In ancient times, marriage and divorce were used to be regarded as private
activities between couples. There was no such thing as a barrier to their
marrying or breaking up. With their approval, everyone was free to do so.
However, with the entrance of Christianity, this paradigm began to shift.
Marriage came to be viewed as sacramental and irreversible. As a result, seeking
a divorce became extremely difficult. Before 1857, only an Act of Parliament
could give divorce in England, but as society progressed, demand mounted, and
the Matrimonial Causes Act of 1857 acknowledged divorce. There was just one
ground for divorce back then, and that was adultery.
Marriage, on the other hand, is seen as a sacred social institution. It's much
more than a simple two-party agreement. As a result, a number of people claimed
that preserving the sacred institution of marriage is in the public interest.
Marriage started to be seen as a special contract. A special contract is one
that cannot be terminated like a regular contract. Many reasons for divorce have
been identified as time and culture have progressed, which have been categorised
into three primary ideas that are discussed here.
Theories of Divorce:
- Fault Theory of Divorce
- Consent Theory of Divorce
- Breakdown Theory of Divorce
Fault Theory of Divorce
One of the most fundamental and oldest theories of divorce is the fault theory.
It was previously known as the "guilt theory of divorce." Adultery was the first
of the marital faults to be identified. Then there were cruelty and desertion.
Adultery, cruelty, and desertion are three marital faults that jeopardise the
basic foundation of a marriage. Adultery shatters the fundamental underpinning
of marriage since it is regarded as an exclusive partnership.
premise of marriage is that the partners would coexist happily and with mutual
trust. As a result, desertion and cruelty are incompatible with the fundamental
underpinning of marriage. When insanity was started to be recognized as a
ground for divorce, the term guilt theory was rechristened as fault theory.
Because insanity can't be considered as a fault, it's a misfortune.
Divorce was once used to punish a spouse who had committed a marital offence and
rendered himself or herself unfit for cohabitation or consortium. As a result,
the spouse's matrimonial offence had to be established. The most significant
need for a fault theory of divorce is that one party must be innocent while the
other must be at fault. If one spouse commits adultery and the other spouse is
shown to be complicit, divorce cannot be granted, at the very least, on the
grounds of adultery. Similarly, if it can be demonstrated that cruelty was
provoked, no divorce will be granted.
Although English law has abandoned the fault theory of divorce, the doctrine has
made its way to Indian law. The Indian Divorce Act of 1869, which exclusively
applies to Christians, was modelled after the Matrimonial Causes Act of 1857.
Adultery is the only ground for divorce in this act. However, simple adultery is
insufficient; it must be something more. Under the above-mentioned
laws, "conversion plus remarriage," "adultery paired with desertion for two
years or more," and "adultery plus cruelty," among other things, might be
grounds for divorce.
The Parsi Marriage and Divorce Acts of 1936-88 acknowledge the fault
theory of divorce. This statute recognises eleven reasons for divorce. Only
the fault theory of divorce was accepted from the start under the Hindu Marriage
Act of 1955. The fault theory of divorce was also acknowledged from the
beginning by the Special Marriage Act of 1954. There are eight fault grounds for
divorce for both parties under the Hindu Marriage Act of 1955, plus four extra
grounds for the woman.
The common fault grounds are: "adultery, cruelty,
desertion of two years, incurable insanity, venereal disease in a communicable
form, conversion, renunciation of the world, seven years of unheard absence".
The additional grounds for the wife are: "pre-Act polygamous marriage of the
husband, repudiation of marriage, rape, sodomy and bestiality of the husband,
non-resumption of cohabitation for one year or more after the passing of an
order of maintenance under Section 18, Hindu Adoptions and Maintenance Act,
1956, or under Section 125, Criminal Procedure Code, 1973". Previously,
leprosy was regarded a ground, but it has recently been removed. The grounds are
nearly identical under the Special Marriage Act of 1954, with the exception
being renunciation of the world and conversion, which are not grounds under the
The Dissolution of Muslim Marriage Act of 1939 recognises nine
reasons for divorce for the wife. These are: "unheard absence of husband for
four years, neglect or failure to provide maintenance by the husband for a
period of two years, seven years' sentence of imprisonment, failure of the
husband to perform matrimonial obligations for three years, impotency of the
husband, two years leprosy or virulent venereal disease, repudiation of marriage
by the wife, cruelty of the husband, not treating her equitably with the other
wife or wives."
Consent Theory of Divorce
Mutual trust, confidence, and faithfulness are the foundations of marriage. If
the parties believe they are unable to preserve mutual faithfulness, the
marriage should be dissolved, as else the issue would spiral out of control. The
proponents of the consent theory of divorce say that the right to divorce is
inextricably linked to the right to marry. If the parties to a marriage have the
right to marry by mutual consent, they should be able to dissolve that marriage
by mutual consent as well. Proponents of this theory also claim that the consent
theory of divorce will lower the number of unhappy marriages and increase the
number of happy marriages. It will enable the couples to depart gently and
increase harmony among themselves and their family.
We often get into an agreement or transaction only to discover later that we
should walk away for the good of ourselves and the transaction. Marriages should
be treated similarly; after all, it is a unique type of contract. If the spouses
believe they made a mistake by marrying, they should be able to dissolve the
marriage with mutual consent. There are other options as well, such as the
spouses believing they are unsuitable to live with each other and thus unable to
live in harmony; in this case, they should be given the choice to end the
relationship. Otherwise, the situation may deteriorate and the couples may
commit matrimonial offences.
In the words of Engels:
"If only marriages that are based on love are moral, then only those are moral
in which love continues...A definite cessation of affection, or its displacement
by a new passionate love, make separation a blessing for both parties as well as
for society. People will only be spared the experience of wading through the
useless mire of divorce proceedings."
The most cogent criticism against this theory has been that it will cause chaos
in the family and lead to a flood of divorce petitions. This issue has only
occurred in a few nations. Following the revolution, the Soviet Union developed
consent theories of divorce; but, what came later was uninvited. Thousands of
divorce petitions were filed around the country. As a result of this, the
government repealed the theory in 1944. As a result, practically every country
today has safeguards in place for the consent theory of divorce. Many nations,
including Sweden, Belgium, Japan, and Portugal, as well as some states in the
United Kingdom and the United States, acknowledge the theory. In India, this
theory is recognized under the Hindu Marriage Act, the Special Marriage Act,
Parsi Marriage and Divorce Act & Muslim law and Divorce Act, 2001.
Divorce by mutual consent is accepted in Muslim law in two
forms: khul and mubbaraat. The term "Khul" literally means "to
postpone." According to Fatwa-i-Alamgiri, if a wife wishes to be free of the
bonds of marriage, she can acquire "khul" from her husband in exchange for some
property. To put it another way, "khul" is a type of divorce when both parties
agree to divorce at the request of the woman in exchange for the wife giving up
some property to the husband. In Mubbaraat, the act represents mutual
liberation of one another. The proposal can come from any of the spouses
unlike "khul" where the wife only has the option of doing so. However, similar
to "khul," the wife must give up her dower or a portion of her dower in order to
The most prevalent objection levelled at the consent theory of divorce is that
it makes divorce extremely simple while also making it extremely difficult. Very
simple because if both parties are willing, it is much easier to obtain a
divorce in this manner, but it is sometimes used as a negotiating tactic by the
spouse. Divorce by mutual consent clearly benefits the husband since he may
compel his wife to give him some property in exchange or give up a portion of
her dower. Otherwise, he has the option of refusing to consent to the divorce.
As a result, the requirement for mutual consent has been made exceedingly
strict, and several protections have been put in place. To seek a divorce by
mutual consent, the spouses must file a petition with the District Court after
living separately for at least one year. They must both agree that they will be
unable to live together and that the marriage should be dissolved as a result.
Another safety is that the parties cannot file a motion with the court until six
months have passed since the petition was filed. The District Court will then
investigate the petition's authenticity and, if satisfied, will issue a decree
terminating the marriage.
Breakdown Theory of Divorce
After a certain point, the preceding two divorce theories failed to achieve
their goals. The search for a better way to solve the problem of deadlocked
wedlocks was unavoidable. As society progressed, divorce policy began to change
from penalising the guilty party to safeguarding the innocent. In the landmark
cases of Gollins v. Gollins
 and William v. William
, this theory was
The breakdown theory of marriage was well described in the case
of Masarati v. Masarati. In this case, both the husband and the wife had
committed adultery. The wife sought divorce but was denied due to the fault
theory, which requires one side to be innocent and the other to be guilty, which
is not the situation here. However, the court approved the divorce on the basis
of breakdown. The court determined that the marriage had broken down, that there
was no chance of their reconnecting, and that keeping them together would serve
no social or public purpose. This case paved the way for the acceptance of the
marriage breakdown theory.
The proponents of this theory claim that once a marriage is irreversibly broken
up, it's needless to determine who is to blame or why it happened. The most
essential goal should be to dissolve the marriage as soon as possible since it
will serve no one's or society's interests. Some scholars have defined breakdown
of marriage as, "such failure in matrimonial relationship or such circumstances
adverse to that relationship that no reasonable probability remains for the
spouses against living together as husband and wife." As a result, the sole need
under this theory is that the marriage has broken down, which will be enough to
dissolve the marriage at the request of either partner.
There are three versions of the divorce breakdown theory. The first version of
the theory assumes that the legislature has not established any divorce
criterion. In these circumstances, the court should make the decision. If the
court is pleased, it will issue a decree dissolving the marriage. This version
was accepted by the Soviet Union family law of 1944 and 1968.
The second version of the idea assumes that the legislature has made sufficient
If the requirement is met, the court is left with no choice except
to dissolve the marriage. For the purposes of assuming that a marriage has
broken down, living apart for a period of five years is considered. The Divorce
Law Reforms Act of 1973 stipulates that if the couples have lived apart for five
years, either side may file for divorce. The divorce petition, on the other
hand, might be challenged on the grounds that the dissolution of marriage will
cause the spouses financial or other types of hardship.
In the third version of the theory, the non-resumption of cohabitation after a
judicial separation decision or non-compliance with an order of restitution of
marital rights is the criterion. Either spouse has the right to file for
divorce. The Hindu Marriage Act of 1955 and the Special Marriage Act of 1954
both have this version. This version of breakdown theory was presented in 1964
by a Private Member's Bill that passed quietly and with little debate.
Hindu Marriage Act, 1955, the fault grounds for divorce are:
- if respondent had not complied with the decree of restitution of conjugal
rights for a period of two years or more, the petitioner could sue for
- if after a decree of judicial separation, the cohabitation had not been
resumed for a period of two years or more, the petitioner could sue for
 In 1964,
the time period was amended to one year. Similar provisions have found a place
in Special Marriage Act, 1954 & the Parsi Marriage and Divorce Act, 1988.
However, the Parliament failed to notice that the Hindu Marriage Act of 1955 was
founded on the fault theory of divorce, which requires one partner to be guilty
and the other to be innocent. As a result, there was a problem with divorce
proceedings based on irretrievable breakdowns.
In the case of Chaman Lal v.
, the woman won an order of restitution of conjugal rights but the
husband made no attempt to comply with it. The court declined to accept the
wife's request, noting the fact that doing so would amount to taking advantage
of his own mistake. However, this stance is rather problematic since, using
this analogy, there will almost certainly be no cases of divorce on this basis.
The Law Commission's 71st Report advocated embracing the breakdown principle as
an additional ground for divorce if the couple has lived apart for three years
or longer. This was introduced in parliament, however owing to concerns from
several women's organisations, the bill was allowed to lapse.
After reading and researching on the three theories of divorce, I've come to the
conclusion that each theory has both positive and negative aspects. In the fault
theory of divorce, it might be the simplest and quickest way to get a divorce in
instances involving the fault grounds listed in the statutes. It can, however,
increase the level of tension between the parties. Because the fault theory of
divorce requires a set duration of separation, the procedure is expected to be
completed faster than the other two grounds.
If both parties agree to give consent, mutual divorces might be the simplest way
to divorce. After then, the sole criterion is living separately for a length of
time. However, things are seldom as straightforward as they appear. Most of the
time, the spouses seek property or money in exchange for their consent. In
Muslim law, giving regard to the husband or leaving a portion of the dower to
achieve divorce is required. Other legislation, on the other hand, has no
specific provision for such transactions; therefore they usually take place
behind closed doors. Another critique of this theory is that it can lead to a
significant increase in the number of divorce applications being filed.
The frequency of unhappy marriages can be minimised when marriages are
irreversibly broken up. Unlike the fault theory, this theory does not place an
emphasis on distinguishing who is guilty and who is not, and it does not need
the cooperation of both parties, as the mutual consent theory requires. Either
partner has the right to file for divorce. This theory, however, has been
criticised for a variety of reasons.
The Marriage Laws (Amendment) Bill, 2010,
stated that the woman can object to a divorce petition submitted by the husband,
but that the husband cannot do so if the wife submits the petition. As a result,
the wife has an unfair edge. Another major critique of the idea is that it makes
divorce relatively simple, which might lead to a rise in divorce rates, eroding
the sacred institution of marriage. According to breakdown theory, the rules are
set up in such a way that the guilty person may profit by dissolving the union
for his own enjoyment. In its 71st report, the Law Commission echoed the same
- Law Commission of India, Irretrievable Breakdown of Marriage –Another
Ground for Divorce, Report No .217, 8 (March 2009).
- (1963) 2 All ER 966
- (1963) 2 All ER 994
- (1969) 1 WR 392
- The Hindu Marriage Act, 1955, Section 13.
- AIR 1968 Punj. 287.
- Law Commission of India, Irretrievable Breakdown of Marriage –Another
Ground for Divorce, Report No .217, 8 (March 2009).
- Friedrich Engels, The Origin of the Family, Private Property and the State
- Buzul-ul-Reheem v. Luteefutomissa, (1861) MLA 379
- The Divorce Act, 1869, Section 10.
- The Parsi Marriage and Divorce Act, 1936, Section 32.
- The Hindu Marriage Act, 1955, Section 13.
- The Special Marriage Act, 1954, Section 27.
- Dissolution of Muslim Marriages Act, 1939, Section 2.
- Savitri Pandey v. Prem Chandra Pandey (2002)