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CHANAKYA NATIONAL LAW

UNIVERSITY

Project Report on
“FAULT THEORY OF DIVORCE”

Submitted to Submitted By
Mrs. Pooja Srivastava Raju Patel
(Faculty of Family Law) Course: B.A.LLB
Roll No: 1960
Semester: 3rd

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DECLARATION

I hereby declare that the work reported in the Project Report entitled
“Fault Theory of Divorce”
submitted at Chanakya National Law University, Patna is an authentic record of
my work carried out under the supervision of Mrs. Pooja Srivastava. I have not
submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report

RAJU PATEL
B.A. LLB
3rd Semester
Roll No: 1960

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ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project,


although prepared by me, is a culmination of efforts of a lot of people. Firstly, I
would like to thank MRS. POOJA SRIVASTAVA for helping me in making the
project on
“Fault Theory of Divorce”
for his valuable suggestions towards the making of this project.
Further to that, I would also like to express my gratitude towards our seniors
who did a lot of help for the completion of this project. The contributions made
by my classmates and friends are, definitely, worth mentioning.
I would like to express my gratitude towards the library staff for their help also.
I would also like to thank the persons asked for help by me without whose
support this project would not have been completed.
I would like to express my gratitude towards the Almighty for obvious reasons.
Moreover, thanks to all those who helped me in any way be it words, presence

Encouragement or blessings...

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Table of Contents
DECLARATION ................................................................................................................... ii
ACKNOWLEDGEMENT ....................................................................................................... iii
INTRODUCTION ................................................................................................................. 5
RESEARCH METHODOLOGY ........................................................................................................ 6
Aims and objectives...................................................................................................................................... 6
Hypothesis .................................................................................................................................................... 6
Limitation ..................................................................................................................................................... 6
Sources of data ............................................................................................................................................. 6
FAULT THEORY: LEGAL BACKGROUND .................................................................... 7
POSSIBLE FAULTS ........................................................................................................ 9
CONCLUSION ................................................................................................................... 16
BIBLIOGRAPHY ................................................................................................................ 17

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INTRODUCTION
Divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union
of the husband and wife. Manu has declared that a wife cannot be released from her husband
either by sale or by abandonment, implying that the marital tie cannot be severed in anyway.
It, therefore, follows, that the textual Hindu law does not recognize a divorce. Although Hindu
law does not contemplate divorce yet it has been held that where it is recognized as an
established custom it would have the force of law. In the absence of a custom to the contrary,
there can be no divorce between a Hindu husband and his wife, who by their marriage had
entered into a sacred and indissoluble union, and neither conversion, nor degradation nor loss
of caste. Nor the violation of an agreement against polygamy dissolved the marriage tie. Manu
does not believe in discontinuance of marriage relationship.

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. A marriage cam be
dissolved only if one of the spouses is found guilty of such an act and conducts which
undermine the very foundation of marriage.

Divorce means dissolution of marriage by a competent court. Divorce arises when a person
wants to break an onerous marital relationship. The law provides for a way to move out of an
unpleasant marriage by seeking divorce in a court of law. Depending upon the nature of
divorce, theories have been developed as 'fault theory' and 'no fault theory. Fault divorces are
not as common and ,in fact , most states no longer recognize them, a spouse can request that a
divorce be granted based on some fault of the other spouse.

The Fault or guilt theory of divorce is essentially a 19th century concept where the society
abhorred divorce as an evil, a devils 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.

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RESEARCH METHODOLOGY
Aims and objectives
The researcher intends to help you understand the nature and impact of Fault theory, which is
an integral part of our Divorce Laws. After Reading this Research paper you will be able to
:
1. Critically analyse the Fault theory of Divorce
2. Distinguish between Fault theory and other type of theories of divorce
3. Understand the meaning and social impact of related ideas.
Hypothesis
The Researcher has presumed:
1. That Fault theory give spouse the right to divorce for matrimonial offences committed
by other spouse during their married life.
2. That Negotiation behaviour would be related to appraisals of divorce settlements

Limitation
The Present Research is confined to a time limit of two weeks. The research conations both
doctrinal and non-doctrinal works. The researchers has done his best to write exhaustive data
regarding the topic of research.

Sources of data
o Primary Sources
1. Legislative Provisions
2. Cases laws
3. Indian Penal Code

o Secondary Sources
1. Books
2. Newspaper
3. Websites
4. Journals
5. Magazines

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FAULT THEORY: LEGAL BACKGROUND
The Fault theory of divorce is essentially a 19th century phenomenon where the society
abhorred 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 innocent1.

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. No criminal offence, howsoever heinous, is a ground for divorce. Traditionally,
adultery, desertion and cruelty are considered as matrimonial offences. But this should be
treated only as an illustrative list. Rapes, sodomy, bestiality, refusal to obey the order of a court
to pay maintenance to the wife, 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 dine 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. In some states, the spouse who proves the other's fault may receive a greater
share of the marital property or more alimony2.

The offence theory stipulates for two things: (i) a guilty party, i.e., the party who has committed
one of the specified matrimonial offences, and (ii) an innocent party, who has been outraged and
who has played no role in the criminality or the matrimonial offence of the other party. If the
purpose of the divorce law was the punishment of the guilty party, then it was natural to lay down
that the other party should have no complicity in the guilt of the offending party. If the petitioner‘s
hands are not clean, he cannot seek relief12. It is a different matter that the English courts took
this principle to its logical end. This dichotomy of matrimonial offence and innocence led not
merely to the evolution of matrimonial offences but also to the matrimonial bars. Such are the
notions of matrimonial offence and matrimonial innocence that the burden of proof of both is on
the party who seeks relief. English law classified these bars to matrimonial relief into discretionary

1
See Paras Diwan, Modern Hindu Law (3rd ed.) Pg:61-75
2
Ramesh Chandra Nagpal, “modern Hindu Law” E.B.C.

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bars and absolute bars. The existence of the absolute bar was fatal to the matrimonial petition,
while in the case of discretionary bars, the court had discretion and it might exercise in favour of
the petitioner, or it might refuse to do so. Under Indian law all bars are absolute bars.

The guilt theory, on one hand, implies, a guilty party, ie., commission of matrimonial offence
on the part of one of the parties to the marriage, and, on the other hand, it implies that the other
party is innocent, i.e.: in no way a party to, or responsible for, the offence of the guilty party.
This principle was taken very far in English Law; so much so that if bot the parties,
independently of each other, committed matrimonial offence the marriage could not be
dissolved. For instance, if a petition is presented on the ground of respondents adultery and it
is established that the petitioner is also guilty of adultery, them the petitioner cannot be allowed
divorce. This is known as the doctrine of termination. One of the chief Justice of England
Caustically remarked; “Perhaps it is not vouchsafed to everybody, whether in holy orders or
out of them, to appreciate the full beauty of the doctrine that if me of the two married persons
id guilty of misconduct there may properly be divorce, while if both are guilty they must
continue to abide in the holy state of matrimony” English Law has bow abandoned this
position.
Since the guilt theory requires that the petitioner should be innocent, the English law evolved
the doctrine of matrimonial bars, discretionary bars and absolute bars. This means that even if
a petitioner is able to establish a ground of divorce to the satisfaction of the court, he may not
get divorce if one of the matrimonial bars3 is proved against him.

3
Section 23, The Hindu Marriage Act, 1955: Decree in proceeding

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POSSIBLE FAULTS
In fault theory of divorce one of the spouse requests the court that divorce be granted based on
some fault of the other spouse. It is necessary to have a guilty party and an innocent party and
only innocent party can seek remedy of divorce. If either of the parties is guilty of committing
a matrimonial offence, the aggrieved party alone is entitled to divorce. When both spouses seek
a divorce on the ground of fault of other and both can prove that the other spouse is at fault,
the court decides which one is least at fault4

When the right to dissolve the marital bond was first introduced in to matrimonial offence, or
in other words, had violated the terms or conditions of the marriage contract, then the other
spouse had the right to dissolve the marriage.

In almost all the divorce laws, common grounds for divorce have been identified. In Hindu
marriage Act, 1955, nine fault grounds ere incorporated under Section 13(1) on which either
husband or wife can claim divorce, they are;
1. Adultery5 - one of the spouses having voluntary sexual intercourse with any person
other than his or her spouse.
2. Cruelty6 , which includes the infliction of unnecessary emotional or physical pain
and abusive treatment
3. Desertion7 - one spouse deserting the other spouse for a continuous period not less
than two years immediately preceding the presentation of the petition.
4. Conversion- one of the spouses ceased to be Hindu by conversion to another
religion
5. Insanity8- One of the spouses has been incurably of unsound mind, or has been
suffering continuously or intermittently from mental disorder to such an extent that
the petitioner cannot reasonably be expected to live with such spouse.
6. Leprosy- Virulent and incurable from Leprosy
7. Venereal disease9- In communicable form

4
Darshan Gupta v. Radhika Gupta, 2013 AIR SCW 5505.
5
See section 13(1) (i), the Hindu Marriage Act, 1955; Section 27(1)(a), the special marriage Act 1954; section
10(1)(i), the divorce act, 1869; Section 32(d), the Parsi Marriage and dissolution Act, 1936
6
Sec. 13(1)(ia), The Hindu Marriage Act, 1955; Section 27(1)(d), The special marriage act 1954
7
Section 13(1)(ib), the Hindu marriage Act
8
Section 13(1)(iii), the Hindu marriage Act
9
Section 2 (v), The dissolution of Muslim Marriage Act, 1939

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8. Renunciation - One of the spouses has renounced the world by entering any
religious order
9. Presumption of death - has not been heard of as being alive for a period of seven
years.

Besides the Grounds above, A wife has been provided four additional grounds under
section 13(2) of the Hindu marriage Act, they are :
1. Pre- Act Polygamous Marriage – That the Husband Has another wife from before
the commencement of the Act, alive at the time of solemnization of the marriage of
the petitioner. The other wife should be alive at the time of presentation of the
petition as well.
2. Rape, sodomy or bestiality – That the husband has, since the solemnization of the
marriage, been guilty of rape, sodomy or bestiality.
3. Non-resumption of Cohabitation after a decree/ order of maintenance – Where in a
suit under Section 18 of the Hindu Adoptions and maintenance Act,
1956(Maintenance of Wife) or in a proceedings under section 125 Cr.P.C, a decree
or order has been passed against husband awarding maintenance to the wife,
cohabitation between the parties has not been resumed for one year or upwards.
4. Repudiation of marriage – Where the marriage was solemnized before the wife
attained age of 15 years and she has repudiated the marriage after attaining the age
but before attaining the age of 18

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o Adultery
Adultery is a ground for divorce under all personal laws. Under the Hindu Marriage act10,and
special marriage act11, the ground is worded thus: respondent “has after the solemnization of
marriage, had voluntary sexual intercourse with any person other than his or her spouse.” Under
Parsi Marriage and Divorce act, the wordings are “Defendant “has since the marriage
committed adultery”12
In Mallika v. Rajendran13, it was established that husband was guilty of adultery and desertion,
the wife was granted a decree of divorce.14 While under the act husband can sue for divorce on
the ground of wife’s adultery simpliciter, the wife has to prove that the husband is guilty of
more than adultery, that is to say adultery should be incest, or coupled with cruelty, or coupled
with desertion without reasonable cause for two years or more coupled with bigamy, etc. In
Ammmim v. Union of India15, this provision was held to be discriminatory. A special bench of
Kerala high court said that this provision was violative of Articles 14 and 21.
In this landmark decision, the court said that since the words “adultery coupled with “ desertion,
etc are severable and liable to be struck down as ultra vires of Articles 14, 15, 21. The Christian
wife may sue for divorce on the grounds of Adultery, desertion and cruelty.

Adultery Defined – It means “consensual sexual intercourse between a married person and
a person (whether married or unmarried) of the opposite sex not being the other’s spouse.”
In short, the spouse who engages in extra marital intercourse is guilty of adultery”.

Sexual Intercourse – one of the essential elements of adultery is sexual intercourse. Adultery
pre-supposes a carnal unison between a man and a woman. Mere attempt at sexual
intercourse will not amount to adultery. Some penetration however brief, must take place.

Adultery and Living in adultery – As a ground of divorce, one act of adultery is enough. But
to establish living in adultery means “continuous course of adulterous life as distinguished
from one or two lapses from virtue16”

10
Section 13(1)(i)
11
Section 27(1)(a)
12
Section 32(d)
13
AIR 1995 Mad. 100
14
Section 10(before amendment)
15
AIR 1995 Ker 252
16
Rajani v. Prabhakar, AIR 1950 BOM 204

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o Desertion
Under most of the personal laws in India, desertion is recognised as a ground for divorce and
judicial separation. The Hindu marriage act and Special Marriage Act lay down that desertion
as a ground for divorce or judicial separation should be for continuous period of two years17.

o Desertion, Defined – In the early English Decisions, desertion was given a restricted
interpretation. Later on, it was given wide meaning. Under the modern English Law,
two years desertion constitutes a fact of breakdown of marriage18. Broadly Speaking,
desertion is based on the rejection or repudiation by one party of all the obligations
of marriage19.

Section 13(1) of HMA and 27(1) of SMA lays down that “desertion means Desertion of the
petitioner by the other party to the marriage without any reasonable cause and without the
consent or against the wishes of such party, and includes wilful neglect of the petitioner by
the other party to the marriage, and its grammatical variations and cognate expressions”.

Desertion is total repudiation of marital obligations. Desertion includes;


1. Actual desertion
2. Constructive Desertion
3. Wilful Neglect

17
Section 13(1)(ib) of the former and section 27(1) of the latter
18
Section 2(d), Matrimonial causes Act, 1973
19
Perry v Perry, (1951)

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o Cruelty
Under Most of the personal laws, cruelty is a ground of Judicial separation and divorce. Of all
the matrimonial offences, cruelty is probably the most difficult to define.
The legislature and judges deliberately avoided formulating any definition of cruelty, because
acts of cruelty are infinitely variable, and no attempt at drawing a complete list as to what
constitutes cruelty can ever succeed.20 Further, act of conduct which may be regarded as cruel
in one case may not be regarded cruel in another. “legal cruelty” may not be the same as cruelty
in popular sense. Thus, no case may be precedent for another.
In G.V.N Kameshwara Rao v. G. Jalili,21 it has been held by the supreme court that cruelity
need not be of such nature as to create reasonable apprehension that it would be harmful for
the petitioner to live with the other party. It would be cruety if the act is committed with the
intention to cause suffering to the other party. Further, whether a particularact would constitute
cruelty or not, social status of the parties would be a relevant consideration

o Meaning
Under Hindu Marriage Act22 and Special marriage act23 the ground is worded thus: the
respondent, “has afyer the solemnization of marriage, treated the petitioner with cruelity.”

o Cruelty as a changing concept


From the aforesaid review of cruelty as a ground of matrimonial relief in various Indian
Statutes, it is evident that the concept of cruelty has not remained the same as it was some
hundred or even fifty years back.
Although No precise definition of cruelty has so far been attempted and the courts have
purposely left cruelty undefined. Cruelty may be subtle or brutal, physical or mental. It may be
by words, gestures or mere silence.24 Acts of conduct constituting cruelty can be so numerous
and varied that it would be impossible to discern any definite pattern or patterns.

20
Sukumar v. Tripathi, AIR 1992 Pat 32
21
AIR 2002 S.C. 576
22
Section 12(1)(a)
23
Section 27(1)(d)
24
Dastane v. Dastane AIR 1975 SC 1534

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o Insanity
Under Divorce Act, 1869-2001, by virtue of section 10(iii), the respondent has been incurably
as unsound of for a continues period of not less than two years immediately preceding the
presentation of the petition.
At present under the Hindu marriage act, the special marriage act and the parsi marriage and
divorce act , insanity as a ground is worded identically. By the amendment of 1976, the clause
had been modified in first two statutes and an identical clause has been inserted in the third
statute by the amending Act of 1988.
The definition of mental disorder and psychopathic disorder have been bodily lifted from
clauses (1) and (4) of section 4,mental Health Act,1959.
The present definition is much wider than the three years’ continuous and incurable insanity.
The incurable unsoundness of mind may be of any duration; no period is specified. It is
incurable, that is enough.

o Leprosy
Leprosy is ground for divorce and judicial separation under most of the matrimonial laws of
the Indian communities. Under the Hindu Marriage Act, the ground runs : respondent ‘has been
suffering from leprosy, the disease not having been contracted from the petitioner”25
Under any of the statutes of matrimony, where leprosy is a ground for divorce or judicial
separation, the duration of leprosy is not specified. Under the HMA, leprosy to be a ground for
divorce or judicial separation must be (a) incurable and (b) Virulent.
At present, leprosy in its early stage is curable. It seems that some period must elapse before
leprosy becomes incurable.

o Venereal diseases
Venereal disease is a ground for divorce and judicial separation under the matrimonial laws of
most Indian communities. Under the Hindu Marriage act and the special marriage act, the
ground is worded in identical language. The ground runs : “The respondent “has been suffering
from veneral disease in a communicable form.” It is immaterial that the disease is curable or
was contracted innocently.
Conversion or Apostasy

25
Section 26(1)(g)

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Conversion or apostasy is a ground for divorce and judicial separation under some of the Indian
personal laws, though it is not a ground, under the special marriage act which stipulates for
interreligious marriages.
Under the Hindu Marriage act, whereunder it is a ground for divorce under and judicial
separation, the clause runs thus: the respondent has ceased to be a Hindu by another religion.
Apostacy is ground for divorce under Muslim law.

o Presumption of Death
In all systems of law, it is now accepted that death dissolves a marriage. But what will be the
position in cases, where there is no positive proof that death has occurred . In England, since
1937, the law provides that a spouse may obtain a decree of dissolution of marriage on the
basis of presumption of death. This is also the position under the modern English law. From
English law, the provision has come down to the Indian matrimonial statutes, whereunder
presumption of death is a ground for divorce.
Under the Hindu marriage act and special marriage act, where it is a ground for divorce as well
as judicial separation.

o Seven years’ imprisonment


Seven or more years’ sentence of imprisonment is a ground for divorce and judicial seperation
under some Indian personal laws. Under type special marriage act 1954, the ground runs thus
: respondent “is undergoing a sentence of imprisonment for seven years or more for an offence
as defined in the IPC”.

Renunciation of world
Renunciation of worlds is a ground for divorce only under Hindu law. The ground runs
respondent “has renounced the world by entering into any religious order.”
According to the religious belief of Hindus, every Hindu ids required to enter into the sannyasa
Ashrama. Since this is the last ashrama entered into the old age, it amounts to civil death.

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CONCLUSION
Through this paper, we have analysed the Section 13 of the Hindu Marriages Act, 1955.
Divorce by different theories provides an opportunity of amicable resolution of disputes
between parties and saves time and money. 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. However, time has changed; situations have changed; social ladder has turned.
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. But the manner
in which the judiciary is dealing with the subject of irretrievable break down of marriage, it is
feared that it will completely pause the system of marriages. Every theory has its negative and
positive traits. There applicability
differs from situation to situation. Therefore, it is very essential that the lawmakers of our
country should deal with the subject in a very cautious manner after considering in detail its
future implications. Guilt theory of divorce is one of the theory which is taken in consideration
by the court in
deciding divorce cases under Hindu Marriage Act. According to this theory a marriage can be
dissolved only if one spouse committed any matrimonial offence. Section 13 of the Hindu
Marriage Act enumerates grounds of divorce. This section is based upon “guilt theory” or
commonly known as “fault theory”.
This guilt theory of divorce differentiates the parties on the ground of guilt and innocence.
Innocent party has right to get divorce on the ground that other party has committed a
matrimonial offence or a guilty party. Hence, a part y seeking divorce. must be innocent.
Further said that under this jurisprudential principle, it is only on the ground of an opponent’s
fault, that a party may approach a court for seeking annulment of his/her matrimonial alliance.
In other words, if either of the parties is guilty of committing a matrimonial offence, the
aggrieved party alone is entitled to divorce

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BIBLIOGRAPHY
Statutes
1. The Hindu Adoptions and Maintenance Act (HAMA), 1956
2. The Guardians and Wards Act 1890
3. The Juvenile Justice (Care and Protection of Children) Act, 2000
4. The Juvenile Justice Care and Protection of Children Amendment Act,2006
5. The Central Model Rules under Juvenile Justice Act

Books
1. Agnes Flavia, family Law and constitutional Claims, oxford University Press, 2nd Revised
Edition, New Delhi, 2011
2. B. M Gandhi, Family Law 1, EBC Publications, 4th ed. Haryana 2015
3. Diwan Paras, Family Law, Allahabad Law agency, Haryana, 2013
4. Kusum, Family Law 1, Lexis Nexis Publication, 4th Ed., Haryana 2015
5. Kusum, Family Law lectures 1, Lexis Nexis, Nagpur, 2011

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