Divorce means putting an end to the marriage by dissolution of marital relations. The parties can no longer be husband and wife. The grounds on which the divorce is taken are generally categorised into the following theories.
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1. Offence, Guilt or Fault Theory of Divorce:
If either of the parties is guilty of committing any matrimonial offence the aggrieved party is entitled for divorce. The other party is supposed to be innocent. For instance, if one of the parties committed adultery or treated the other party with cruelty or deserted the other party, the other party is entitled for divorce.
ADVERTISEMENTS:
At times, even though one of the parties is not guilty of committing any matrimonial offence, but suffers from a fault like insanity the other party is entitled for divorce. The grounds under ss.13 (1) and 13 (2) mostly relate to this theory.
2. Consent Theory:
This theory is based upon the premises that the marriage is entered into by the parties out of their free consent and volition and hence they must also be free to put an end to the marriage of both of them agree. Section 13-B of the Hindu Marriage Act covers this aspect.
3. Breakdown Theory:
This theory provides that if the marriage is irretrievably broken down and became a wreck leaving no substance in the marriage except the form, the parties must be free to put an end to the marriage. Section 13 (1-A) (i) and (ii) which provide grounds for divorce in the case of non resumption of cohabitation after the decree of restitution of conjugal rights and judicial separation, cover this theory. Section 13-C which was sought to be introduced in 1981 recognised divorce on the ground of irretrievable breakdown of marriage.
The Bombay High Court held that long lapse of time in litigation alone cannot be a ground to claim a decree for divorce without proof of any of the grounds mentioned in the section. Neeta Kirit Desai v. Bino Samuel George, AIR 2003 Bom. 7.
