Theories of Divorce under Hindu Law

From ancient times, Hindu Marriage was considered as a sacramental union between the husband and wife that lasts till death, and as a sacred tie which
From ancient times, Hindu Marriage was considered as a sacramental union between the husband and wife that lasts till death, and as a sacred tie which
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From ancient times, Hindu Marriage was considered as a sacramental union between the husband and wife that lasts till death, and as a sacred tie which can never be broken. According to traditional belief, a marriage is considered not only as a relationship or a bond that exists for the existing world but it is a bond which also continues beyond. Thus the essence of staying together was so imbibed in the Hindu society that a divorced person was stigmatised and prejudiced in the existing world. In Hindu communities particularly in the so-called lower social strata, the practice of divorce prevailed as a custom. However, with the changing needs of society, the Hindu Marriage Act was considered and ultimately the divorce aspect also found a place in the Hindu Marriage Act.

Marriage is an institution through which two people commit to each other and work for the well-being of the same, thus families are raised through it and an inseparable attachment is also formed as a result. Human beings are unpredictable, thus when the concept of marriage is there, at the same time the concept of divorce also exists.

Concept of Divorce

The word ‘divorce’ had not been defined under any statutory provisions but it could be defined as a legal dissolution of judicial ties established at marriages. Divorce means putting an end to the marriage by dissolution of marital relations. It is the legal dissolution of a marriage by a court or any competent court. After divorce parties can no longer be husband and wife. The decree of divorce allows each of the parties to have fresh marriages as they like. In the modern days divorce is allowed for the spouses if they cannot live in compromise to each other. Thus divorce can be considered a means to break marriage that happens not just between two individuals but also between two families.

In Hindu law, divorce is governed by Hindu Marriage Act, 1955. The following sections of the act deals with divorce:

Divorce & Theories of Divorce

There are three theories by which a couple can give divorce. These are the theories through which couples can separate and end their marriage. There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable breakdown of marriage theory but there are some areas where customs are prevalent over law, hence we can say that there are four theories of divorce. These can be categorised under the following points.

Divorce Categories

Theories Of Divorce : An Overview

Theories / Grounds for divorce

1. Fault Theory:

Fault means when either of the party to the marriage is at wrong side. If either husband of wife is guilty of coming any of the following faults mentioned in section 13 (1),the other party can take the right to file petition for dissolving their marriage.These grounds of sub section (1) are available to both the parties. The grounds under sub section (2) are special ground of divorce provided to the wife against the fault committed by husband. All these grounds are base of the breakdown theory of marriage as well under section-13 (1A).

Fault Theory

Section 13(1) talks about 9 grounds relating to fault theory. Which are

a) Adultery – When a married man or a woman has sexual intercourse with another person of opposite sex other than the spouse during the course of marriage .

Earlier single act of adultery was valid ground for judicial separation but not for decree of divorce but after Marriage Law Amendment Act 1976, single act of adultery is a valid cause for divorce.

  • Main ingredients of adultery are
    • There must be sexual intercourse
    • Such sexual intercourse should be consensual and voluntarily

As direct evidence of adultery is very difficult to adduce in case of adultery so in order to prove the same two elements must be present that is intention to be adulterous and the opportunity to gratify such an intention.

Earlier, adultery was a crime in India and also had its penal provision under section 497 of Indian Penal Code but in the case of Joseph Shine v. Union of India Supreme court had held the offence unconditional. This might be because of inter-contradictory nature of section 497 and 198{2} of the Indian Penal Code as in the section 497 wife will not be culpable as an abettor but as per the section 198(2) of the same act deals with the prosecution for offences against marriages.

Case Laws

Subbramma vs. Saraswati – Madras High Court held the if an unrelated person is
found along with a young wife , after Midnight in her bedroom in actual physical
juxtaposition ,unless there is some explanation forthcoming for that, which is
compatible with an innocent interpretation , the inference that a court of law can
draw is that the two must be committing an act of adultery.

A.Jayachandra vs. Annel Kaur – In its earlier judgement in the case of Bipin Chander vs. Prabhawati Supreme court held that adultery has to be proven beyond reasonable doubt. But later in the case of A. Jaychandra vs. Aneel Kaur Supreme court reiterated that concept of proof of beyond reasonable doubt is only to be applied to criminal cases and not in civil cases.
Same point was ascertained by the leading case of Dastane vs.Dastane , in which court held that there is no necessity of the presence of proof beyond reasonable doubt where personal relationships are involved especially those between a husband and wife .

Sanjukta Pradhan v/s Laxmi Narayan Pradhan held that – it is not the requirement that there must be direct proof of adultery.

b) Cruelty– Cruelty in simple terms means wilful torturing or unreasonable brutal
behaviour against one which gives reasonable apprehension of such a danger or causes danger to life , limb or health bodily or mental.
Section 13(1)(ii) of Hindu Marriage Act states that even after solemnization of
marriage, treating the petitioner with cruelty can also be considered as a ground for divorce.

Definition of Cruelty
Cruelty has been defined in many English cases as thus:

In the case of Russel vs. Russel, it has been defined as “causing danger to life, limb and physical or mental health of another spouse.”

Cruelty has also been defined in IPC under section 498 A as ” willful conduct which is of such nature that causes danger to life, limb or health (whether mental or physical) of the woman or harassment of the woman where such harassment is with the end goal of pressuring her or any individual identified with her to fulfil any unlawful need for any property or important security or is because of disappointment by her or any individual identified with her to satisfy such need. “

Thus when two such constituents of cruelty are being meted out, the person committing the same shall be punished with imprisonment for a term which shall extend for 3 years or with fine or both. Its link can also be drawn with Section 113(A) of the Evidence Act. Thus when such brutal acts are committed where an individual wants to end his or her life is bound to be considered as a basic ground of divorce. Usually such acts of cruelty only happen on women, but society being dynamic such cases of cruelty also happens on men but there is still no penal provision to protect their rights and dignity. Though such cases of torture on men are rare, it is existing in the Indian society.

In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the state of mind.’

Some Instances of Cruelty are as follows:

Cruelty definitions

Cases :

Jayachandra v/s Anil Kaur : it was held that the expression of cruelty used in relation to human conduct or human behaviour in relation to or in respect of matrimonial duties and obligations. Cruelty is the course of conduct of one which adversely affecting the other. It may be physical or mental, intentional or unintentional.

Krishna Sarvadhikary v. Alok Ranjan Sarvadhikary : it was held that the actual
intention on the part of one of the spouse is to injure the other is an important factor though in doubtful cases the state of mind of the offending spouse would also be crucial.

Rangarao v. Vijaya Laxmi : it was held that the wife threatening to commit suicide amounts to cruelty.

Radhay Shayam v/s Kusum : it was held that when wife refused sexual intercourse without any reasonable cause it amounted to cruelty at husband.

c) Desertion -The word desert literally means to abandon or give up or forsake without any sufficient reason or intention to return. In a marriage, if one spouse leaves the matrimonial alliance without any sufficient cause he is said to be at ‘fault ‘.

Halsbury’s Laws of India defines desertion as a “total repudiation of the obligation of marriage”. Section 13 (1) (ib) of the Hindu Marriage Act,1955 deals with desertion as a ground for divorce.

Simply when one party desert the other party without any reasonable cause without the consent or against the will of other party for a period which not less than 2 years amount to desertion. It is not merely an act but also conduct, which includes willful neglect.

There are four elements of desertion:-

  • The fact of separation (factum deserdendi )
  • The intention to desert (animus deserdendi)
    (Both the above elements must be present, if either of these two ingredients is absent, the petition for divorce on the desertion fails. However the petition for divorce on the grounds of desertion can be filed only after a period of two years from the commencement of the co existence of the animus and the factum)
  • Absence of consent
  • The absence of conduct which led to the other spouse leaving the matrimony.

Case Laws :

Gur Bachan Kaur vs. Preetam Singh – the court held that the desertion shall not be done by the consent as desertion requires the guilt by one of the parties and desertion by the consent is not considered as desertion.

Jyotish Chandra Guha vs. Meera Guha – it was held that when one partner behaves in such a manner that it becomes difficult for another the other partner to live under the same roof or is compelled to leave the matrimonial home. Then it will be considered as desertion by the first party.

Savitri Pandey Vs. Prem Chand Pandey – The Supreme Court held that “ the desertion actually means the ignorance from matrimonial duties, by either party instead of leaving any place . It also requires the existence of cohabitation between the parties earlier”

Bipinchandra vs. Prabhavati / Lachman Utamchand Kriplani vs. Meena
In both the cases court reiterated that Desertion must have essence of permanent forsaking and abandonment of one spouse by other without others consent and without reasonable cause.

Nisha Rani vs. Sohan Singh Nehra – The court held in the case that the desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct if the other spouse and compelled to live separately.

Burden of Proof :

The onus of proving desertion rests on the petitioner as, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it.

d) Conversion:

Conversion of one of the spouses to any other religion affords a ground of certain
matrimonial reliefs to the other spouse. In this context conversion means that the
person has voluntarily relinquished his or her own religion and adopted another
religion after going through some formal ceremony.

There are two conditions when conversion as a ground for divorce can be invoked:

  1. That the respondent has ceased to follow the faith of Hinduism that he is no longer a Hindu,
  2. That the respondent has converted to another religion that is a non Hindu faith.

This ground of divorce has been included in the Hindu Marriage Act only for the outdoors of circumventing the provision of Section 494 of IPC,1860.

When conversion is not ground of divorce:

When the conversion to another faith is genuine and not due to any ulterior or unlawful motives, conversion need not be a ground for divorce because change in religion does not affect the conjugal love and therefore it should not be permissible for party to the marriage to get a divorce by changing his or her religion.

It is to be noted here that when conversion was made only for the purpose of
marrying and then again reconverting to prior faith, it becomes a necessary ground for divorce. This conversion makes a marriage void and punishable as well.

e) Unsoundness of mind

This is the ground for divorce under section 13 of Hindu Marriage Act. According
to the section divorce or judicial separation can be obtained if the person has been “incurably of unsoundness of mind,” or has been suffering continuously or
intermittently from “mental disorder of such a kind or such an extent that the petitioner cannot reasonably be expected to live with the respondent.”

Expression of “mental disorder “means mental illness or incomplete development of mind, psychotropic disorder or any other disorder or disability of mind and includes schizophrenia.

Case : Sharda vs. Dharampaul – Supreme Court held that each case of schizophrenia has to be considered on its own merits. The medical evidence regarding the requisite degree of mental disorder is relevant though not conclusive. The Supreme Court also observed that when there was sufficient evidence for the court to conclude that the slight mental disorder of the wife was not such a kind and to such an extent that the husband shouldn’t have any reasonable cause to live with her, divorce could not be granted. This judgement is significant because one should not take the ground on the basis of mere labelling of mental illness.

f) Leprosy :

A petition for divorce may be presented by either party to the marriage on the ground that the respondent has been suffering from a virulent and incurable leprosy.

Leprosy to be ground for divorce or judicial separation must be :-
a) Incurable
b) Virulent

Prior to the amendment done in 1976, Leprosy in virulent and in curable form was
ground for judicial separation and divorce if hadn’t been persisting for at least three years prior to the petition. But after amendment, the time limit has been omitted.

g) Venereal Disease:

In this reference, the case of Mr.X vs. Hospital Z, is of much importance.
In this case, the marriage of petitioner was settled to one Mrs Y but it was called off on the ground of blood test conducted by the respondent hospital in which he was found to be HIV positive. The petitioner filed case for damages against the hospital, it was held that as long as a person is not cured of the venereal disease, his right to marry is not absolute and the hospital has not violated any oath in disclosing the disease of the petitioner.

Venereal disease in a communicable form is a ground of divorce. This is a sexual
disease which is caused due to sexual relation the duration of 3 years prior to the
amendment of 1976 has been removed. The only condition remain is it should be
incurable and communicable form. It is a ground for both judicial separation and

But if petitioner refuses for medical examination such refusal may be taken as bar under section 23 and the court may refuse the relief.

In the case of Madhusudan vs. Chandrika , it was held that the medical
examination is an essential proof . The petitioner himself cannot take advantage of his own wrong.

h) Renunciation of the world :

If a person becomes a Sanyasi then he is tantamount to Civil death and gives an
opportunity to the other party to file for divorce.

There are two essential, co-existing conditions :

  1. The party must have renounce the world
  2. He or she must have entered into any religious order.

It means one when who announced must fulfil the religious rites and ceremonies.

Merely wearing a Sanyasi dress is not renouncing the world. It is actually ascetic retirement by relinquishing all worldly ties and attachments as held in the case of Baldeo Prashad vs. Arya Pratinidhi Sabha.

i) Presumed Death :

A divorce may be granted on the ground that ye respondent has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it , had that party been alive.

The onus of proving the absence of the respondent for the statutory period without being heated of as alive lies on the petitioner .The standard of proof for this purpose is laid down in section 23 of the Act.

Particulars required by the petitioner :

  1. Last date of cohabitation
  2. Date and place last seen the respondent
  3. Steps taken to trace the respondent

But the onus of proving that the respondent is alive lies on the person who pleads so.

Case : Bulak vs. Bulak – It was held that before marrying the other person it is the duty of the petitioner to get the decree of divorce.

2. Conditions when only wife may obtain divorce per Section 13(2) :

a) Pre Act Bigamy or Polygamy: If the husband has performed a bigamy or polygamy before the commencement of Hindu Marriage Act 1956. This marriage cannot be challenged as void as section 11 states that only post act bigamy as void meaning thereby the act does not have retrospective effect on pre act bigamy.

But the right has been given to only wife under the clause — 13 (2) to seek divorce.
It is pertinent to mention here that this remedy is given to the wife irrespective of the fact whether she is the first wife or second one or the subsequent wives.

Case: Vimla vs. Viraswamy(1991) – It was held that a clear proof of marriage is required not merely living together.

b) Rape, Sodomy and Bestiality : if the husband is guilty of rape , sodomy and
bestiality, the wife is entitled to get the decree of divorce. For the illustration of this section:-

  • Rape – Rape is as defined in section 375 IPC and forced cohabitation with a wife under 16 years of age or with wife during judicial separation.
  • Sodomy -Same sex relation, this is unnatural offence
  • Bestiality – Sex with an animal.

Further two things must be kept in mind:-

  1. It is not necessary that the proper trial is conducted and the punishment is given
  2. Conviction done or not, does not matter.

c) Separation and Maintenance: This clause lays down a ground with special reference to the cases where the parties to marriage are living separately without divorce and the wife is taking maintenance from the husband either under section 125 of the code of Criminal Procedure, 1973 or under section 18 of HAMA (Hindu Adoptions and Maintenance Act),1956.

Separation can be of any form e.g. mutual separation, Judicial separation or
separation under restitution of conjugal rights. The separation must have been for one year or more and no cohabitation between parties during this separation. This would lead to divorce but can only be availed by the wife. (Period of one year starts from the date when the interim order of maintenance was ordered.)

d) Option for Puberty: This ground of divorce has been introduced in 1976 amendment. This permits the wife to repudiate her marriage if the marriage was solemnized when she was below the age of 15 years. This petition can be filed in the court before attaining the age of 18.

As per section 3 of PCMA , 2006 – wife misses to repudiate the marriage before
eighteen then she can dissolve this marriage after eighteen within 3 years from the date of attaining the age of majority.

Points to be noted here is that this remedy is available to wife only under Hindu
Law but in Muslim law it is given to both the parties. But there is a difference under Hindu and Muslim law is that under Hindu Law, marriage can be dissolved irrespective of the fact the marriage was consummated or not. But in Muslim law if the marriage is consummated then the marriage cannot be repudiated by availing the remedy.

Merits of Fault Based Theory:

It is stated that the very basis of marriage is mutual fidelity, and if for any reason the parties feel that mutual fidelity cannot continue, they should have freedom to dissolve the marriage, as only by dissolution, fidelity can be preserved.

Demerits of Fault Based Theory:

  • Fault divorce is usually more expensive, because it may necessitate a trial. This means hiring the services of an attorney and correspondingly paying for investigations, interrogatories and requests for evidence.
  • Insanity did not fit in within the framework of guilt or matrimonial offence theory, as the party suffering from insanity could hardly be called a guilty party.
  • It is a misfortune rather than misconduct.
  • The fault theory requires that one of them (and only one of them) should be guilty of some matrimonial offence, then and then only the marriage can be dissolved.
  • The second course adopted was to give a very wide interpretation to some fault grounds. Cruelty was found to be the most handy ground which could be moulded into any shape. Some States in the United States of America went to the extent of saying that if the husband snored during the night thus disturbing the sleep of the wife, it amounted to cruelty. Gradually, cruelty was given such a wide interpretation that it virtually amounted to recognition of the breakdown of the theory of divorce.

Irretrievable Breakdown Theory of Divorce

The basic human and social problem is of the maladjusted couples. Many marriages fail not because of the wickedness of one party or the other, but they just fail. Many couples try, and try their best to make their marriage a success but they fail.58 Sometimes marriages fail because of selfishness, boorishness, callousness, indifference and thinks like these on the part of one of the parties to the marriage. All this does not amount to any matrimonial offence. Yet, the marriage is not get-going.

Although this theory was not a part of the Hindu Marriage Act 1955 but a Section 13 (1A) was inserted in 1964 by the marriage laws Amendment with two clauses which was amended again in 1976 and time period of two years reduced to one year.

Irretrievable Breakdown Theory of Divorce

The breakdown theory of divorce says that if a marriage had broken down without any possibility of restoration then it should be dissolved. The theory believes that if a marriage has broken down irretrievably, therefore divorce should be granted.Where neither of the spouses can live peacefully together and acquire the benefits of a married relationship, then it is better to dissolve the marriage through mutual consent as there is no use in keeping and retaining the empty
shell. The theory presumed the breakdown of relationship de facto. If the parties to marriage are living separately for longer period of time (‘two or three years or more) with or without any reasonable cause, and all their attempts to restore the foundation of marriage failed, it will be presumed by laws that relationship is totally unworkable, both emotionally and physically dead with no hope of resumption of spousal duties.

In Hindu law the breakdown principle in the third form of divorce was introduced in 1964, and in 1970 in the Special Marriage Act. This was done by amending the last two clauses of divorce of the two statutes. The new Section 13(IA) of the Hindu Marriage Act laid down that if parties have not resumed cohabitation for a period of two years or more after a decree of judicial separation, or if a decree of restitution of conjugal rights has not been complied with fora period of two years or more, then either party may sue for divorce. The provision in Section 27(2) of the Special Marriage Act is identical except that the period therein is only one year.

In a landmark judgement, Naveen Kohli v. Neelu Kohli, the parties were married in 1975 and after few years of their marriage, their relationship turned sour. There were allegations of adultery, cruelty, and other types of misconduct from both the parties against each other, and they were living separately for more than ten years. According to the court, the allegations were of such serious nature that there was no possibility to restore the foundation of marital life between them.
The Supreme Court held that there has been a long period of separation, it may fairly be concluded that the bond is beyond repair, therefore the legal ties has to be severed.

The Supreme Court made a strong plea to the Union of India for including ‘Irretrievable Breakdown of the Marriage’ as a separate ground for divorce under Section 13 of the Hindu Marriage Act, 1955, and amending the Act. The 71st Report submitted by the Law Commission of India in 1978 has recommended amendments to Hindu Marriage Act 1955 to make of irretrievable breakdown of marriage as new ground of divorce. A report of Law Commission in 2009 has also made similar recommendation.

Except Supreme Court, no court in the country can grant divorce on the ground of the theory of irretrievable breakdown of matrimonial relationship.

Merits of Irretrievable Breakdown Theory of Divorce

  • If the individuals, tied within the matrimonial bond feels that the marriage is not working out, then mutually it may give the right to both of them to stay and live life separately and happily without any botheration on either part. As there is no reasonable probability of staying together thus it gives both of them the opportunity to start their life as per their own wishes independently and separately.
  • Second point is that if either of the spouse is desperately anxious to regularise their position in the community and they are unable to do so. People should be able to marry again where they can obtain a death certificate in respect of a marriage already long since dead.
  • A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the faulty theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute. Because of the divorce of matrimonial offence, judges, and lawyers are sometimes reduced to the role of scavengers. The lawyers have to look for and expose and the judges are confronted with, the worst obscenities within a married life.
  • It is true that married status should as far as possible, as long as possible, and whenever possible be maintained, but where a marriage has been wrecked beyond the hope of salvage and there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to parties tied for ever to a marriage that in fact has ceased to exist.

Demerits of Irretrievable Breakdown Theory of Divorce

  • Irretrievable breakdown of the marriage may become an excuse where the married couples may always feel that little arguments are unreasonable as a result of which there is no probability of them staying together. Therefore, in my opinion, the process of divorce following the irretrievable breakdown of marriage theory is not justified.
  • It may also result from sudden arbitrary unreasonable decisions.
  • It sometimes happens based on temporary emotions such as anger, humiliation, etc. which a couple may go through during the heat of the argument.
  • It fosters no communication procedure between the partners.
  • It is not just the breakdown of marriage but it is also the wreckage of two united families at the time of marriage.
  • If children are born out of that marriage when the parents ‘now’ think that there is no reasonable .probability of staying together, such broken families could be a matter of stress for the child born out of the marriage as well.

3. Mutual Consent Theory

In this theory, both husband & wife want to get separated by mutual consent as they believe that both husband and wife don’t want to continue their marriage or they can’t handle their marriage.
This concept is covered under section 13(b) of the Hindu Marriage Act. Following are provision which allow parties to take divorce by Mutual consent:

Mutual Consent Theory

The theory has been defined in the section 13B of the Hindu Marriage Act 1956, which requires following conditions or ingredients for mutual divorce :

  • They have been living separately for a period of one year or more.
  • They have not been able to live together.
  • They have mutually agreed that the marriage should be dissolved.
  • The parties cannot come for a decree of divorce before earlier 6 months and after later 12 months.
  • After 6 months from filing the petition the parties had to come to the court to file a motion for continuing the petition. If no one comes the petition can be dismissed.
  • After that 12 months, 12 months are stated as a waiting to held the decree
  • of divorce.
  • The petition can be withdrawal in the early 6 months or in the later 12 months. In total 18 months it can be withdrawn by either party with reason or without reason.

Case: Harcharan Kaur vs. Nachhatar Singh– Punjab and Haryana High Court has observed that unless the parties to the petition under section 13B of the act who have mutually consented to have marriage dissolved ,continue to signify their mutual consent for dissolution of marriage right up to the date of decree, the marriage cannot be dissolved under Sub-section (2) of Section 13B of the Act merely on the basis that six months earlier parties had together presented the
petition for dissolution of marriage by mutual consent. If one of them fails to agree and does not want to oblige the other party by extending the requisite consent to the divorce, decree of divorce cannot be passed under Section 13B of Act.

Amardeep Singh v. Harveen Kaur – the Supreme Court had held that a 6 Months Waiting Period for Divorce by Mutual Consent is not mandatory.

Merits of Mutual Divorce

  • Divorce By Mutual consent saves time, money and energy for both, Leaves no room for unnecessary quarrel and most importantly avoid washing your dirty linen in public.
  • With the increasing no of Divorce application being filed and the demand for quick divorce has become growing demand, Mutual consent divorce is the best option.
  • If, two parties who have entered into a marriage with free consent, later on, realise that they made a mistake, and for one reason or another, are finding it difficult to pull on together smoothly and to live together harmoniously. It is not because they are wicked, bad or malicious people. They are just ordinary average human beings, but it has just happened that their marriage has turned out to be a bad bargain, and they find it impossible to continue to live together. Although they have tried hard to make the marriage a success, but all their efforts have failed. It is not that they are wicked people or bad persons. They are average human beings who have, somehow or the other, not been able to pull on together. In such a case, only alternative for them is to get out of the matrimony is mutual consent.

Demerits of Mutual Divorce

  • It is feared that the grant of divorce by mutual consent will enable a party to obtain divorce by wresting the consent of the other unwilling party by a malpractice, say; coercion or fraud etc. there is no valid reason for this fear. Consent essentially means free consent. Where the consent of a party is obtained by a malpractice, the affected party can ever refuse so in the court and the ground for divorce will automatically vanish.
  • It is also argued against this theory that this is in a way divorce by collusion. This objection is based on a misunderstanding of the difference between consent and collusion. Every collusion is, no doubt, by consent between the parties but every consent between them does not mean collusion.
  1. Customary Theory of Divorce :

    Section -29 (2) Nothing contained in this act deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage,whether solemnised before or after the commencement of this act.This provision permits the applicability of custom on the dissolution of marriage if the custom of the parties permit.
    There are some geographical areas or tribal areas where such customs are prevalent. Lahaul Spiti and Kinnaur district of Himachal Pradesh is best example for this.


The Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there was no provision for divorce. The concept of getting divorced was too radical for the Indian society then. The wives were the silent victims of such a rigid system. Now the law provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of such a provision are women who no longer have to silently endure the harassment or injustice caused to them by their husbands. However, to prevent hasty divorces, the law lays down certain restrictions and grounds for obtaining a divorce.
I further recollect ancient quote: Manu, founder of Hindu Law, said “Yathra Naryanthu Pujyanthe, ramanthe ththra devathah” i.e., where women are worshipped and respected, there, the Gods will be happy.


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