Fault Theory

INTRODUCTION 

The Hindu Marriage Act, 1955 has introduced vital and dynamic changes in the Hindu Law of marriage and divorce. It has laid down clear provisions regarding divorce under certain circumstances. Divorce is laid down under Sections 13, 13(B), 14 and 15 of the Act. Section 13 deals with the circumstances in which the right right to divorce accrues. Section 14 limits limits the right to obtain divorce under certain conditions and Sec 15 lays down the limitations on the right of divorced persons to marry again.

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There are various theories of divorce on the basis of which most of the grounds of judicial separation and divorce are formulated in Section 13(1) of Hindu Marriage Ma rriage Amendment Act,1976.

 MEANING OF DIVORCE  

Divorce is the termination of a marriage or marital union, the cancelling or reorganizing of the legal duties and responsibilities of marriage,

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Divorce is also known as dissolution of marriage,

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Divorce is dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state.

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Divorce laws vary considerably around the world, but in most countries divorce requires the sanction of a court or other authority in a legal process.

FAULT THEORY  A fault divorce is usually chosen by a spouse who wishes to be vindicated by  proving the other's fault.

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According to this theory, the spouse can seek divorce from the other spouse if he or she is found in fault of committing a matrimonial offence.

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There is the presence of personal injury to the matrimonial relations of the spouses.

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This theory implies, one party is guilty and the other party is innocent.

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Only the innocent party can seek the remedy of divorce under this theory.

ORIGIN  It

has been seen that in early English law, adultery, cruelty and desertion were the only three grounds of divorce. Later on insanity was added as a ground of divorce. Insanity did not fit in within the framework of guilt or matrimonial offence theory, as the party suffering from insanity could hardly be called a guilty  party. It is a misfortune rather than misconduct. This led to renaming of the guilt theory as fault theory.

IMPORTANCE OF FAULT  THEORY  

The offence/fault theory stipulates for two things:

(i) a guilty party, i.e., the party who has committed one of the specified matrimonial offences, and (ii) an innocent party, who has been outraged and who has played no role in the criminality or the matrimonial offence of the other party. The Hindu Marriage Act incorporated the guilt or fault theory, and laid down that there must be a guilty party and an innocent party, if the petitioner‘s hands who seeks for divorce are not clean, he cannot seek relief .

But if the scenario is of both spouses being at fault or both spouses have shown grounds for divorce exist, the court will grant a divorce to the party who is least at fault under the doctrine of "comparative rectitude." This is a recent development in the field of law, because years ago, when both spouses were at fault, neither was entitled to a divorce.

GROUNDS FOR DIVORCE  UNDER HINDU MARRIAGE ACT 1955, there are total 9 grounds on which both husband and wife can ask divorce : 

Cruelty

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Desertion

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Adultery

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Insanity

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Conversion

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Leprosy

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Venereal Disease

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Renunciation

 SPECIAL GROUNDS GIVEN ONLY TO WIFE  

Pre-Act Polygamous Marriage

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Rape, Sodomy and Bestiality

 Non – Resumption

of Cohabitation after Decree of

Maintenance 

Repudiation of Marriage

CASE LAWS  DARSHAN

GUPTA V. RADHIKA GUPTA [(2013) 9 SCC 1]

In this case, Supreme Court held that the petitioner must approach court with clean hands. Grounds of divorce under Sec 13(1) are based on matrimonial offence or fault theory. It is only commission of matrimonial offence by one spouse that entitles the other spouse to seek divorce. Hence, if petitioner himself/herself is guilty or at fault, he/she would be disentitled to seek divorce.

IN NAVEEN KOHLI VS. NEELU KOHLI [(2006) 4 SCC 558] A

law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be  proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute.

HARVINDER KAUR VS HARMANDER SINGH CHOUDHRY ON 15 NOVEMBER, 1983 

After having found fault with the withdrawing spouse and after giving her time of one year for reparation, the legislature proceeds to dissolve the marriage because it has utterly broken down. If the marriage has broken down irretrievably, let there be a divorce." Itcarries no stigma, but only sympathy. It is a misfortune which  befalls both. No longer is one guilty and the other innocent. No longer are there long contested divorce suits.”