Theories of dissolution of marriage

 Theories of Dissolution of marriage in Hindu Marriage Act, 1955

By Shreya Verma

Over the time, the meaning of Hindu marriage has been changed. What was considered to be an indissoluble union of man and wife has now taken shape of a Civil contract which can very well be repudiated by the parties to the contract. Old Hindu law did not recognize divorce, except when allowed by some customs. Hindu Marriage Act, 1955 (HMA) redefined marriage laws relating to Hindus. And thus, the provisions for divorce too were inserted. HMA recognises three theories of dissolution of marriage: 

1. fault theory: The provisions for dissolution of marriage relating to the fault theory has been imbibed in HMA since inception. As per the theory in case there is a fault on the part of one of the parties to marriage, then the other party e in ask for the dissolution of marriage. This fault can be e because of a conscious act for example adultery a desertion aur can be be a providential act like insanity or venereal disease. Section 13 Lays down 9 such grounds viz. Adultery; Cruelty; Desertion; Conversion; Unsoundness of mind; Virulent and incurable disease; Venereal communicable disease; Renunciation from the world; and Not known to be alive for seven years or more. These grounds of separation are equally available to both the parties. However, section 13(2) lays down special grounds for seeking divorce on the basis of fault of the husband that are available only to the wife. These Grounds are- remarriage by husband; husband guilty for rape, sodomy or bestiality; husband's failed to maintain wife under a decree under section 125 of CrPC or section 18 of Hindu adoption and maintenance Act, 1956; if the marriage was consummated before the wife attained majority.

2. Consent theory: It was added in the act by 1976 amendment which inserted section 13B. Since, marriage is a civil contract the parties to it are are therefore free to dissolve the marriage as the entered this is the basis on which the consent theory of dissolution of marriage is based on. Since it lays a fertile ground for or hasty and ill-considered dissolutions so the provision as provided in section 13b, HMA is loaded with certain safeguards like consent of both the parties is required and the parties are made to think twice before granting them divorce decree as they have to file two motions for divorce after 6-18 months period only then they are separated.

3. Breakdown theory: When the marriage has been broken down irretrievably, it may be on the account of guilt of either of the party or both of them or on an account of the guilt of none whether the situation is a search the cohabitation will only cause pain or agony then it is better to end such union which neither serve any social or individual interest. Kerala High Court noted in Yousuf vs. Sowramma AIR 1971 Ker. 261 that, " while there is no rose which has no thorns, but if what you hold is all thorns and no rose, better you throw it away." the breakdown of marriage is defined as such a failure of matrimonial relationship that there remains no reasonable probability for the spouses to live together. Then, and in such case, it is better to dissolve the marriage as has been rightly noted by the Law Commission’s 71st report which lied down some reforms in the ground for divorce that, "empty shell is to be destroyed with the maximum fairness and minimum bitterness distress and humiliation." The irretrievable breakdown of marriage too was not a ground for marriage from the day the Act came into force but, was added later on in 1964.

These provisions shows that it is possible to seek divorce under HMA now. But the provisions are such that not everyone is entitled to such decree. Certain grounds are there which are to be well scrutinised by the courts thus, making the procedure of dissolution of marriage not that easy and thus the sanctity of the relationship is preserved.