. The second makes marriage a play thing of the party entitled to
proclaim divorce at will. In the first case the lawmaker has arbitrarily made marriage a
prison. Marriage is for making a loving home, not a rigorous imprisonment, and there should
be an escape from strained relation. In the second case, a party may dissolve marriage
arbitrarily disregarding the sentiments, services, helplessness and above all, the innocence of
the other party. As the shastric Hindu Law had faith in the first theory 6, the question of
second theory did not arise. The customary Hindu Law which recognised divorce among the
so called low communities also did not recognised divorce at the pleasure of any party o the
marriage. The Hindu Marriage Act gives no room to the second theory.7

Consent theory

Consent theory of divorce is based on the consent of both parties to the marriage.
This theory is established against the guilt theory because if marriage is a contract based upon
the free volition of the parties then parties should have equal freedom to dissolved it.

However marriage is a sacramental ceremony in Hindu but due to incorporation of the free
consent in section 5 of the Hindu Marriage Act provides room for this theory. Our legislation
amended Hindu Marriage Act in 1976 and inserted a new section as 13 B which provides
Divorce by mutual consent of the parties.

The very basis of marriage is mutual fidelity and if for any reason the parties feel that mutual
fidelity can not be continued then they should have freedom to dissolve their marriage. The
main criticism of consent theory of divorce that it will bring about chaos and will lead to
hasty divorce. But it is not true because when parties to the marriage feel that they can’t live
together and it is better to end this nuptial knot then law should provide them a chance to
restart their life with new vigor.

This is just like correction of error made by the both parties to the marriage when they realise
that they can not live together and their marriage has turned out to be bad bargain.
5
Moonshee Buzul-ul-Raheem v. Luteefut-on-Nissa, (1861) 8 MIA 379
6
Section 13 B of Hindu Marriage Act, 1955- 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 thy have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made no 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.]
7
Ramesh Chandra Nagpal, ―Modern Hindu Law‖ Eastern Book co.
Irretrievable theory

The basic human and social problem is of the maladjusted couples. Many marriages fail not
because of the wickedness of one party or the other, but they just fail. Many couples try, and
try their best to make their marriage a success but they fail.8 Sometimes marriages fail
because of selfishness, boorishness, callousness, indifference and thinks like these on the part
of one of the parties to the marriage. All this does not amount to any matrimonial offence.
Yet, the marriage is not get-going. There are several cases in which parties live separate and
apart from each other for several years and just because one of the parties wants the marital
bond to continue, there is no way out for the other. In the context of a Muslim case, V.R.
Krishna Iyer, J. said: ―daily, trivial differences get dissolved in the course of time and may
be treated as the teething of early matrimonial adjustment. While the stream of life, lived in
married mutuality, may wash away smaller pebbles, what is to happen if intransigent
incompatibility of minds breaks up the flow of the stream? In such a situation, we have a
breakdown of the marriage itself and the only course left open is far law to recognize what is
a fact and accord a divorce.9
Breakdown of marriage as the sole basis of divorce is now recognised in several countries of
the world. The Soviet Union recognized it in 1944. In most of the communist countries it is
recognized basis of divorce. In some states of the United States it is recognized. In England—
so far considered the citadel of conservatism—it was recognized in 1969. 10It is more and
more now accepted that for divorce, why should it be necessary for one party to prove that
the other party has in a culpable manner violated the marital bond. To use the language of the
law of the German Democratic Republic, "If a marriage...has lost its significance for the
married partners, for the children and thereby for the society, if it has become merely an
empty shell, it must be dissolved, independently, whether one of the married partners, or
which of the two, bears the blame for its disintegration11 roubles.

Frustration theory

The wedlock may be frustrated for a party to marriage even though the other party is not
guilty of any marital offence. This may happen when he or she is suffering from mental
unsoundness or has changed his religion or renounce the world or has disappeared for a very
long period. If a person prefers a release from such a fruitless marriage he or she should be,
according to this theory helped. Divorce is a relief from this point of view. The Hindu
Marriage Act recognises these grounds as being good for divorce.

Indissolubility of marriage theory

According to this theory marriage is an unbreakable tie between husband and wife. It is a
union of bone with bone and flesh with flesh. It is eternal. Even if the relations between the
parties are unhappy, they have to live and die with it. This is the theory of the shastric Hindu
Law.4 The marriage could be dissolved neither by the act of the parties nor by the death of
one of them. Divorce was an anathema. However, this was the law for the regenerate castes,

8
Paras Diwan, ―The Breakdown Theory in Hindu Law‖ 1969 Lawyer (J) 192-204
9
Abubacker Haji v. Mamu Koya, 1971 KLT 663.
10
See Paras Diwan, Marriage and Divorce Law Reforms (The Marriage Laws (Amendment) Act,
1976); ―the Breakdown Theory in Hindu Law‖ 1969 Lawyer (J) 192-204.
11
Breakdown; Australia and Germany (1969) ICLQ 896.
the so called upper three castes. The shudras and tribes recognised divorce and had their
customs relating there to. The Hindu marriage Act abandoned the shastric position. Marriage
is no more unbreakable rope even for the regenerate caste. If the necessary conditions as
given under section 13 and 13B exist, every Hindu is entitled to the dissolution of his or her
marriage. The Hindu Marriage Act5 is indeed a revolutionary piece of legislation from this
point of view.

Case law

In Tribat Singh v. Mst. Bimla Devi12, the fact was that a married woman had
been absenting herself from her house for four to six days at a stretch and had
been seen more than once with a total strange to her husband’s family, and no
explanation was given by her for having been seen in the company of that
stranger at different places, leads to an irresistible conclusion that she had
contracted illicit connection with that man and had been living in adultery with
him.

In Smt. Satya v. Sri Ram13, the Court observed that where the husband himself,
his sister and his parents were always crazy to have a child in the family but the
wife always dashes their hopes by resorting to termination of pregnancy twice,
this conduct of the wife amount to mental cruelty at least, if not physical to her
husband and the husband is well within his right to claim the decree of divorce
on that ground.

In Ashok Hurra v. Rupa Bipin Zaveri 14, the Supreme ourt has observed that
where wife and husband filed divorce petition under section 13-B ( mutual
consent) and one of them withdraw his/her consent thereafter, the court has the
discretionary power to proceed the case and to grant divorce decree if the
evidences were in favour of the petitioner by overriding the general principle
“after submission of petition, if any one of the spouse withdraw the consent, the
Court will not sanction divorce on the petition before it”.

12
AIR 1958 J&K 72
13
AIR 1983 P&H 252
14
AIR 1997 SC 1266
 Conclusion
On an all-India level, the Special Marriage Act was passed in 1954, is an inter-religious
marriage law permitting Indian nationals to marry and divorce irrespective of their religion or
faith. The Hindu Marriage Act, in 1955 which legally permitted divorce to Hindus and other
communities who chose to marry under these acts. The Indian Divorce Act 1869 is the law
relating to the divorce of person professing the Christian religion. Divorce can be sought by a
husband or wife on grounds including adultery, cruelty, desertion for two years, religious
conversion, mental abnormality, venereal disease, and leprosy. 15 Divorce is also available
based on mutual consent of both the spouses, which can be filed after at least one year of
separated living. Mutual consent divorce can not be appealed, and the law mandates a
minimum period of six months (from the time divorce is applied for) for divorce to be
granted.16 Contested divorce is when one of the spouse is not willing to divorce the other
spouse, under such condition the divorce is granted only on certain grounds according to the
Hindu marriage act of 1955. While a Muslim husband can unilaterally bring an end to the
marriage by pronouncing talaq, Muslim women must go to court, claiming any of the grounds
provided under the Dissolution of Muslim Marriage Act.
Official figures of divorce rates are not available, but it has been estimated that 1 in 100 or
another figure of 11 in 1,000 marriages in India end up in divorce.
Various communities are governed by specific marital legislation, distinct to Hindu Marriage
Act, and consequently have their own divorce laws:

 The Parsi Marriage and Divorce Act, 1936

 The Dissolution of Muslim Marriage act, 1939
 The Foreign Marriage Act, 1969
 The Muslim Women (Protection of Rights on Divorce) Act, 1986[
An amendment to the marriage laws to allow divorce based on "irretrievable breakdown of
marriage" (as alleged by one of the spouses) is under consideration in India. [142] In June 2010,
the Union Cabinet of India approved the Marriage Laws (Amendment) Bill 2010, which, if
cleared by Parliament, would establish "irretrievable breakdown" as a new ground for
divorce.[143] Under the proposed amendment, the court before proceeding to the merits of the
case must be satisfied by the evidences produced that parties have been living apart for a
continuous period of not less than three years immediately preceding the presentation of the
petition.

15
''Vaklino.com'' - "The Hindu Marriage Act, 1955" (Section 13)". Vakilno1.com. Retrieved 2012-03-
27.
16
"''indiankanoon.org'' - "Section 13B in the Hindu Marriage Act"". Indiankanoon.org. Retrieved 2012-
03-27.