About this topic
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Divorce law rests on three theories: the fault theory, the consent theory and the theory of irretrievable breakdown of marriage. Each theory asks a different question before a marriage is dissolved, and Indian law has moved step by step from the first towards the third.
The three theories can be pictured as three papers on a judge's desk.
| Paper on the judge's desk | What it says | Theory |
|---|---|---|
| A complaint | "My spouse has wronged me." | Fault theory |
| A joint application | "We both agree to part." | Consent theory |
| A doctor's report | "This marriage has no life left, whatever the cause." | Irretrievable breakdown of marriage |
The topic is illustrated by Naveen Kohli v. Neelu Kohli (2006), where the Supreme Court dealt with a couple who had lived apart for almost twelve years while one spouse filed complaint after complaint against the other. One court had ended their marriage and a higher court had undone that decree.
Fault theory (matrimonial offence theory)
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The fault theory, also called the matrimonial offence theory, is the traditional basis of divorce law.
- Divorce is a remedy for a wrong.
- Only an innocent spouse may seek it.
- The question before the judge is: who is to blame?
Fault theory = divorce as a remedy for a matrimonial wrong, available only to the innocent spouse. The court's question: who is to blame?
Fault grounds under Section 13(1), Hindu Marriage Act, 1955
The three classic fault grounds in Section 13(1) of the Hindu Marriage Act, 1955 show the fault theory at work. A spouse may seek divorce if the other spouse has:
- after the marriage, had voluntary sexual intercourse with any person other than his or her spouse;
- treated the petitioner with cruelty; or
- deserted the petitioner for a continuous period of not less than two years immediately before the petition.
No advantage from one's own wrong: Section 23(1)(a)
Because the remedy belongs to the innocent spouse, Section 23(1)(a) requires the court to be satisfied that the petitioner "is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief". This requirement does not apply to certain nullity cases based on mental incapacity.
A husband throws his wife out of the home. He cannot later claim that she deserted him, because she left with reasonable cause. He would be taking advantage of his own wrong.
Criticism of the fault theory
Think of road accidents. Sometimes one driver is careless, sometimes both are, and sometimes nobody is, because the road caved in. A rule that only punishes careless drivers fails the last two cases.
In the same way, the fault theory:
- fails couples who share the blame;
- fails couples where nobody is to blame; and
- breeds bitterness between the spouses.
As the Supreme Court has recognised, "the law of divorce built predominantly on assigning fault fails to serve broken marriages".
Consent theory (divorce by mutual consent)
The consent theory fills the gap left by the fault theory. If two free adults genuinely agree that their marriage is over, nobody needs to be branded guilty.
Zoya and Farhan have been married for nine years. There is no violence, no affair and no desertion; they are simply two polite strangers sharing a flat. The consent theory lets them leave the marriage together, with dignity.
Mutual consent under Section 13B, Hindu Marriage Act
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In India this route runs on two clocks: one before filing and one after.
Section 13B was added to the Hindu Marriage Act in 1976. Under it, both spouses together petition the district court (the first motion) on the ground "that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved".
The petition must therefore show three things:
- the spouses have been living separately for one year or more;
- they have not been able to live together; and
- they have mutually agreed that the marriage should be dissolved.
"Living separately" means not living as husband and wife. Spouses can be living separately even under one roof.
The second motion and consent
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The second clock is a cooling-off period. Not earlier than six months and not later than eighteen months after the petition is presented, if it has not been withdrawn in the meantime, both parties move the court again (the second motion).
After hearing the parties and making such inquiry as it thinks fit, the court, once satisfied that:
- the marriage was solemnised, and
- the statements in the petition are true,
passes a decree of divorce. The marriage is dissolved from the date of the decree.
| Clock | Stage | Requirement under Section 13B |
|---|---|---|
| First clock | Before filing | Living separately for one year or more |
| Second clock | After filing | Cooling-off period: second motion not earlier than 6 months and not later than 18 months after presentation |
Three further rules
- Free consent: under Section 23(1)(bb), the court must be satisfied that "such consent has not been obtained by force, fraud or undue influence".
- Continuing consent: consent must continue until the decree, so either spouse may withdraw it before the decree is passed.
- Six-month period is directory: the Supreme Court has held the six-month period to be directory, not mandatory. A court may waive it in a fit case, for example where the couple has genuinely settled every issue and waiting would only prolong their agony.
Exam favourite: the six-month cooling-off period under Section 13B is directory, not mandatory, and can be waived in a fit case. Consent must be free (Section 23(1)(bb)) and must last until the decree.
Mutual consent under other marriage laws
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Other personal and secular laws reset the same two clocks.
| Law | Provision | Separation before filing | Second clock | Special points |
|---|---|---|---|---|
| Hindu Marriage Act, 1955 | Section 13B (added 1976) | One year or more | 6 to 18 months | Consent must be free (Section 23(1)(bb)) |
| Special Marriage Act, 1954 | Section 28 | One year | 6 to 18 months | Open to couples of any religion |
| Divorce Act, 1869 (Christians) | Section 10A | Two years | Same 6 to 18 month window | The Kerala High Court has struck down this minimum separation period within its jurisdiction |
| Parsi Marriage and Divorce Act, 1936 | Section 32B | One year apart | None | No suit may be filed within a year of the marriage; consent must not be obtained by force or fraud |
Muslim law: mubarat and khula
Muslim law is largely uncodified, but it reaches a similar result through tradition.
| Point | Mubarat | Khula |
|---|---|---|
| Who wants the separation | Both spouses | The wife seeks release |
| Who proposes | Either spouse may propose it | The wife |
| Consideration | — | Usually the wife gives up her dower |
| Husband's consent | Both spouses want it | Traditionally needed the husband's acceptance; the Kerala and Telangana High Courts have held his consent unnecessary |
On khula, the Supreme Court is now examining the question whether the husband's consent is required.
Limitation of the consent theory
A joint application needs two signatures. One spouse's refusal, perhaps out of revenge, keeps a dead marriage alive on paper.
Consent gives each spouse a veto. Breaking that deadlock needs the third theory: irretrievable breakdown of marriage.
Irretrievable breakdown of marriage
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The breakdown theory does not ask who caused the damage, only whether any life is left in the marriage. If none is, the law should say so and let both people move on.
- The Law Commission of India, 71st Report (1978) called such a marriage a shell out of which the substance is gone, and recommended making breakdown a ground for divorce.
- Parliament never enacted that recommendation. Irretrievable breakdown is therefore still not a ground under the Hindu Marriage Act.
Section 13(1A): the spirit of breakdown
Section 13(1A) of the Hindu Marriage Act carries the spirit of the breakdown theory. Either party to the marriage may seek divorce if, for one year or upwards after a decree for judicial separation or for restitution of conjugal rights, passed in a proceeding to which they were parties:
- there has been no resumption of cohabitation, or
- there has been no restitution of conjugal rights.
Because the word used is "either", even the spouse who lost the earlier case may use Section 13(1A). Here the law is no longer hunting for a culprit.
Naveen Kohli v. Neelu Kohli (2006)
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Naveen Kohli v. Neelu Kohli (2006): the couple married in 1975 and the husband moved out in 1994. The wife then filed complaints of cheating, forgery, theft, hurt and cruelty against him, opposed his bail, and published a newspaper notice describing him as a former manager of her firm.
The Family Court at Kanpur found cruelty and dissolved the marriage. The Allahabad High Court reversed it, holding that the husband himself had been living with another woman. This was fault-theory thinking: find the culprit, refuse relief.
Held (21 March 2006): the Supreme Court restored the divorce. It found mental cruelty, noted over ten years of separation, and observed that even then the wife refused a divorce by mutual consent. The marriage had broken down irretrievably. Relying on the Law Commission's report, the Court accepted that such a marriage "becomes a fiction, though supported by a legal tie", and that refusing to sever it "shows scant regard for the feelings and emotions of the parties". It recommended that the Union of India seriously consider making irretrievable breakdown a ground for divorce under the Hindu Marriage Act.
Principle: a marriage that has broken down irretrievably is a fiction kept alive only by the legal tie; the court should ask whether the marriage is still alive, not only who is to blame.
In Naveen Kohli, the High Court read only the complaint (fault); the Supreme Court also read the doctor's report (breakdown).
Shilpa Sailesh v. Varun Sreenivasan and Article 142
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Parliament has not acted on the breakdown recommendation, but the Supreme Court has opened a narrow door.
Shilpa Sailesh v. Varun Sreenivasan (2023): decided on 1 May 2023 by a five-judge Constitution Bench. Held: the Supreme Court may dissolve a marriage on the ground of irretrievable breakdown, even over one spouse's objection, under Article 142(1), which lets it "pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it". Principle: this relief is "not a matter of right, but a discretion which is to be exercised with great care and caution".
Factors the Court weighs include:
- the length of separation (six years or more is relevant);
- attempts at settlement; and
- provision for the spouse and children.
Limits on this power:
- No one may seek this divorce by writ petition.
- A Family Court lacks this power and cannot grant divorce on breakdown alone.
Irretrievable breakdown is not a statutory ground under the Hindu Marriage Act. Only the Supreme Court can dissolve a marriage on breakdown alone, using Article 142(1), as a matter of discretion and not of right.
The three theories compared
| Point | Fault theory | Consent theory | Irretrievable breakdown |
|---|---|---|---|
| Paper on the desk | Complaint | Joint application | Doctor's report |
| Question asked | Who is to blame? | Do both spouses agree? | Is the marriage still alive? |
| Who may seek divorce | Only the innocent spouse | Both spouses together | Either party under Section 13(1A); the Supreme Court under Article 142(1) |
| Indian law | Section 13(1), Section 23(1)(a), Hindu Marriage Act | Section 13B, Hindu Marriage Act; Section 28, Special Marriage Act; Section 10A, Divorce Act; Section 32B, Parsi Marriage and Divorce Act; mubarat and khula | Not a statutory ground; spirit in Section 13(1A); Naveen Kohli; Shilpa Sailesh |
| Weakness | Fails couples who share the blame or have none; breeds bitterness | Gives each spouse a veto | Never enacted by Parliament |
Quick revision
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- The complaint (fault theory) asks who is guilty.
- The joint application (consent theory) asks whether both spouses agree.
- The doctor's report (irretrievable breakdown) asks whether the marriage is still alive.
- The movement of divorce law: from blame, to agreement, to reality.
