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Divorce Under Fault And No-Fault Theory

Marriage is regarded as a sacramental union under Hindu Law and a sanctified contract under Muslim Law. Marriage is a social institution wherein two individuals, capable of entering into a marriage, pledges themselves to sustain and maintain the marital obligations. But, in spite of the pledge and promises, due to various unforeseen events and occasions, there sometimes arises a time when either both of the spouses or one of them desires for the dissolution of marriage. And that dissolution of marriage is commonly known as a divorce.

Divorce in literal sense means 'the legal separation of two individuals who were married to each other'. In earlier times under Hindu Dharma Shastra, marriage was considered as a sacred bond and there was no existence of divorce until 1955, when it was codified. After that when The Hindu Marriage Act, 1955 came into existence, Section 13 of the Act provided with the grounds on which the parties can seek a decree of divorce from a competent court having jurisdiction to try and entertain such petition.

The Hindu Marriage Act, 1955 lays down three theories for the law of divorce, namely, 'Fault theory', 'Break down theory' and 'Consent theory'.

Under the 'fault theory', marriage can be dissolved only when either of the spouses had committed any matrimonial offence. And only the innocent party can seek the remedy of divorce under this theory. However, under the 'no-fault theory', the spouse asking for a divorce does not have to prove that the other spouse did something wrong or any matrimonial offence.

Fault Theory of Divorce
As mentioned earlier, under the 'fault theory', a marriage can be dissolved only when either of the spouses had committed any matrimonial offence. It is necessary that one spouse had committed a matrimonial guilt, whereas the other spouse is absolutely an innocent party. Here, the innocent spouse is considered to be as a victim and he or she is given the liberty to break the marital tie by exercising the right of divorce against the other spouse who is at fault by committing a matrimonial culpability.

On the basis of this theory, most of the grounds of judicial separation and divorce are framed under 'Section 13(1)' of the Hindu Marriage Amendment Act, 1976. The Act lays down nine grounds viz. adultery, cruelty, desertion, conversion to a religion which is non-Hindu, incurable insanity or mental disorder, virulent and incurable leprosy, venereal disease in communicable form, taking sannyasa (i.e., repudiation of world by entering into a holy order) and presumption or belief of death; and four additional grounds on which wife alone can sue for divorce.

Adultery: Having voluntary sexual intercourse with any person other than his or her spouse during the subsistence of marriage is termed as adultery¯. Adultery is a ground of divorce under the Hindu Marriage Act, 1955, Special Marriage Act, 1954, etc.

Under Section 497 of the Indian Penal Code, adultery was a criminal offence, this section has been struck down by the Supreme Court in Joseph Shine v. Union of India, 2018 SC 4898.

Desertion: Under the Hindu Marriage act, 1955 and Special Marriage Act, 1954, "desertion" means the abandonment of the petitioner by the other spouse without any reasonable cause and without the consent of such party. The Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 contains an identical provision, and desertion is a ground for both desertion of marriage and judicial separation.

According to Section 13(1) (ib) of the Hindu Marriage Act, 1955, the essential conditions of the offence of desertion in order that it may furnish a ground for relief are:
  1. the factum of separation;
  2. the intention to bring cohabitation (living together) permanently to an end.

Cruelty:
Section 13(1) (ia) of the Hindu Marriage Act, 1955 provides cruelty as a ground for a decree of divorce. When there is a reasonable apprehension in petitioner's mind that it would be harmful or injurious for the petitioner to live with the other party, then it is referred to as cruelty¯. It consists of acts which are dangerous to life, limb or health and it may be physical or mental including mental pain, agony, suffering, etc.

The Hon'ble Supreme Court in Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1, it was held that the petitioner must approach the court without any guilt or with clean hands, since the grounds of divorce under Section 13(1) are based on fault theory. Hence, if petitioner himself/herself is guilty or at fault, he/she would not be entitled to seek divorce.

No Fault Theory of Divorce
'No-fault divorce' refers to a form of divorce in which the petitioner does not have to prove any fault on the part of the other spouse. All a petitioner has to do is give any reason that is sufficient in the eyes of law for the divorce. The most frequently given reason is "irreconcilable differences" or an "irretrievable breakdown of the marriage" which basically means that the couple does not get along and that the marital relationship cannot be fixed. A spouse cannot object to another spouse's petition for no fault divorce, as that objection itself is regarded by the court as an irreconcilable difference.

Section 13 (1A) of the Hindu Marriage Act, 1955 contains the provision for irretrievable breakdown of marriage which says that "Either party to a marriage, may present a petition for the dissolution of the marriage by a decree of divorce on the ground:
  1. that there has been no continuation of cohabitation as between the parties to the marriage for a period of not less than one year or upwards after the passing of a decree for judicial separation in a proceeding to which they both were parties; or
  2. that there has been no restitution of conjugal rights as between the parties to the marriage for a period of not less than one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they both were parties¯.

Under this theory, divorce can also be obtained on the basis of no-fault theory which means that divorce can be obtained by the mutual consent of the parties to marriage under the marriage laws (Amendment) Act, 1976.

According to section 13B (1) of the Hindu Marriage Act, 1955, such a petition is required to be moved mutually by both the spouses on the ground that they have been living separately for a period of not less than one year or more and they do not want to live together and also that they have mutually agreed that marriage should be dissolved.

Conclusion
Prior to 1955, the concept of getting a divorce was too deep-seated for the Indian society. The wives were the victims of such a system. But now the law provides with a way out of a cold and hostile marriage by seeking divorce in the court of law. The society has also evolved in this regard that its better to end an unpleasant relationship rather trying numerously to keep it together and happy.

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