Guilt theory of divorce
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 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.
Ask A Question
You can ask your question to Mr Shivendra Pratap Singh, (Advocate, High Court Allahabad, Lucknow Bench)
Talk to Advocate
Talk to advocate on phone for 30 minutes and get solid legal advice
I am living separately because my husband has left me. One year has gone, but my husband doesn't want to give alimony or bear my expenses. He is using my ATM also for his purpose as well as demanding dowry from me. What could I do? Question from - Criminal Law |...
One of my cases has settled under an agreement of paying rs. 8500/month and educational expenses of the child, which I am paying every month without any due. This year also, I have paid for books and uniform materials. However, now, the wife is asking to pay for the...
I am a widow as well a senior citizen of India. I want to know about the maintenance rights of my son. What is my maintenance rights as per the Indian law? Question from - Maintenance | Section 125 CrPCIndia is the home of more than 81 million senior citizens. It is...
I am a destitute lady; my husband died in the year 2000. My stepson is refusing to maintain me, and I have no child. Can I claim maintenance from my stepson?Question from - Maintenance | Section 125 CrPCIf the mother is living under destitution, she is entitled to...
Get A Quick Advice
Book an appointment for 15 minutes and consult with an expert over the phone within minutes
Join Our Newsletter
Subscribe our newsletter to get our news as well as important legal updates of Supreme Court & High Courts