Legal Advice

Guilt theory of divorce

Question: I want to know the guilt theory of divorce. My wife and I are want to take divorce through our free will. There is no dispute between us but we think that our views are different. When I contacted an advocate for divorce on the free consent of the parties. But he said that without proving the guilt of opposite party we could not get a divorce.

Advise

The concept of guilt theory of divorce is one of the approaches which is considered by the court while deciding divorce cases under the Hindu Marriage Act. According to this theory, a marriage may be dissolved if one spouse has committed any matrimonial offence. The grounds for divorce are enumerated in Section 13 of the Hindu Marriage Act, which is based upon the “guilt theory” or commonly known as the “fault theory”.

Under the guilt theory of divorce, parties are differentiated on the grounds of guilt and innocence. The innocent party has the right to get a divorce on the ground that the other party has committed a matrimonial offence or is guilty. Therefore, if a party is seeking a divorce, they must be innocent.

In the English law, this theory was taken to an extent where if both the parties, independent of each other, committed a matrimonial offence, the marriage could not be dissolved. Therefore, when both parties are guilty, then divorce could not be granted, there must be one guilty party and one innocent party.

Section 13 of the Hindu Marriage Act is based on the guilt theory, where some grounds for divorce are based on the guilt of the respondent. However, Section 23 of the Hindu Marriage Act laid down that the petitioner will not be allowed to take advantage of his or her wrong or disability in the divorce petition.

If the guilt of the respondent is the direct or indirect outcome of some wrong or disability of the petitioner, then the petitioner will not be entitled to get matrimonial relief or divorce, even if they have proved their case beyond all doubts.

In the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Supreme Court opined that the law of divorce based mainly on the fault is inadequate to deal with a broken marriage. However, under the fault theory or guilt theory, as accepted under Section 13 of the Hindu Marriage Act, guilt has to be proved for divorce.

In Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1, the Supreme Court reiterated that the grounds on which divorce can be sought under Section 13(1) of the Hindu Marriage Act are based on the “fault” of the party against whom dissolution of marriage is sought. In matrimonial jurisprudence, such provisions are founded on the “matrimonial offence theory” or the “fault theory”.

Furthermore, it was highlighted that under this jurisprudential principle, only on the ground of an opponent’s fault, can a party approach a court for seeking annulment of his/her matrimonial alliance. In other words, if either of the parties is guilty of committing a matrimonial offence, the aggrieved party alone is entitled to a divorce.

Although the guilt theory of divorce has been criticized for being outdated, it still holds its place in the Indian legal system. The concept of fault theory or guilt theory has been a significant approach in deciding divorce cases in the Hindu Marriage Act, which has evolved with time and practice.

Shivendra Pratap Singh

Advocate

High Court Lucknow