Report No. 71

2.6. Various theories of divorce.-

On a broad conspectus of the grounds of divorce in various countries, if would appear that divorce has been granted on several theories. There is, in the first place, the theory of divorce on the ground of fault, which is one of the principal theories adopted in the Hindu Marriage Act, 1955. Illustrations of this theory in that Act are the legally recognised grounds of adultery, cruelty, and desertion1 and (on a wife's petition) bigamy, certain sexual offences and failure to pay maintenance.2

Next, there is the theory of divorce on the basis of what may be broadly described as frustration of the marital relationship by supervening circumstances of a specific nature. They may arise circumstances which, though not constituting fault on the part of any party, render dissolution of the marriage necessary since, by reason of these supervening circumstances which do not amount to matrimonial fault, a material change is introduced. Examples of this theory are furnished by the grant of divorce in the Hindu Marriage Act on the ground of-

(a) conversion of the other spouse,3

(b) insanity,4

(c) disease,5

(d) renunciation of the world by the other spouse,6

(e) absence of the other spouse for a long period.7

It may be added that divorce is also granted on the basis of what may be called "securing conformity with the legal system". Where a marriage does not, in certain respects, comply with the requirements laid down by the law, the legislature, in its wisdom may allow the grant of divorce, instead of a provision for nullifying the marriage.

An example of it is furnished by the grant of divorce (at the instance of the wife) on the ground that the age of the wife was below the statutory minimum at the time of the marriage8 a ground introduced in the Hindu Marriage Act by a recent amendment. Next, in some legal systems divorce is granted on demand, the theoretical assumption being that consent given to the marital relationship is revocable and can be revoked without the necessity of showing fault or other supervening circumstances.

Marriage is viewed in a number of countries as a contractual relationship between freely consenting individuals.9-10

A modified version of the basis of consent is to be found in the theory of divorce by mutual consent.11

The basis in this case is also consent, but the revocation of the relationship itself must be consensual, as was the original formation of the relationship. The Hindu Marriage Act, as amended in 1976, recognises this theory in section 13B. None of these theories is based on the breakdown of the relationship, in the sense in which it is understood in modern times, even where it can be said that these theories and the breakdown theory have certain common elements.

1. Section 13(1)(i), (ia) and (ib), Hindu Marriage Act, 1955.

2. Section 13(2)(i), (ii) and (iii), Hindu Marriage Act, 1955.

3. Section 13(1)(ii), Hindu Marriage Act, 1955.

4. Section 13(1)(iii), Hindu Marriage Act, 1955.

5. Section 13(1)(iv) and (v), Hindu Marriage Act, 1955.

6. Section 13(1)(vi), Hindu Marriage Act, 1955.

7. Section 13(1)(vii), Hindu Marriage Act, 1955.

8. Section 13(2)(iv), Hindu Marriage Act, 1955.

9. See e.g., New York Domestic Relations Law (McKinney, 1964), section 10, which provides that marriage "so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable of making a contract is essential." See note, Patterns of Divorce Reform, (1971-72) 57 Cornell Law Review 649, f.n. 1.

10. Note Patterns of Divorce Reform, (1971-72) 57 Cornell Law Review 649.

11. Section 13B, Hindu Marriage Act, 1955.