Exploring Theories of Divorce Under Hindu Law: A Comprehensive Analysis

This article is written by Shatakshi Khadke during her internship with LeDroit India.

The court stated in Chetan Dass v. Kamla Devi that

“marriage concerns are matters of delicate human and emotional interaction. It requires mutual respect, trust, love, and affection, together with just enough playtime to allow for sensible compromises with the partner. Additionally, the connection needs to follow social conventions.”

Marriage, in Hindu tradition, is revered as a sacramental union, symbolizing the spiritual and emotional bond between two individuals. It is an institution where solemn vows are exchanged, promising to uphold and honor marital duties. However, despite the vows and assurances, there are times when one or both of the spouses wants to end the marriage because of a variety of unanticipated circumstances. And that ending of a marriage is what’s typically called a Divorce. A literal definition of a divorce is “the legal separation of two people who were married to each other.”

Historically, Hindu law did not recognize divorce as marriage was considered indissoluble. However, with the formal codification of laws, such as the Hindu Marriage Act of 1955, divorce became legally permissible under specific circumstances. This Act introduced various grounds for divorce, including adultery, cruelty, and desertion, acknowledging the complexities of marital relationships and providing avenues for dissolution when necessary. Nonetheless, the idea of marriage and divorce has undergone a profound shift due to the significant shift in society. Despite the fact that data from one study based on census numbers is horrifying. Divorce or separation is still stigmatized in society, and many people choose not to disclose their split.

• The divorce rate in India is 1.36 million. This translates to 0.11% of the overall population and 0.24% of married people.
• Even more startlingly, 0.61% of married people and 0.29% of the whole population are separated, nearly three times as many as are divorced.
• Compared to men, more women are separated and divorced.
• Compared to other parts of India, the northeastern states have comparatively higher divorce rates: Mizoram has the highest rate (4.08%), which is more than four times greater than that of Nagaland, which is the state with the second-highest rate (0.88%).
• Of the larger states, Gujarat has the highest number of divorce cases—more than 10 million—followed by Assam, Maharashtra, West Bengal, and Jammu & Kashmir.
• The states with the highest number of separation cases include Mizoram, Sikkim, Kerala, Chhattisgarh, and Meghalaya. In northeastern India, there are three of these five states.

The Hindu Marriage Act, 1955, enacted by the Parliament of India, aimed to amend and codify laws related to marriage among Hindus, covering aspects like divorce, restitution of conjugal rights, and judicial separation. Under this Act, substantial grounds for divorce include factors such as adultery, cruelty, desertion, mental illness, incompatibility, conversion, unsound mind, venereal disease, renunciation of the world, and prolonged non-cohabitation. However, the enactment of the Hindu Marriage Act of 1955 introduced a structured framework for divorce, recognizing specific grounds upon which dissolution could be sought.

The theories of divorce delineated within the Hindu Marriage Act, 1955 serve as guiding principles in navigating marital dissolution:

1. Fault Theory: The Fault Theory of divorce requires one guilty and one innocent party for divorce to be granted based on the fault of the guilty party. Adultery, cruelty, two years of desertion, conversion to a non-Hindu religion, incurable insanity or mental disorder, virulent and incurable leprosy, communicable venereal disease, taking of sanyasi (renunciation of world by entering into a holy order), and presumption of death are the seven fault grounds for divorce specified in the Hindu Marriage Act, 1955.
   The wife may file a lawsuit on her own for four reasons: either the husband has committed rape, sodomy, or bestiality since the solemnization of the marriage; or cohabitation has not been resumed for a year or more following the issuance of a maintenance order under Section 125 CrPC or a maintenance decree under Section 18 Hindu Adoptions and Maintenance Act, 1956.Under this framework, divorce is granted based on the fault of the offending party, acknowledging wrongdoing as grounds for termination. Adultery, cruelty, and desertion are recognized as common grounds for divorce under Hindu law.
   1. Adultery refers to consensual sexual intercourse between a married person and another individual who is not their spouse.Cruelty encompasses both physical and mental cruelty, with acts that adversely affect the mental health of the spouse being considered grounds for divorce.
   2. Desertion involves the abandonment of one spouse by the other without rational cause or consent, leading to the repudiation of marital responsibilities.
   3. Insanity or mental disorders
   4. The following two conditions must be met for insanity or mental illness to be recognized as a basis for divorce:
      1. i) The individual has been experiencing irreversible mental illness
         ii) The petitioner cannot fairly be expected to coexist with the respondent due to the respondent’s kind and severity of mental illness, which should be ongoing.Conversion is a reason for divorce in which the aggrieved party is granted a divorce when the other party has converted to another religion, such as Islam, Christianity, Judaism, Zoroastrianism, etc., and has ceased to be a Hindu.Communicable diseases are a ground for dissolution of marriage under fault theory allows for the grant of a divorce remedy in cases where the respondent has a communicable venereal disease, regardless of the length of time the disease has been present. Not telling the petitioner about the disease is not required.
      1. Leprosy contagiousness is to blame for the mentality that makes people not only avoid contact with lepers but also view them with disdain. It is therefore awarded as a divorce remedy. It is the petitioner’s responsibility to provide proof of this. Leprosy will no longer be a reason for divorce under five personal laws, including the Hindu Marriage Act, according to the Personal Laws (Amendment) Bill, 2018.

Wife’s Mistakes Lead to Divorce:

• Sodomy, Rape, and Bestiality
  Under the HMA, SMA, and Divorce Act, the wife alone may file for divorce on the grounds of rape, sodomy, and bestiality.

Laws & Regulations:
As stated in the HMA and SMA, the grounds for prosecution include “that the husband, since the solemnization of marriage, been guilty of rape, sodomy, and bestiality.”
According to Section 375 of the IPC, rape is a crime.
According to IPC 377, sodomy and bestiality are considered unnatural offenses.
A guy is guilty of sodomy and his wife may file for divorce if he has an affair on her without her agreement.

• NON-RESUMPTION OF COHABITATION FOLLOWING A MAINTENANCE ORDER DECREE
  The Marriage Laws (Amendment) Act, 1976 added this new ground to the Hindu Marriage Act and the Special Marriage Act. The layout is as follows:
  A wife may also file a petition for the dissolution of her marriage on the grounds that: (1) a decree or order, as applicable, has been passed against the husband in a suit under Section 18 of the HAMA, 1956, or in a proceeding under Section 126 of the CrPC, 1973, awarding maintenance to the wife despite the fact that she was living apart; and (2) cohabitation between the parties has not been resumed for a year or longer since the passing of such decree or order.
• Mutual Consent Theory: In contrast to fault attribution, this theory underscores the significance of mutual agreement between spouses. Divorce proceedings can proceed smoothly when both parties voluntarily assent to the dissolution, reflecting a harmonious resolution achieved through consensus. The right to marry and the right to divorce are closely related, according to proponents of the consent theory of divorce. The ability to dissolve a marriage by consent should be granted to the parties involved, if they are allowed to do so for the purpose of marriage. Additionally, proponents of this theory assert that the consent theory of divorce will lead to a decrease in the number of unhappy marriages and an increase in happy ones. It will improve harmony within the family and allow the partners to leave with dignity Frequently, after entering into a contract or deal, we realize that we should back out for the benefit of both the transaction and ourselves. Since marriage is a special kind of contract, it should be handled similarly. With mutual permission, the couple should be entitled to end the marriage if they feel that being married was a mistake. There are other possibilities as well. For example, the spouses may feel that they are not compatible and cannot coexist peacefully; in this instance, they ought to be given the option to dissolve the union. If not, things can get worse and the couples might get into marital trouble.

• Irretrievable Breakdown Theory or No-Fault theory: Recognizing the irreparable deterioration of marital ties, this theory allows for divorce even in the absence of mutual consent. It acknowledges that certain relationships may reach a point beyond salvage, necessitating legal dissolution to afford individuals the opportunity for a fresh start. According to the breakdown theory of divorce, a marriage should be dissolved if it has failed and there is no chance of it succeeding. According to the notion, divorce should be given if a marriage has irretrievably failed. It is preferable to end a marriage amicably by consent when neither partner can coexist happily and enjoy the advantages of matrimony; there is no point in holding onto the hollow shell. The theory assumed that the connection had de facto broken down. It is presumed by law that a marriage is completely unworkable, both emotionally and physically dead, with no chance of the parties ever getting back together if they are living apart for longer than two or three years (with or without any reasonable cause) and all of their attempts to rebuild the foundation of the marriage have failed.

These theories form the cornerstone of divorce law under Hindu jurisprudence, offering a multifaceted approach to marital dissolution. The legal process associated with divorce under Hindu law entails several steps:

• Filing a Petition: Either spouse initiates proceedings by filing a petition in a court of law, citing grounds for seeking divorce as outlined in the Hindu Marriage Act, 1955.
• Summons and Response: The court serves summons to the other spouse, who must respond within a specified timeframe, indicating their stance on the matter.
• Mediation: If disputes persist, the court may facilitate mediation sessions, allowing both parties to negotiate terms under the guidance of a neutral mediator.
• Contested Hearing: Should mediation fail to yield resolution, the case proceeds to a contested hearing, wherein both parties present evidence and arguments before the court.
• Final Decree: Upon deliberation, the court issues a final decree of divorce if the petitioner’s case proves successful, formalizing the termination of marriage and addressing ancillary matters such as custody, support, and property division.

The introduction of fault and no-fault divorce theories has significant implications for the legal framework surrounding divorce under Hindu law. While fault-based divorce requires one party to prove the guilt of the other, no-fault divorce simplifies the process by focusing on the irretrievable breakdown of the marriage. One important distinction between no-fault and fault-based divorces is that the former does not usually require the parties to separate from one another for a certain amount of time prior to filing. In certain states, assigning fault can lead to a greater division of marital assets. Alimony for the non-faulting spouse may also be awarded throughout the fault-based divorce process. Some find fault-based divorces more appealing since they offer higher spousal support or alimony, as well as a bigger portion of the marital assets.

In conclusion, the theories governing divorce within Hindu law offer a comprehensive framework for understanding the intricacies of marital dissolution. Ranging from fault-based theories assigning blame to one party, to no-fault theories emphasizing relationship breakdown, these perspectives mirror the evolving landscape of family law in Hindu society. As legal interpretations continue to progress, it’s crucial to approach the divorce process with sensitivity and comprehension, acknowledging its profound impact on individuals and families. The provisions outlined in the Hindu Marriage Act of 1955 predominantly rely on fault or guilt theories, as evidenced by the grounds specified in subsections (1) and (2) of Section 13. Additionally, avenues for divorce through mutual consent are provided under Section 13(B) and Section 14. The concept of ‘Irretrievable Breakdown of Marriage’ has been introduced by the Government of India as a potential ground for divorce under this Act. Through legislation and the introduction of various divorce theories, spouses now have increased independence and self-reliance, enabling them to pursue happiness separately rather than enduring unhappy unions.