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Comparative Analysis of the 3 Theories of Divorce

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:

  1. Fault Theory of Divorce
  2. Consent Theory of Divorce
  3. 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.

The primary 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.[1] 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.[1]

The Parsi Marriage and Divorce Acts of 1936-88 acknowledge the fault theory of divorce. This statute recognises eleven reasons for divorce.[2] 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".[3] 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 act.[4]

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."[5]

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."[1]

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.[2] 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 get "Mubbaraat."

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[1] and William v. William[2], this theory was established.

The breakdown theory of marriage was well described in the case of Masarati v. Masarati[3]. 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 provisions.

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.

Under the Hindu Marriage Act, 1955, the fault grounds for divorce are:
  1. 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 divorce, or
  2. 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 divorce.
[4] 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. Mohinder Devi, 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.[5] 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.[6] 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 views.[1]

  1. Law Commission of India, Irretrievable Breakdown of Marriage ´┐ŻAnother Ground for Divorce, Report No .217, 8 (March 2009).
  2. (1963) 2 All ER 966
  3. (1963) 2 All ER 994
  4. (1969) 1 WR 392
  5. The Hindu Marriage Act, 1955, Section 13.
  6. AIR 1968 Punj. 287.
  7. Law Commission of India, Irretrievable Breakdown of Marriage ´┐ŻAnother Ground for Divorce, Report No .217, 8 (March 2009).
  8. Friedrich Engels, The Origin of the Family, Private Property and the State (1884).
  9. Buzul-ul-Reheem v. Luteefutomissa, (1861) MLA 379
  10. The Divorce Act, 1869, Section 10.
  11. The Parsi Marriage and Divorce Act, 1936, Section 32.
  12. The Hindu Marriage Act, 1955, Section 13.
  13. The Special Marriage Act, 1954, Section 27.
  14. Dissolution of Muslim Marriages Act, 1939, Section 2.
  15. Savitri Pandey v. Prem Chandra Pandey (2002)

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