Marriage & Divorce | Part 3 | Family Law

The blog presents the basic theory of marriage and divorce that forms the introduction of Family Law in India. This can be useful for students preparing for Law and other competitive exams.

Q1. What are the grounds of nullity of marriage in Christians ?

Ans. The Indian Divorce Act, 1869, governs the Christians marriage and divorce. The Act does not distinguish between void and voidable marriage. It only states that marriage may be declared as null and void on following grounds.

  1. on ground of impotency of other spouse at the time of marriage.
  2. if parties are within the prohibited degrees of consanguinity or affinity.
  3. if the former husband or wife of either party was living at the time of marriage.
  4. if either party was idiot or lunatic at the time of marriage.

Q2. What are the grounds of nullity of marriage in Parsis ?

Ans. Parsis do not recognize the distinction between void and voidable. Under the Parsi Marriage and Divorce Act, 1936, declaration as to nullity of the marriage can be obtained in only one situation, where consummation of marriage is impossible due to natural causes.

Q3. What is a divorce ?

Ans. A divorce is the termination of a marital union. It results in the cessation of matrimonial tie between husband and wife. The status of husband and wife ceases after divorce.

Q4. What are the grounds for a divorce ?

Ans. The grounds for a divorce are :

  1. adultery (sexual intercourse outside wedlock)
  2. cruelty,
  3. desertion (when one spouse leaves the other spouse with the intention of never coming back)
  4. insanity of a spouse

Q5. What are the different theories of divorce ?

Ans. The different theories of divorce are:

  1. The guilt or offense theory
  2. The fault theory
  3. Theory of divorce by mutual consent
  4. Theory of ir-retrievable breakdown of marriage

Q6. What is the guilt or offence theory of divorce ?

Ans. Divorce is also regarded as a mode of punishing the guilty party who had rendered him or her unworthy of consortium. This gave rise to the guilt or offence theory of divorce. According to this theory, a marriage can be dissolved only if one of the parties to marriage has, after its solemnization, committed some matrimonial offence.

The offence must be one that is recognized as a ground of divorce. The guilt theory on the one hand implies that there is a guilty party, i.e. a party who has committed matrimonial offence and on the other an innocent party who is a victim.

Q7. What is the fault theory of divorce ?

Ans. When insanity was added as one of the grounds for divorce, the guilt or offence theory was renamed as a fault theory. This was because an insane person can hardly be considered to be conscious about the offence he has committed and hence cannot be held as guilty. This led to renaming the guilt theory as the fault theory.
The fault theory states, if one of the parties has some fault in him or her, marriage could be dissolved, whether that fault is his or her conscious act or providential.

Q8. What is the theory of divorce by mutual consent ?

Ans. The theory of divorce by mutual consent, originates due to the loopholes in the fault theory of divorce. The biggest drawback of the fault theory has been the presumption that there is one innocent party and one guilty party. However, sometimes the husband and wife are not able to live together and there is no fault of either of them. In that case both of them are left with no remedy. Thus, a new theory had to be evolved where marriage could be dissolved by mutual consent of both the husband and the wife where they are not able to live together.
Divorce by mutual consent means that the law recognizes the situation where parties can also obtain divorce by mutual consent. However, mutual consent alone will not automatically terminate the relationship, it is essential to obtain a decree of the court.

For example, under the Hindu Marriage Act, 1955, parties must live separately for a period of one year or more before filing a joint petition. Then, after filing of petition, there will be a cooling off period for six months during which the court will not examine the petition. Thereafter, the parties have to file a joint motion to initiate the divorce proceedings.

Q9. How does divorce by mutual consent take place in Muslim Law ?

Ans. The concept of divorce by mutual consent is recognized under Muslim law in the form of Khula (redemption) and Mubarat (mutual release).
In Mubarat, both the parties mutually decide to release each other from marital bond.
In Khula, offer is from the wife’s side and she has to pay consideration (voluntarily giving away something of monetary value in exchange for a promise) to the husband in lieu of acceptance.

Q10. What is the theory of ir-retrievable breakdown of marriage ?

Ans. Divorce by mutual consent requires the consent of both the parties, and if one party withholds his or her consent, divorce can never be obtained. Therefore, there arose a necessity for another ground that resulted in the theory of ir-retrievable breakdown of marriage.
The basic postulate of the “breakdown theory” is that, if a marriage has broken down without possibility of repair (or irretrievably) then it should be dissolved without looking at the fault of either of the party.

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