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Guilt theory of divorce

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.

Question from: Uttar Pradesh

Guilt theory of divorce is one of the approaches which is taken into consideration by the court in deciding divorce cases under Hindu Marriage Act. According to this theory, a marriage may be dissolved if one spouse committed any matrimonial offence. Section 13 of the Hindu Marriage Act enumerates grounds of divorce. This section is based upon “guilt theory” or commonly known as “fault theory”.

This guilt theory of divorce differentiates the parties on the ground of guilt and innocence. Innocent party has the right to get the divorce on the ground that another party has committed a matrimonial offence or a guilty party. Hence, a party seeking a divorce, it must be innocent.

This theory was taken very far in English law, so much so that if both the parties independent of each other, committed matrimonial offence, the marriage could not be dissolved. So 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. Some grounds of divorce is based on the guilt of the respondent. 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, it is immaterial that petitioner has proved his case beyond all doubts.

Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 the Supreme Court has opined that 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.

Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1; The Supreme Court reiterated that A perusal of the grounds on which divorce can be sought under Section 13(1) of the Hindu Marriage Act, 1955, would reveal that the same are grounds 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”.

Further said that under this jurisprudential principle, it is only on the ground of an opponent’s fault, that a party may 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.

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