What is hindu marriage act 1955?
The Hindu Marriage Act 1955 is Act no. 25 of 1955. The act was passed to amend and codify the laws relating to marriage among Hindus.
What is divorce?
Divorce means legal dissolution of marriage by a court or the other competent authority. It is not defined under any statutory provision.
What is divorce under hindu law?
In chapter IV of the Hindu Marriage Act 1955 Section 13 the provision of divorce is being made available. It may be initiated after 1 year of marriage.
Theories Of Divorce Under Hindu Marriage Act 1955:
1. Fault / Guilt Theory :
As per the fault theory if any party to marriage has found to be guilty of any matrimonial offence, namely adultery, desertion, cruelty, rape, bestiality or maintenance to wife, except matrimonial offences any other offence can not be taken as a ground of divorce under this theory. This theory says that only when the party filing petition for divorce is nor at fault and neither forgiven the act of the person at fault, the petition for divorce can be filled.
The possible grounds for divorce under this theory are as follows-
Cruelty, adultery, desertion, confinement, alcohol / drug abuse, insanity, physical inability to engage in sexual intercourse, if it was not known at the time of marriage and infecting the other spouse with a sexually transmitted disease.
2. Mutual Consent Theory:
The provisions of divorce with mutual consent is given in Section 13(B) if the Hindu Marriage Act 1955 by Marriage Law Amendment Act 1976. This theory affirms that the freedom of marriage implies freedom of divorce.. This means that both agree to part for good and filed a joint petition for the same they should be allowed to dissolve their marriage. Here consent means mutual consent. The court shall be satisfied with the fact that there is something in the marital relationship which is making the relation unhappy and that can lead to moral degradation of the parties and for the better life of both separation is necessary.
The Supreme Court observed that the mutual consent should be continued till the decree of divorce is being passed and the court should be satisfied with the bonafied consent.
3. Irretrievable Breakdown Theory:
As per this theory when there are such circumstances between the partied of marriage that there in no reasonable circumstances between the parties that it is impossible for the parties to stay together. This theory believes that when there is no possibility of restoration of marital life between them then the legal ties between the parties should be severed. The supreme Court only has the right to grant divorce on the ground of theory of irretrievable breakdown of marriage. A landmark judgement on this ground is Naveen Kohli v. Neelu Kohli.
4. Frustration Theory:
The Hindu Marriage Act 1955 allows divorce in circumstances other than a spouse found guilty of any marital offence under frustration theory of divorce. The grounds of granting divorce as per this theory are physical ailment, mental unsoundness, changed his religion, renounced the world, disappeared for a very long period, feeling of deep anguish, disappointment and frustration in one spouse caused by conduct of other resulting to mental cruelty.
Refrences:
- https://www.legalbites.in/law-notes-hindu-law-divorce
- https://www.lawctopus.com/academike/divorce-under-hindu-law/
- https://indianlawportal.co.in/theories-of-divorce-under-hindu-law/
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