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Consent theory of divorce

By Shivendra Pratap Singh

I want the divorce, therefore, I contacted an advocate to file a case under section 13 of the Hindu Marriage Act. He advised me that if my wife is ready to give divorce then I should move a petition under section 13b. However my wife is also ready to separate from me, but I want to know what is the importance of consent in divorce.

My advocate told me that if I file a petition under section 13 then I have to prove the guilt of my wife. Sir, What is the consent theory of divorce?

Question from: Delhi

The “Consent theory” of divorce is based upon the principle that the spouse must have a right to dissolve their marriage by mutual consent. With the advancement in socio-economic condition, the spouse became self-reliant and independent. They are prepared to live separately rather than stay united while unhappy with their marriage.

The consent theory stands against the concept of guilt theory of divorce. Because if marriage is a contract based upon the free volition of the parties, the parties should have equal freedom to dissolve it.

Section 13 of the Hindu Marriage Act provides several grounds of divorce. Most of the grounds founded on fault or guilt theory of divorce. Under the guilt theory, the spouse cannot get a divorce unless it proves the guilt of another party.

However, marriage is a sacramental ceremony in Hindu, but at the same time Section 5 of the Hindu Marriage Act requires free consent of the parties for a valid marriage. When consent of parties is mandatory for a valid marriage; hence, parties should have a right to end their marriage by their free consent. Therefore, our legislation amended the Hindu Marriage Act in 1976 and inserted a new section as 13 B which provides Divorce by mutual consent of the parties.

Consent of parties

The very basis of marriage is mutual fidelity, and if for any reason the parties feel that mutual loyalty cannot continue further then they should have the freedom to dissolve their marriage. The main criticism of the consent theory of divorce is that it will bring about chaos and will lead to hasty divorce.

However, it is not true because when parties to the marriage feel that they cannot live together and it is better to end this nuptial knot, then the law should provide them with a chance to restart their life with new vigour. It is just like correction of an error made by both parties to the marriage when they realise that they can not live together and their marriage has turned out to be a lousy bargain.

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