FAULT THEORY OF DIVORCE
In the early law of England and in most of the countries of the world the most appropriate measures of divorce were the fault theory or the offence theory. According to this theory a marriage can be dissolved only if one of the parties to the marriage has, after the solemnization of the marriage, committed some matrimonial offences. The matrimonial offence must be an offence considered as one of the grounds for granting the divorce. In this theory it is considered that any one of the parties to the marriage is guilty of the matrimonial offence and the other party is innocent which means in no way a party to, or responsible for, the offence of the guilty party. This principle was taken very far in the English law; so much so that even if both the parties jointly want to get their marriage dissolved, they were not allowed. So, it is necessary that one party should have brought the petition for divorce on the basis of conduct of the other person. The petitioner who files a petition for seeking divorce should not himself or herself guilty of the matrimonial offence. For example, if the petition is presented on the grounds of the adultery of the respondent and it is found that the petitioner is also guilty of adultery, then the petition for divorce is not maintainable. It is one of the important requirements that the petitioner should be innocent.
Its has been seen that in the early law only adultery, cruelty and desertion were the grounds of divorce. Later on, insanity was added as a ground of divorce but soon it was realized that insanity cannot be a ground of divorce as being an insane is not a misconduct but a misfortune. So, this ground of divorce was removed. In some systems of law, there exist several grounds of divorce. Sentence of imprisonment for a specified period, leprosy, willful neglect, willful refusal to consummate the marriage, venerable diseases, rape, sodomy, bestiality etc. are some of the recognized grounds of divorce. The Hindu marriage act also incorporate the fault theory of divorce, and laid down that their must be a guilty party and an innocent party. The adultery, cruelty and desertion were some of the grounds of judicial separation and not of divorce. This was a very conservative view. Under section-13 of the Hindu marriage act, nine fault grounds were provided both for husband and wife and two additional grounds were provided on the basis of which only the wife can take divorce. Barring aside insanity and leprosy, rest of the grounds arouse out of the same offence or wrong of the respondent. These are adultery, desertion, cruelty, change of religion, mental instability, presumption of death, venerable disease and renunciation of the world. After the amendment of 1964 which introduced the breakdown theory and also added more grounds on which wife alone could seek divorce such as pre-act polygamous marriages, sodomy, bestiality etc. When these matrimonial clauses were added in the Hindu marriage act, then some bars were also given under section-23 which are called the matrimonial bars. Thus, it is laid in the section that a petitioner cannot take an advantage of his or her own wrong or disability, no matrimonial relief can be given if any of the condition mentioned in the section 23 are not fulfilled. The grounds of the divorce mentioned under section-13 of the Hindu marriage are discussed in detail below:
Adultery may be punished under criminal law or under the matrimonial law. Adultery is when a married spouse performs marital intercourse with another person, other than his own spouse with the consent of the person. If the consent of the opposite sex person is not there then it will be considered as rape and not a sexual intercourse. Under section-497 of the Indian penal code, adultery can be committed by only by a man and not by a woman and the sexual intercourse must be performed with the consent of the person who is the wife of some other person. But now this section has been struck down by the supreme court of India in Joseph Shine vs. Union of India, accepting it as violative if article 14 of the constitution. In the court when adultery is a ground of divorce, the relief is sought against the spouse and not against the adulterer. In some proceedings the adulterer is also made the co-respondent. Adultery is considered as an offence against the marriage and it is necessary that a valid marriage should be there between the parties when the offence pf adultery is committed. If the marriage between the parties was void from the very beginning then the ground of adultery cannot be used for seeking divorce. On single act of adultery is enough for divorce or judicial separation. The burden of proving the charge of adultery is on the petitioner and at one time this was to be proved beyond all reasonable doubts but now it can be proved by preponderance of probabilities.
Desertion means desertion of the petitioner by the other party to the marriage without any reasonable cause and excuse and without the consent of the petitioner. It is the permanent abandonment of the petitioner by the respondent without any reasonable cause. Desertion is withdrawal not only from the place but also from the state of things. To constitute desertion, it is necessary that previous cohabitation must be there, without cohabitation any kind of desertion cannot be there. Failure to perform the matrimonial obligations, while living in the same house is a desertion from the state of things. The desertions are of three types, actual desertion, constructive desertion and the willful neglect. The main elements to constitute desertion are factum of separation and animus deserdendi. It means that the deserting spouse must have left the house with an intension to forsake or abandon the other party permanently. Sometimes there may be a case in which the respondent has left the matrimonial home for some other reason but then he forms an intention to not return. This will be considered as desertion at the moment when the intension is formed. Thus, to constitute desertion factum and animus must co-exist and it is not necessary that the intention must precede factum. The abandonment must be done without reasonable cause and excuse and without the consent of the petitioner. The statutory period of two years must have run out before a petition is presented before the court.
Cruelty is a ground for judicial separation and divorce both. It has been defined keeping in mind the human behaviour or conduct. To constitute cruelty the conduct must be weighty and grave which makes it difficult for man to live reasonably with the other spouse, as decided in Naveen Kohli vs Neelu Kohli. It is not necessary that the mental pain and suffering that parties are reasonably expected to live together. cruelty always causes danger to life or health but causing danger to health, reputation and mental pain is also a cruelty. The intention to be cruel was an essential ingredient earlier but now it is necessary to have an intension to be cruel. It was rejected in Williams vs Williams, in this case the acts of cruelty alleged by wife were the persistent accusation of adultery by the husband who was found to be insane. Physical cruelty is physical violence by one spouse to another resulting in injury to body, limb or health, or causing reasonable apprehension of the same whereas mental cruelty is a case where there is so much the concept of cruelty has varied from time to time in the society. No definition of cruelty can be set up as it its definition changes with the dynamic environment. Cruelty may be subtle or brutal, it may be physical or mental. The burden of proving adultery or cruelty is on the petitioner but he need not prove it beyond any reasonable doubt.
Its is a ground for both judicial separation and divorce. The clause now lays down that a petitioner may get a degree of divorce if the respondent is suffering from mental disorder of such a kind and of such an extent that it is not reasonable for the petitioner to live with the respondent. This provision has been borrowed from the English law and has been modified according to the changing society. The burden of proof is on the petitioner, he has to prove not merely the said mental disorder, but should also establish that on what account the petitioner is not able to live with the respondent.
The venerable disease should be of communicable nature and is perfectly a ground for judicial separation and divorce. But the respondent should not have contracted the disease from the petitioner. If, this is the case then the petition for divorce cannot be granted as according to section-23(a), the petitioner cannot take the advantage of his own wrong.
If the respondent has ceased to be Hindu by religion by converting to another religion, the divorce can be obtained. The two essentials are the person has ceased to be Hindu and second is he has converted onto some other religion. The conversion of the person to some other religion does not automatically dissolves the marriage between the parties. A decree of divorce needs to be taken to dissolve the marriage.
RENNUNCIATION OF WORLD:
the petitioner may ask for divorce if the respondent has renounced the world and has entered some other religious order. To constitute a ground for divorce, both conditions must be satisfied. To enter into the religious order a person has to undergo the ceremonies and rites prescribed by the order which he enters. Unless the ceremonies are performed, the person is not considered to be entered into religious order. If the person renounces the world but does not enter any holy order by performing the ceremonies then it is not renunciation. Basically, renunciation is a long form of desertion, where there is no hope that the spouse will ever return to resume cohabitation.
PRESUMPTION OF DEATH:
When a person is not heard alive for seven years or more by those who would have normally heard him or about him had been alive, then the person is considered to be dead. The burden of proving the person alive lies upon the person who affirms that he is alive. The petitioner in such cases can seek divorce and are free to marry again. But if the remarriage is done without dissolving the marriage then the second marriage is considered void and the missing spouse after returning can question the validity of the marriage.
The above discussed grounds of divorce are available both to husband and wife and any one of them can file petition for divorce on these grounds. But section-13(2) gives us the special grounds of divorce on which alone the wife can seek divorce. Earlier there were only 2 grounds mentioned but now in total 4 grounds are there for the wife. The wife can seek divorce on the grounds such as pre-act polygamous marriages, when the husband is found guilty of sodomy or bestiality or any kind of sexual offence, when the cohabitation has not been resumed even after passing of the decree of maintenance and lastly when the female herself repudiates the marriage after attaining the age of 18 years.
Even after the amendments of 1964 which introduced the breakdown theory and the amendment of 1976 which introduced the consent theory of divorce, the fault grounds of divorce and the bars to the matrimonial relief given under section-23(a) are still an essential part of Hindu law of divorce. The fault theory was the earliest theory and mostly it is seen that the cases brought under these grounds have connection with some previously decided cases. So, the judges can again revisit the case and by following the principle of stare decisis, review the orders and modify according to the needs to present society.