Legal Advice

Consent theory of divorce

Question: 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?

Advise

The principle of the “Consent theory” of divorce is that spouses should have the right to dissolve their marriage by mutual consent. As socio-economic conditions have advanced, spouses have become more self-reliant and independent and may choose to separate rather than stay in an unhappy marriage.

This theory contradicts the “guilt theory” of divorce, where one spouse must prove the guilt of the other before obtaining a divorce. Section 13 of the Hindu Marriage Act provides grounds for divorce, most of which are based on the guilt theory.

However, the Hindu Marriage Act also requires free consent from both parties for a valid marriage under Section 5. Therefore, if marriage is a contract based on the free volition of both parties, they should also have equal freedom to dissolve it. To reflect this, the Act was amended in 1976 to include a new provision, Section 13 B, which allows for divorce by mutual consent.

Mutual fidelity is the foundation of marriage, and if for any reason parties feel that they cannot maintain this fidelity, they should have the freedom to dissolve their marriage. Critics argue that the consent theory will lead to chaos and hasty divorces, but this is not necessarily true. If parties agree that they cannot continue living together and it is better to end their marriage, the law should provide them with the opportunity to start anew.

Ultimately, the consent theory of divorce corrects an error made by both parties when they realize they cannot live together and their marriage has become a bad deal.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Divorce Cases | Family Law

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