DIVORCE (FAULT OR GUILT THEORY)

Discuss the concept of divorce on guilt based theory under the Hindu law and explain the conditions to take a divorce on the ground of Adultery under Hindu Marriage Act, 1955.
Or
If one of the spouses does not want to live with another spouse because the latter spouse is living in Adultery. Then, whether the former spouse can get the decree of Divorce on the ground of Adultery and if yes, then under which section of Hindu Marriage Act, 1955. Explain.

In Hindu religion, it is believed that Marriage is a sacrament and it is a permanent and indissoluble union. It unites the parties for “n” number of years and it cannot be dissolved. The concept of divorce was alien to Hindu Religion.

But, the concept of divorce was introduced in the year 1955 when the Government enacted the Hindu Marriage Act, 1955. The aim of government was not to change the basic nature of marriage but to protect the basic fundamental rights of both the parties. Marriage does not take away the fundamental rights of parties because these are absolute rights and cannot be waived off and it is duty of each spouse to give respect to the fundamental rights of another spouse.

  

If any of the spouse does not give the respect to the basic rights of another spouse and if because of the violation of fundamental rights, it becomes difficult for a party to live with another party, then the aggrieved party can take the divorce just to protect his fundamental rights.

Section 13 of Hindu Marriage Act, 1955 deals with the provisions of Divorce. This section is based upon the “Guilt” or “Fault” theory. According to this theory, if one of the parties has some fault in him or her, then marriage could be dissolved. According to this theory, Divorce is regarded as mode of punishing the guilty party who has rendered himself or herself unworthy of consortium.

But, a marriage can be dissolved only if one of the spouse committed any matrimonial offence. According to this theory, one party will be guilty party and another one will be an innocent party and if innocent party condones the act of guilty party then in such a case divorce will not be granted. On the bases of this theory, Section 13 of Hindu Marriage Act, 1955 has laid down some grounds of divorce and out of them, Adultery is one of the main ground.

  

According to section 13(1)(i) of Hindu Marriage Act, 1955, if one of the spouses lives in adultery and commits sexual intercourse with the person of opposite sex who is not the spouse, then that spouse will be considered guilty for committing matrimonial offence and another spouse has right to take the divorce and get the marriage dissolved. For taking a divorce on the ground of adultery, it is not necessary for the aggrieved spouse to prove the continuous acts of sexual intercourse. One single act of sexual intercourse is enough to take the decree of divorce.

According to this section, a mere attempt to sexual intercourse will not amount to adultery. For adultery, sexual intercourse is necessary.

In a leading case of Oxford vs. Oxford[(1921) 58 CLR], The Apex court held that, “a wife who allows her to be artificially with semen provided by a person other than her husband is not guilty of Adultery.”
According to this section, the act of adultery must be voluntarily and without the permission of another spouse. If, any of the spouse commits sexual intercourse with stranger because of intoxication, that will not amount to adultery.

Moreover, every act of adultery is committed in secrecy and it is very difficult for an aggrieved spouse to prove it by direct evidences. That is why, it can be proved by circumstantial evidences. It is not necessary for a party to prove it beyond reasonable doubts. The establishment of “preponderance of probability” is enough.

In a leading case of White vs. White (AIR 1958 SC 441), The Supreme Court held that, “Circumstantial evidences must satisfy that the act of adultery has been committed.”
Hence, it can be said that if any spouse is living in adultery then another spouse under section 13 of Hindu Marriage Act, 1955 can take a divorce on the ground of Adultery.

  

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