Recent Developments in Theories of Divorce
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Marriage unlike any other Civil Contract was not easy to dissolve as it is today. When in 1857 the first Matrimonial Causes Act was passed the jurisdiction over the Matrimonial matters was transferred from ecclesiastical Courts to Civil Court, then the ground of divorce was only one. Husband can seek divorce only on the ground of adultery but wife could not seek divorce on simple ground of adultery of her husband. It was later on the desertion and cruelty were added as a ground of divorce and either party can be permitted to seek divorce.
Offence or Guilt Theory
Offence or Guilt theory classifies divorce into two grounds, (i) Marriage is an exclusive union and if not an exclusive union, it ceases to be marriage. It implies that parties will live with each other in harmony and in mutual confidence. (ii) Matrimonial offences are committed to the notion of criminality and divorce may be granted as a mode of punishment to the guilty.
During the early formation of law on divorce in England, and most of the part of Commonwealth countries, also in most of the states in USA, Offence Theory was considered as most appropriate ground of divorce, where a marriage can be dissolved only if one of the parties to the marriage has committed matrimonial offences, and if both of the parties have committed matrimonial offences then divorce to the petitioner cannot be allowed following the theory of Doctrine of recrimination.
The Indian Divorce Act, 1869 adopted the then existing English Law principles where under s 7 of the Act the Marriage can be dissolved on the petition of husband on the ground of wife’s adultery and on wife’s petition on the ground that the husband has changed his religion and has married again, or has been guilty of incestuous adultery, or bigamy with adultery, or marriage with another woman with adultery, or adultery coupled with cruelty, or adultery coupled with desertion without reasonable cause for a period of two years, or of rape sodomy or bestiality. Insanity and Cruelty on the same pattern asunder the Hindu Marriage Act, 1955 were added as ground of divorce by the amending Act, 1988.
The Special Marriage Act, 1954 amended by the Marriage Law Amendment Act, 1976 recognised 8 other grounds of divorce based on guilt theory and two additional grounds where wife alone can seek divorce, i.e, Rape, Sodomy or bestiality of husband. The right grounds are: Adultery; Desertion for at least three years, imprisonment for at least 7 years or more, cruelty, Venereal Diseases on the condition that it is not communicated from the petitioner, incurable insanity or continuous or intermittent mental disorder, and presumption of death.
The Hindu Marriage Act, 1955 as amended by Marriage Law (Amendment) Act, 1976 lays 7 ground of divorce based on guilt theory. They are Adultery, Conversion to non-Hindu Religion, incurable insanity or mental disorder, virulent and incurable leprosy, venereal disease in communicable form, taking to sanyasa, and presumption of death.
The Consent theory as we know today took a long walk in its development. it was thought that freedom of divorce will lead to chaos and it would be immoral to lead a couples made by God itself to live apart. In India it was recognised not until Special Marriage Act, 1954 and Hindu marriage Act, 1955 (after the amendment of 1976). The freedom of divorce under Muslim personal law was recognised since time immemorial in two forms, namely, (i) Khul, and (ii) Mubbaraat. In Khul the desire for divorce emanates from the wife while in Mubbaraat the aversion is mutual; both the parties desire dissolution of marriage. Mubbaraat denotes the act of freeing one another mutually, and the proposal for divorce may emanate from either spouse.
The basic postulates of breakdown theory is that if a marriage has broken down without any possibility of repair (or irretrievable ), then it should be dissolved, without looking into the fault of any party.
In 1964, on the basis of the Australian Matrimonial causes Act, 1959, on a private member’s Bill breakdown principle was enacted in the Hindu Marriage Act by remodeling clauses (viii) and (ix) of section 13 (1) and numbering the provision as section 13 (1A). The provision reads as under;
“Either party to the 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—
- That there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upward after the passing of a decree for judicial separation in a proceeding to which they were parties; or
- That there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Similar provisions were laid down in special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936.