Theories of divorce under hindu law pdf

For this section to apply there are certain requirements which have to be met and fulfilled by both the parties to the divorce which can be stated as follows. If either of the parties is guilty of committing any. Divorce under hindu marriage act and need for unification of divorce laws trisha 3rd year, b. Study of related theories and sections of hindu marriage act, 1955. The grounds on which the divorce is taken are generally categorised into the following theories. The hindu law were bound by the divine laws contained in the smritis, and these were applicableto kings and subjects a. Introduction sometimes, parties to the marriage find their marriage turned out to be a bad bargain. Guilt or fault theoryunder this theory if a spouse commits any of the offence to marriage like adultery, cruelty, rape, desertion etc. Historical background of divorce under the provisions of hindu law before, 1955, except by custom divorce was not recognized in hindu law. Divorce means the dissolution of marriage by a competent court. Political theory, clarenden press, 1977, pp 20, 4447, 61,79. The main reason behind the concept of maintenance is to see that if one of the spouses is not independent financially so the other spouse help himher in order to make the living of another person possible.

Classroom live lectures edited, enlarged and updated. Law, parsi law and the special marriage act, the language is identical. It is not just union for this life but also for coming life as well. Under the uncodified hindu law, divorce was not recognized, unless it was allowed by custom. No fault theory of divorce academike for law students. Hindu law valid, void and voidable marriages under hindu.

Divorce laws in india free legal advice online lawywered. Under section 25 of this act provides for permanent alimony. We have now the codified hindu law in the form of acts and also the uncodified hindu law, and also the. Under muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. What are the grounds of divorce under the hindu marriage act, 1955. It may be mentioned here that in india, for example, hindu couple can divorce as the religious law has been modified by statutory intervention by the indian parliament. Divorce means putting an end to the marriage by dissolution of marital relations. Concept of marriage hindu marriage is sacrament or contract. Manu has declared that a wife cannot be released from her husband either by sale or by abandonment, implying that the. Divorce is not recognised in hindu law unless it is proved as an established custom. Grounds for divorce under the hindu marriage act, 1955. Mutual consent means that both the parties agree for peaceful separation. One of the ways of such dissolution is by way of divorce.

Marriage under all matrimonial laws is the union of a man and a woman which imposes certain marital duties and consequently confers to each of them certain legal rights. The aim of the paper is to make the peruser mindful of the arrangements of divorce under the hindu marriage act, 1955. Grounds for divorce in india areas of law law library. The hindu law of divorce, as codified under the hindu marriage act, 1955, has accommodated three theories namely fault or guilt theory, break down theory. This is because marriage from hindu religious point of view is sacrament. The concept of divorce under muslim law legal service india. The researcher shall discuss upon various theories of divorce which are.

Previously grounds for men seeking div orce were very limited. Concept of marriage in hindu religion marriage is treated as holy bond or union between two souls. Judicial separation and divorce in india as per hindu marriage act. Legal express an international journal of law issn 2394465x vol. The reason for the presence of such a provision under hindu marriage act is the anxiety of the legislature that the tensions and wear and tear of every day life and the. The court, however, is not bound to grant divorce on mere proof of noncohabitation for the 7 air 1998 mp 324 8 1998 aihc, 31 ker. This article discusses the maintenance of wife under hindu and muslim law. There are various theories of divorce on the basis of which most of the grounds of judicial separation and divorce are formulated in section 1 of hindu marriage amendment act,1976. The various theories of significance are illustrated in detail through examples. So, according to the divorce laws in india under section b of the hindu marriage act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court through a divorce lawyer. For the purposes of this phase lets categorize divorce laws concerning the hindus under three separate headings.

According to this theory, a marriage may be dissolved if one spouse committed any matrimonial offence. However in whatever manner the divorce is effected it has not been regarded as a rule of life. Divorce is laid down under sections, b, 14 and 15 of the act. Divorce was thus not recognized unless it was allowed by custom. Download hindumuslim law by abhinav misra pdf online. It has laid down clear provisions regarding divorce under certain circumstances. The phase where divorce was only given under compelling circumstances. The topics are thoroughly described in simple language making it easier for hindumuslim law subject. The secular mindset of the indian judicial system has initiated proclamation of various personal laws based on different religious faiths.

Breakdown and fault theories of divorce under family law. 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. Wherever the laws of india admit operation of a personal law, the rights and obligations of a hindu are determined by hindu law, i. Section 14 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. However painful cohabitation may be, divorce was not accepted by the old law. Hindu law valid, void and voidable marriages under hindu marriage act, 1955. The reason is very simple that a marriage was undissoluble tie between the husband and wife. These include civil death renouncement of the world etc. Hindus, christians and muslims are governed under separate marriage acts and grounds for divorce in india. Though words such as abandonment, supersession and. We have seen catena of cases where the decisions of the court have. Different types of schools under hindu law a detailed distinction there are two major schools of thoughts in hindu law. Mullas principles of hindu law, the learned editor has defined hindu law in the following words. The modern sources of hindu law such as justice, equity and good conscience have been critiqued on the grounds that it paves the way for personal opinions and beliefs of judges to be made into law.

Section of the hindu marriage act enumerates grounds of divorce. Divorce act in 2001expanded divorce rights and made the p rovisions gender equal law co mmission of india 1983. Legal rights of wife in hindu marriage act india legal. It studies the different theories of divorce fault, mutual. Section deals with the circumstances in which the right to divorce accrues. The hindu marriage act is based on the fault theory in which any one of the aggrieved spouses section 1 can approach the court of law and. Llb, institute of law, nirma university introduction. The hindu marriage act, 1955 act 25 of 195518th may, 1955 an act to amend and codify the law relating to marriage among hindus. Divorce and sastric law, divorce and customary law, divorce and hindu marriage act, 1955. Some of the grounds available under the hindu marriage act can be said to be under the theory of frustration by reason of specified circumstances. Theories on which the grounds of divorce are generally. Judicial separation is a sort of a last resort before the actual legal break up of marriage i. Under the uncodified hindu law, divorce was not recognized, unless it was.

It analyses how the concept was nonexistent under ancient law due to the sacramental nature of marriage but was introduced under the hindu marriage act, 1955. Till the codification of hindu law in 1995 and 1956 the hindu women did not enjoy equal rights along with the hindu men. Historical background of divorce under hindu, muslim and. Divorce under hindu law theories introduction prior to the hindu marriage act, 1955 marriage was regarded as indissoluble union of husband and wife. Before 1995 polygamy was prevalent among the hindus.

Grounds for divorce under hindu marriage act 1955 and. Vijay sardana marriage is the voluntary union of one man with one woman to the exclusion of all others, satisfied by the solemnisation of the marriage. The reason was that, a hindu marriage was an indissoluble tie between the husband and the wife1. Divorce structure of the hindu marriage act, 1955 and special. Different types of schools under hindu law a detailed. Under section 18 of the hindu adoption and maintenance act, 1956 a hindu wife is entitled to claim maintenance from her husband in case if he is guilty of cruelty, desertion, polygamy or has a venereal disease, thereby enforcing her rights in divorce. Although the mohammedan law favours the husband only in 4 under the general uncodified hindu law, divorce was not recognized, it was rather unknown to the old textual hindu law of marriage. The law commission of india as well as judiciary demands the inclusion of irretrievable break down as marriage as a special ground for divorce under hindu marriage act,1955, as it is felt that due to the technicalities involved in existing theories of divorce it sometimes. This make it difficult for both of them to pull on together or to live together harmoniously. The hindus believe that their law is of divine origin and to them this is positive law emanated from thedeity. For a thorough knowledge on hindu law one must sit with these great masters.