What are the theories of Divorce under the Hindu Law ?
Under Hindu law, there are mainly three theories of divorce, each rooted in different texts and legal principles:
Fault Theory (Guilt Theory):
- According to this theory, divorce is permissible if one spouse is at fault or guilty of misconduct that makes the continuation of the marriage intolerable.
- Grounds for divorce under this theory include adultery, cruelty, desertion, mental disorder, conversion to another religion, or incurable diseases.
- The fault theory was prevalent historically and is reflected in ancient texts like Manusmriti and other Dharmashastras.
Breakdown Theory:
- The breakdown theory of divorce emphasizes the irretrievable breakdown of the marriage as the basis for dissolution.
- Under this theory, divorce is granted if the marriage has irretrievably broken down and there is no reasonable possibility of reconciliation between the spouses.
- The breakdown theory is not explicitly recognized in traditional Hindu law texts but has been introduced through legislative reforms and judicial interpretations to address contemporary social realities.
Mutual Consent Theory:
- The mutual consent theory of divorce allows for dissolution of marriage by mutual agreement between the spouses.
- Both spouses must voluntarily and mutually agree to end the marriage, and they may approach the court jointly seeking divorce by mutual consent.
- This theory is based on the principle that marriage is a partnership, and if both parties agree that the partnership cannot continue, they should have the freedom to dissolve it amicably.
- Mutual consent divorce is recognized under modern Hindu law, as provided for in the Hindu Marriage Act, 1955, and subsequent amendments.
While the fault theory has historically been more prevalent, there has been a shift towards recognizing the breakdown theory and mutual consent theory in modern Hindu law to align with changing societal norms and values.