Theories of breakdown of marriage:

Background:

 In early Roman law marriage and divorce were essentially private acts of parties.
 Whenever two persons wanted to marry, they could do so, and whenever they wanted to
put their marriage apart, they were equally free to do so.
 No formalities or intervention of an agency was necessary for either.
 In England before 1857, a marriage could be dissolved only by an Act of Parliament.
 After a considerable pressure, divorce was recognized under the Matrimonial Causes Act,
1857, but only on one ground i.e. adultery.
 Later on, insanity was added as a ground of divorce.
 However, marriage is also regarded as a social institution and not merely a transaction
between two individuals, and therefore, it was argued that there was a social interest in
prevention and protection of the institution of marriage was hedged with legal protection.
 The inevitable consequence of this philosophy was that marriage came to be regarded as a
special contract which cannot be put to an end like an ordinary contract.
 A marriage can be dissolved only if one of the spouses is found guilty of such an act and
conducts which undermined the very foundation of marriage.
 This led to the emergence of the offence or guilt theory of divorce.
 Marriage as an eternal union was not altogether immune to rejection.
 Divorce was not alien to Indian society; it was devoid of any formal recognition as a tool of
self-emancipation by the marriage partners.
 During the pre-Vedic era, despite separation of marriage partners, the marriage was not
dissolved.
 Women had never used their rights to disown men.
 However, two ancient smriti writers‘ Narada and Parasara laid down few grounds on which
women could remarry.
 Impotency, she was allowed to take second husband if the first one was missing or dead, or
had taken to asceticism (abstinence from sensual pleasures for the purpose of attaining
spiritual goals), or degraded in caste.
 However, earlier there was no systematic code to regulate divorce in specific.

Indissolubility of marriage theory:

 According to this theory marriage is an unbreakable tie between husband and wife. It is a
union of bone with bone and flesh with flesh. It is eternal.
 Even if the relations between the parties are unhappy, they have to live and die with it. This
is the theory of the shastric Hindu Law.
 The marriage could be dissolved neither by the act of the parties nor by the death of one of
them. Divorce was an anathema.
 However, this was the law for the regenerate castes, the so called upper three castes. The
shudras and tribes recognized divorce and had their customs relating there to.
 The Hindu marriage Act abandoned the shastri position. Marriage is no more unbreakable
rope even for the regenerate caste.
 If the necessary conditions as given under section 13 and 13B exist, every Hindu is entitled to
the dissolution of his or her marriage.
 The Hindu Marriage Act is indeed a revolutionary piece of legislation from this point of view.

Divorce by will theory:

  According to this theory, one can divorce one‘s spouse whenever one pleases.
 Marriage is more difficult than divorce here, whereas the case should be just the opposite.
 This theory is recognized by the Mohammedan law.
 For example: A Muslim husband of sound mind may divorce his wife whenever he so desires
without assigning any ground therefore. He need not seek the assistance or intermeddling of
a judicial officer or of the counsel of his community.

Fault/guilt theory:

 The guilt or offence theory of divorce is essentially a 19th century concept where the society
considered divorce as an evil, as devil‘s mischief, and therefore that society could agree for
divorce only on that basis that one of the parties has committed some sin, some very
heinous offence against marriage.
 As a corollary to the guilt of one party, the other party was required to be totally innocent.
 According to this theory, if a party commits a matrimonial offence the aggrieved party may
seek divorce form the delinquent spouse.
 It is only the matrimonial offence which is a ground of divorce
 Traditionally, adultery, desertion and cruelty are considered as matrimonial offences. But
this should be treated only as an illustrative list.
 Rapes, sodomy, bestiality, marring an underage person, are also examples of matrimonial
offences.
 If the respondent is not guilty of any of these offences, divorce cannot be granted against
him even if he has committed the offence of murder, dacoity, cheating, theft, treason,
smuggling, black marketing or bribery etc. hence what matters for divorce is the person
injury to the marital relations of the other spouse and not the injury done to any other
person(s) in the society.
 A fault divorce is usually chosen by a spouse who wishes to be vindicated by proving the
other's fault.
 The offence theory stipulates for two things:
 A guilty party, i.e., the party who has committed one of the specified matrimonial
offences, and
 an innocent party, who has been outraged and who has played no role in the
criminality or the matrimonial offence of the other party.

Frustration of marriage theory:

 The marriage may be frustrated for a party to marriage even though the other party is not
guilty of any marital offence.
 This may happen when he or she is suffering from mental unsoundness or has changed his
religion or renounce the world or has disappeared for a very long period.
 If a person prefers a release from such a fruitless marriage he or she should be, according to
this theory helped.
 Divorce is a relief from this point of view. The Hindu Marriage Act recognizes these grounds
as being grounds for divorce

Consent theory:

 According to this theory, if the husband and wife agree to part for good, they should be
permitted to get their marriage dissolved.
  Compulsive cohabitation may give birth to matrimonial delinquencies which give rise to
grounds for divorce.
 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.
 Divorce by mutual consent mean that the case is not like usual ones in which one party
petition against the other for divorce and the other party resist the same.
 It means that both the party makes a joint petition to the court for divorce between them.
There may be a genuine desire on the part of both to get rid of each other.
 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. Then it was thought
that a divorce by mutual consent was the answer to this problem.
 It was asserted that freedom of marriage implies freedom of divorce.
 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.
 The Special Marriage Act, 1954, and the Hindu Marriage Act, 1955 (after the amendment of
1976), the Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936 recognize divorce by
mutual consent
 Under Muslim law also, divorce by mutual consent is recognized in two forms
 Khula, and Mubbaraat.
 Khula: The word Khula literally means ―to put off. In law it means laying
down by a husband of his right and authority over his wife for an exchange.
In Khula the desire for divorce emanates from the wife, while in
 Mubbaraat: aversion is mutual; both parties desire dissolution of marriage.
 It denotes the act of freeing one another mutually, and the proposal for
divorce may emanate from either spouse.

Irretrievable breakdown of marriage theory:

 Irretrievable breakdown of marriage comes under the breakdown theory where the
marriage is supposed to have reached a point wherein there is complete breakdown of the
institution with no scope for retrieval of that previously existing bond.
 The irreparable nature of the situation gives rise to the alternative of providing the couple
an option to leave each other’s company without bitterness and distress
 Justice V.R Krishna Iyer had famously explained this concept:
“Daily trivial differences get dissolved in the course of time and may be treated as the
teething trouble of early matrimonial adjustment. While the stream of life lived in married
mutuality may wash away small pebbles, what is to happen if intransigent incompatibility of
minds breaks up the flow of stream? In such a situation we have the breakdown of marriage
itself and the only course open for law is to recognize what is a fact and accord a divorce”.
 In context of the common law countries, progress with regard to this aspect started
from The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920  wherein a
separation clause for a span of three or more years was introduced as a ground to file a
petition for divorce with the judgment being in the hands of the courts to understand the
breakdown principle and decide the case for divorce.
 In India, the first major proponent of this concept was through the 71 st Report of the Law
Commission of India (1978) which dealt with the question if the granting of divorce should
be based on fault theory or on breakdown theory.
  It emphasized that restricting divorce grounds based on faults shall cause injustice to those
couples who are stuck in situations where neither party have any fault with the marriage
having become a merely an external appearance without any efficacy.

Scope in India:

 Jayachandra v. Aneel Kaur– 

 The issue involved here was if in the event of a long-drawn litigation process, a
couple can claim divorce to shorten the agony due to the lengthy procedure
through the model of irretrievable breakdown of marriage?
 The husband in the case complained about the “obnoxious and humiliating”
behavior of the wife and seek divorce by mutual consent under section 13 of the
Hindu Marriage Act, 1955 so as to avoid unnecessary complications.
 However, the court went through the evidence and provided a decree for judicial
separation. Supreme Court in the appeal rather decided that there did exist cruelty
and it deduced from the facts & circumstances that the marriage had irretrievably
broken down. The court further stated that it knows that this concept can be used
to provide a decree for marriage but it continued with a view to complete justice
and shorten the mental agony of the parties.
 Ajay Sayajirao v. Rajashree Ajay Desai-
 when there is no alleged fault ground proved, relief cannot be granted on ground of
irretrievable breakdown of marriage.
 However, a differing stance was taken in the case of Dinesh Kumar Mandal v. Mina Devi
where it was held that a couple living separately for many years justify the fact that the
marriage is broken beyond repair and even though the alleged ground of adultery was not
proven here, divorce was granted.
 Kanchan Devi v. Promod Kumar wherein the parties were staying separately for over a
period of ten years and every attempt at any reconciliation turned futile.
 In its order, the court invoked its jurisdiction under Article 142 of the Constitution
which has the provision to provide “any decree or order as is necessary for doing
complete justice in any case or matter pending before it”.
 In the countries of the world the breakdown principle has found recognition in three forms:
 (i) the determination of the question of fact whether in fact a marriage has broken
down is left to the court; if the court, in a case before it, is convinced that a marriage
has broken down, it passes a decree of divorce.
 (ii) The legislature lays down the criterion of break-down and the criterion that has
been laid down in most countries is that if parties are living separate and apart for a
certain duration ranging from one year to seven years it is sufficient proof of
breakdown of marriage, and a decree of divorce may be granted at the instance of
either party.
 (iii) If parties are living separate for certain duration one year to two years under a
decree of judicial separation, or of a decree of restitution of conjugal rights is not
complied with for certain duration – one year to two years – the either party may
seek divorce.
 It should be noticed clearly that in breakdown principle of divorce culpability or guilt or
innocence of either party does not figure anywhere. A marriage is dissolved just because it
has broken down.