INTRODUCTION

 The Hindu Marriage Act, 1955 has introduced vital and dynamic changes in
the Hindu Law of marriage and divorce. It has laid down clear provisions
regarding divorce under certain circumstances. Divorce is laid down under
Sections 13, 13(B), 14 and 15 of the Act. Section 13 deals with the
circumstances in which the right to divorce accrues. Section 14 limits the
right to obtain divorce under certain conditions and Sec 15 lays down the
limitations on the right of divorced persons to marry again.
 There are various theories of divorce on the basis of which most of the
grounds of judicial separation and divorce are formulated in Section 13(1) of
Hindu Marriage Amendment Act,1976.
 MEANING OF DIVORCE
 Divorce is the termination of a marriage or marital union, the cancelling or
reorganizing of the legal duties and responsibilities of marriage,
 Divorce is also known as dissolution of marriage,
 Divorce is dissolving the bonds of matrimony between a married couple
under the rule of law of the particular country or state.
 Divorce laws vary considerably around the world, but in most countries
divorce requires the sanction of a court or other authority in a legal process.
 FAULT THEORY
 A fault divorce is usually chosen by a spouse who wishes to be vindicated by
proving the other's fault.
 According to this theory, the spouse can seek divorce from the other spouse
if he or she is found in fault of committing a matrimonial offence.
 There is the presence of personal injury to the matrimonial relations of the
spouses.
 This theory implies, one party is guilty and the other party is innocent.
 Only the innocent party can seek the remedy of divorce under this theory.
 ORIGIN
 Ithas been seen that in early English law, adultery, cruelty and
desertion were the only three grounds of divorce. Later on
insanity was added as a ground of divorce. 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. This led to
renaming of the guilt theory as fault theory.
 IMPORTANCE OF FAULT
THEORY
 The offence/fault 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.
The Hindu Marriage Act incorporated the guilt or fault theory, and laid down
that there must be a guilty party and an innocent party, if the petitioner‘s
hands who seeks for divorce are not clean, he cannot seek relief.
But if the scenario is of both spouses being at fault or both spouses
have shown grounds for divorce exist, the court will grant a divorce to
the party who is least at fault under the doctrine of "comparative
rectitude." This is a recent development in the field of law, because
years ago, when both spouses were at fault, neither was entitled to a
divorce.
 GROUNDS FOR DIVORCE
UNDER HINDU MARRIAGE ACT 1955, there are total 9 grounds on which both husband
and wife can ask divorce :
 Cruelty
 Desertion
 Adultery
 Insanity
 Conversion
 Leprosy
 Venereal Disease
 Renunciation
 Presumption of Death
SPECIAL GROUNDS GIVEN
ONLY TO WIFE
 Pre-Act Polygamous Marriage
 Rape, Sodomy and Bestiality
 Non – Resumption of Cohabitation after Decree of
Maintenance
 Repudiation of Marriage
 CASE LAWS
 DARSHAN GUPTA V. RADHIKA GUPTA [(2013) 9 SCC 1]

In this case, Supreme Court held that the petitioner must approach court with
clean hands. Grounds of divorce under Sec 13(1) are based on matrimonial
offence or fault theory. It is only commission of matrimonial offence by one
spouse that entitles the other spouse to seek divorce. Hence, if petitioner
himself/herself is guilty or at fault, he/she would be disentitled to seek divorce.
 IN NAVEEN KOHLI VS. NEELU KOHLI
[(2006) 4 SCC 558]

 A law of divorce based mainly on fault is inadequate to deal

with a broken marriage. Under the fault theory, guilt has to be
proved; divorce courts are presented with concrete instances of
human behaviour as they bring the institution of marriage into
disrepute.
 HARVINDER KAUR VS HARMANDER SINGH
CHOUDHRY ON 15 NOVEMBER, 1983

 After having found fault with the withdrawing spouse and after
giving her time of one year for reparation, the legislature proceeds
to dissolve the marriage because it has utterly broken down. If the
marriage has broken down irretrievably, let there be a divorce." It-
carries no stigma, but only sympathy. It is a misfortune which
befalls both. No longer is one guilty and the other innocent. No
longer are there long contested divorce suits.”