Theories of Divorce

Guilt or Fault theory of Divorce

• Marriage end- if one of parties- after solemnization-
committed some matrimonial offence.
• Offence- must be recognized as ground of divorce.
• If any party- after solemnization- committed some
matrimonial offence –other party- move to court.
• Other party also guilty- theory not applicable.
• Ex- one party- adultery- recognized ground for divorce-
other party should be innocent.
• Presently- 9 grounds- available to both parties. 4
additional grounds- available to wife & not the husband.
 Theories of Divorce
Consent Theory of Divorce
• As parties- free to enter wedlock- free to dissolve such
marriages.
• No need to linger on- marriage not fruitful.
• If such marriages- allowed to be continued-bad impact on
parties & children of such marriages.
• Theory mentioned in S.13B, HMA & S.28 Special Marriage Act.
• If parties- not live together- period of 1 year or more than 1 yr-
mutually agreed to part their ways- jointly have to present
petition for divorce on basis of mutual consent- District Court.
• Theory- Pros & Cons- makes divorce trouble free/ trouble some.
As parties- easily get rid of each other in short span but if
parties- no agree- divorce- other party is also stuck.
 Theories of Divorce
Irretrievable Breakdown of Marriage
• If marriage- broken completely- no chances of
continuing- better to break marriage completely.
• Accepted in HM(Amendment) Act,1964- parties
living separately- 2 yrs & no resumption of
cohabitation- after J.S./ RCR.
• Sufficient evidence- marriage broken beyond
any repair- no point in retaining it.
• After Amendment of 1976, period of 2 yrs in
case of J.S/RCR- now changed to 1 yr.
 Divorce
• A legal process to end marriage.
• Process of terminating marriage/ marital union by court/ other competent auth.
Grounds for Divorce available to either party
1. Adultry
• Consensual sexual intercourse b/w a married person & other person of opposite
sex, not his/her spouse during subsistence of marriage.
• First ground of divorce- available to innocent party.
• Voluntary/ intentional act of person.
• If involuntary act- on account of drugs, liquor etc.- adultery not committed.
• If woman raped- not voluntary act.
• sexual intercourse b/w a person whose marriage dissolved i.e. divorcee or
person not married- not adultery.
• Artificial insemination- no adultery.
• For adultery- 2 parties- physically present & involved in sexual act.

For adultery- some degree of penetration is necessary.

 Proof of Adultery
• Act committed- utmost secrecy- becomes difficult to
establish it so direct proof- not possible.
• Can be proved by:-
1. Circumstantial Evidence
2. Contagious disease in pvt. Parts.
3. Giving birth to a child & proof of non-access of
husband.
4. Admission by Party
Case laws
 P. Dhanalakshmi v. P. Ramachandra
 Cruelty
• Considered to be a major ground.
• S.13 1(ia) deals with it.
• No precise definition of word “cruelty” as acts/conduct
constituting crulty- no numerous/varied- impossible to
fit in water tight compartments.
• Most accepted definition- Russell v. Russell, conduct of
such a character as to have caused danger to life, limb
or health (bodily or mental) or as to give rise to a
reasonable apprehension of such danger.
• Types of cruelty- physical/ mental
 Physical/ Mental
Physical
• Act of physical violence against another spouse resulting in injury to body,
limb or health.
• Single act of physical violence is enough.
Mental
• Conduct- mental pain & suffering to other spouse- become impossible to
live.
• Such intensity- becomes impossible to live together.
• Ambit of crulty after 1976 Amendment- incorporation of mental crulty-
widened – impossible to fit in water tight compartments.
• While constituting it- consider- all circumstances, background of parties,
social status, custom, tradition, caste,community, upbringing.
• Court- not consider- couple as husband & wife- but particular man &
woman.
• In India- intention is not important.
 Case Laws
 Dr. Naresh Purohit v. Dr. P.K. Shobhana
 Gurmohinde Pal Singh v. Kamal Mohini
 Rajesh Kumar Singh v. Rekha Singh
• Not necessary- cruelty should aim at petitioner.
• Even if- not aimed at petitioner but other
person, spouse can go & ask for cruelty because
ambit of mental cruelty is so vast that almost
everything is included in it.
 Desertion
• Abandonment of spouse by other.
• Should be without consent of other party & without any reasonable excuse.
• After statutory period of 2 yrs of separation finishes from date of when fact
of separation & intention to desert co-existed- aggrieved spouse- move to
court & file a petition.
Ingredients of Desertion
1. Factum of separation
2. Animus Deserendi (intention to forsake)
3. Without consent of petitioner
4. Without any reasonable cause
5. For continuous period of 2 yrs immediately before presentation of petition

Necessary that all ingredients must be complied with.

 Desertion- Types
Actual Desertion
• Physical departure & intention to abandon other
spouse- co exist.
• Moment- co-exists, desertion begins& after a
statutory period- 2 yrs, aggrived party- move to
court & apply for desertion as ground for Divorce
provided it is also without any
reasonable cause & without consent of petitioner.
Case law
 Usharani Pradhan v. BrajKishore Pradhan
 Desertion- Types
Constructive Desertion
• Not only withdrawal from place but also from
state of things.
• If one spouse- make life of other spouse so
miserable- other party- compelled to leave
home or even if they continue to live under one
roof as strangers & not as husband & wife.
Case Law
 Namita Das v. Amiya Kumar
 Without Reasonable Cause
• Other essential- Without Reasonable Cause.
• If person leaves matrimonial home- with reason- no desertion.
Case Law
 Chemari Balan Nair v. Manikkoth Vilasini
Termination of Desertion
1. Resumption of Cohabitation- when parties resume Cohabitation before petition
presented, desertion comes to an end.
• It is necessary- both parties- intention to resume Cohabitation
2. Supervening animus reverendi (offer of reconciliation)- must be unconditional &
bonafide- shows sincere efforts on part of deserting spouse to resume cohabitation &
bring all differences to an end.
Burden of Proof-
• on petitioner to prove- all ingredients.
• Prove- fact of separation/intention/without consent/reasonable cause/ petition
presented after expiry of statutory period of 2 yrs- when disertion first commenced.
• Case- prove beyond reasonable doubts.
 Conversion to another Religion
• S.13 (i)(ii)- when person formally converts himself/herself-
another religion & ceases to be Hindu- other party- can move to
court.
• Necessary- other party move to court & apply for divorce.
• Conversion of spouse- another religion- no automatically leads to
dissolution.
• Petitioner- prove 2 things:
1. Respondent- ceased to be Hindu.
2. Res.- converted to another religion.
• A person can be converted to another religion by his conduct
also.
 Smt. Savita Bose v. Noshad Ahmed
 Unsoundness of Mind
• Res. Incurably- unsound mind- continuous period of atleast
2 yrs immediately before presenting divorce petition- other
party- move to court- divorce decree.
• Explanation lays down that inertial disorder means:
1. Mental illness arrested or incomplete development of
mind.
2. Psychopathic disorder- abnormally aggressive or seriously
irresponsible conduct which requires medical treatment.
3. Any other disability of mind.
4. Includes schizophrenic.
 Unsoundness of Mind
Two Ingredients
a. res.- incurably of unsound mind or suffering
continuously or intermittently from mental
disorder.
b. Mental Disorder- such kind & to such an
extent that it can not be expected to live with
that person.
Case Law
 Krishna Bhat v. Srimathi
 Leprosy
• Known as Hansen’s Disease- long term infection by
bacteria.
• Should be virulent & incurable.
• If leprosy- curable- party can not move to court.
• Essential ingredients are:
1. Party suffering from leprosy.
2. Virulent & incurable.
Case Law
 Swaroyya Laxmi v. Dr. G.G. Padma Rao.
 Venereal Disease
• S. 13(i)(v)- provides other party- suffering from
venereal Disease- communicable form.
• Ground for both- J.S. & Divorce.
• Before amendment, 1976- time period required- 3 yrs.
• After amendment- no time period required.
• Presently- petitioner- required to show- other party
suffering from it & it is incurable.
Case Law
 Mr. X v. Hospital Z
 Renunciation of World
• S.13 (1)(vi)- another ground for divorce.
• Two conditions are:
1. Person must have renounced world
2. He must have entered into holy order.

Conditions are mandatory- to move to court.

• Renunciation- civil death of person.
• Mere declaration/ wearing clothes of sanyasi- not sufficient- necessary that
person should undergo ceremonies prescribed for becoming a sanyasi.
• Renunciation- final & absolute repudiation, abandonment & withdrawal of
world.
Case Law
 Deveerawwa v. Gangawa
 Presumption of Death
• Last ground- both spouse.
• If whereabouts of person- not known- period of 7 yrs or
more- other party- move to court.
• The expression “those persons…..heard of it”- all nearest
relatives & friends under it.
• If person- no obtain- decree before another marriage-
other spouse if she/he returns- sue- for Bigamy U/s. 494
IPC & present marriage- declared as void as laid down-
S.11, HMA.
Case Law
 Bulak v. Bulak
 Grounds available to wife only
Polygamous Marriage before 1955 Act
• Before Act came into force-if husband had more than 1
wife- any of wives have got remedy to move to court,
provided other wife is alive.
• The essentials are:
1. Wives married to person before Act came into force.
2. They are alive when petition is presented.
3. The marriages legally exist.
Case Law
 Jamal kaur v. Lal Singh
 Grounds available to wife only
Rape, Sodomy or Bestiality
• Husband guilty- RSB- remedy available to wife.
• No definition given of RSB.
• Rape defined in S.375 IPC.
• Husband- convicted of raping his wife- if she is below 15 yrs of age. Her
consent is immaterial.
Sodomy- carnal intercourse against order of nature. It could be anal
intercourse by a man with his wife or another woman or even with a man.
Bestiality-
• sexual union with an animal.
• Can be committed by a man or woman.
• Remedy- only to wife.
• Husband- no remedy under this provision- ask for divorce under cruelty.
• Definition of Sodomy or Bestiality- S.377 IPC
 Grounds available to wife only
Maintenance order passed in favor of wife &
non resumption of cohabitation
• Maintenance order- U/s. 18 hindu adoption &
Maintenance Act & S.125 CrPC- no resumption
of cohabitation- after decree- period of 1 yr-
wife court- divorce.
• Remedy to wife only & not husband
 Grounds available to wife only
Repudiation of Marriage( option of puberty)
• wife- right to repudiate her marriage.
• The essential ingredients :
1. At time marriage- below 15 yrs of age.
2. She repudiated it after attaining that age but
before she attained 18 yrs of age.
3. Consummation of marriage- immaterial.
Case Law
 Savitri Devi v. Kailash Jat
 Divorce by Mutual Consent
• S.13-B, HMA- deals with it.
• The essentials are:
1. Both parties- move to district court- presentation of petition.
2. Parties- lived separately- period of 1 yr or more.
3. Not able to adjust with each other & mutually agreed that
marriage is dissolved.
4. After petition presented- wait for at least 6 months & not later
than 18 months.
5. During this period- any party- withdraw their petition.
6. Before period of 18 months- move to court for second motion.
7. After due inquiries – court shall pass decree.
 Case Laws
• Anil Kumar Jain v. Maya Jain
• Nikhil Kumar v. Rupali Kumar
• Recently two- judge bench consisiting of
Justice A.K. Goel & V.V. Lalit had laid down that
a period of 6 months, waiting period is not
mandatory requirement & can be waived
under certain circumstances.
 Irretrievable Breakdown as a ground for
divorce
• Under Marriage Laws (Amendment) Bill,2010- which could not become
act, certain provisions relating to IB- inserted U/s. 13 C HMA.
• Parties to marriage- lived separately for not less than 3 yrs immediately
before petition for dissolution is presented in court.
• If court-satisfied- marriage broken down Irretrievably-on basis of
evidence produced- grant decree of Divorce.
• Present scenario- Irretrievable- still not ground for divorce.

• However S.C. under power U/A. 142 have given relief to some of
parties whose marriage were broken beyond repair & there were no
chances of reconciliation.
Case Law
 Mini Appa kanda Swami v. M. Indra
 Shilpa Shailesh case (2023)