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PAPER PRESENTATION ON THE TOPIC

“DIVORCE UNDER FAULT AND NO FAULT THEORY”
- Presented by Sri. N. Santosh Kumar,
Senior Civil Judge, Nirmal.

(Paper presentation before the District Level Workshop for Judicial Officers)

INTRODUCTION :

In literal sense, "divorce" means a legal separation of two persons of the

opposite sex who desire to respect and honour each other. Earlier the marriage under Hindu
Dharma Shastra was considered a sacred bond and did not provide for divorce, until it was
codified in the year 1955. The Hindu Marriage Act, 1955 which came into existence, eight
years after the independence of the India, under section 13 provided with the grounds on
which the parties can seek a decree of divorce from a competent court having jurisdiction to
entertain such petition.

In early Roman law, marriage and divorce were essentially private acts of
parties. Whenever two persons wanted to marry they could do so; and whenever they wanted
to put their marriage as under they were equally free to do so. No formalities or intervention
of an agency was necessary for either. In England before 1857, a marriage could be
dissolved only by an Act of Parliament. After a considerable pressure, divorce was
recognized under the Matrimonial Causes Act, 1857, but only on one ground i.e. adultery.
This continues to be position in India in respect of the Christian marriage. Later on insanity
was added as a ground of divorce.

The inevitable consequence of this philosophy was that marriage came to be

regarded as a special contract which cannot be put to an end like an ordinary contract. A
marriage can be dissolved only if one of the spouses is found guilty of such an act and
conduct which undermined the very foundation of marriage. This led to the emergence of the
offence or guilt theory of divorce. Marriage as an eternal union was not altogether immune
to rejection. However, earlier there was no systematic code to regulate divorce in specific.

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 and
‘Consent’ theory. Under the fault theory, marriage can be dissolved only when either party
to the marriage had committed any matrimonial offence. Under this theory, it is necessary to
have a guilty and an innocent party; and only the innocent party can seek the remedy of
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divorce. Whereas under the no-fault theory, the spouse asking for a divorce does not have
to prove that the other spouse did something wrong or any matrimonial offence. All states
allow no fault divorces. To get a no fault divorce, one spouse must simply state a reason for
the divorce that is recognized by the Law.

FAULT THEORY OF DIVORCE :

As it is said that under the fault theory of Divorce, marriage can be dissolved
only when either party to the marriage had committed any matrimonial offence. Under this
theory, it is necessary that one spouse has commits a matrimonial guilt, whereas the other
spouse is absolutely an innocent party. In this theory, the innocent spouse is considered to be
as a victim and the innocent spouse is given liberty to severe the marital tie by exercising the
right of divorce against other spouse who is at fault by committing a matrimonial guilt.
However the most striking feature and drawback of this theory is that if both parties have
been at fault, there is no remedy available under this fault theory.

On the basis of fault theory of divorce, most of the grounds of judicial

separation and divorce are formulated in section 13(1) of the Hindu Marriage Amendment
Act, 1976. The Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment)
Act, 1976 lays down nine grounds viz. adultery, cruelty, desertion, conversion to a non-
Hindu religion, incurable insanity or mental disorder, virulent and incurable leprosy,
venereal disease in communicable form, taking to sanyasa (i.e. renunciation of world by
entering into a holy order) and presumption of death; and four additional grounds on which
wife alone can sue for divorce.

The Special Marriage Act, 1954 as amended by the Marriage Laws

(Amendment) Act, 1976 recognizes eight grounds based on guilt on which either party may
seek divorce and two additional grounds on which wife alone may seek divorce, viz. rape,
sodomy or bestiality of the husband. The eight grounds are: adultery, desertion for at least
three years, respondent undergoing a sentence of imprisonment for seven years or more for
an offence under the Indian Penal Code, 1860, cruelty, venereal disease in a communicable
form, leprosy (only if the disease was not contracted by the respondent from the petitioner),
incurable insanity or continuous or intermittent mental disorder of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the respondent, and
presumption of death (respondent not been heard of as alive for a period of seven years or
more).
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When the Hindu Marriage Act was passed in 1955, it was widely regarded as a
legislation bringing about a radical change in the institution of marriage because section
13(1) of the Act introduced, for the first time, the matrimonial remedy of divorce by
providing that either party can apply for divorce if the other party (i) has, after the
solemnization of marriage, had extra marital sexual relationship or (ii) has converted to
another religion or (iii) has been suffering from unsoundness of mind or (iv) has been
suffering from incurable form of leprosy or (v) has been suffering from Venereal disease in a
communicable form or (vi) has not been heard of for seven years or (vii) has renounced the
world or (viii) has not resumed cohabitation for a period of 2 years or upwards in spite of
getting the decree of judicial separation against him or her or (ix) has failed to comply with
the decree of Restitution of conjugal rights for a period of two years or upwards. These
grounds are commonly called as ‘fault or guilt grounds’ as the fault or guilt of one party
enables the other party to get the relief of divorce. They are considered as ‘offences against
marriage’. In spite of a common tag, it is to be noted that grounds (iii) to (vi) cannot be
treated as matrimonial guilt because they are the supervening circumstances beyond the
control of the party, but still having the potential to frustrate the marital relationship. Hence
they were rightly symbolized as grounds of ‘frustration’ for divorce by the Law Commission
of India. Nevertheless they are popularly recognized as grounds of guilt only. Cruelty and
desertion, which were the grounds for judicial separation under the original Act were later on
added as grounds under Section 13 (1) (i-a) and (i-b) for divorce by bringing an amendment
in 1976. Besides these eleven grounds, Section 13(2) of the original Act provides for four
more special grounds for wife as additional grounds namely (i) Bigamy of her husband
committed prior to coming into force of the Hindu Marriage Act 1955, (ii) her husband being
guilty of rape, sodomy or other unnatural sexual offences, (iii) her marriage having taken
place prior to her 15 years of age and she had repudiated it before attaining 18 years; and (iv)
she is a maintenance holder for a period of not less than one year under either Section 125 of
Cr. P. C. or Section 18(2) of Hindu Adoptions and Maintenance Act, 1956.

Now let us examine the important grounds of divorce under different

legislation concerning the fault theory :

ADULTERY : It means whether the other party has, after the solemnization of the marriage
had voluntary sexual intercourse with any person other than his or her spouse. Adultery is a
ground of divorce under the Hindu Marriage Act, 1955, Special Marriage Act, 1954, Divorce
Act, 1869 (Previously Indian Divorce Act, 1869) and the Parsi Marriage and Divorce Act,
1936. Under the Dissolution of Muslim Marriages Act, 1939 adultery as such is not a
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ground of divorce, but husband's association with women of evil repute or his leading an
infamous life is a gound of divorce, though it is considered to cruelty under the Act - it is
something akin to living in adultery. The wording of the clause in different matrimonial
statutes is somewhat different, but basically they have the same meaning. Under the Hindu
Marriage Act, 1955 and the Special Marriage Act, 1954 the clause is worded as "respondent
has, after the solemnization of marriage, had voluntary sexual intercourse with any person
other than his or her spouse". Under the Parsi Marriage and Divorce Act, 1936 the language
of the clause is different: defendant has committed adultery, but under Parsi Law, divorce
will not be granted on the ground if the suit for divorce has been filed more than two years
after the plaintiff came to know of the fact, while under the Divorce Act, 1869 the clause
runs: the other party, since the solemnization of the marriage the respondent has committed
adultery.

DESERTION : The courts have consistently refused to define 'desertion' both in England
and India. Earlier English Court adopted a restrictive view of desertion apprehending that
too wide a definition would lead to divorce by mutual consent. But later on the attitude of
the courts became liberal. Under the Hindu Marriage act, 1955 and Special Marriage Act,
1954, "desertion" means the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish of such party, and
include wilful neglect of the petitioner by the other party to the marriage, and its grammatical
variations and cognate expressions shall be construed accordingly. In short, desertion means
the rejection by one party of all the obligations of marriage.

Under most of the Indian statutes, desertion is a ground for divorce or judicial
separation or for both. The Special Marriage Act, 1954 and the Hindu Marriage Act, 1955
contain an identical provision, and desertion is a ground for both desertion of marriage and
judicial separation. Under the Indian Divorce Act, 1869 desertion as such is not a ground of
divorce for either spouse. But in case of wife's petition for divorce, husband's desertion for a
continuous period of two years coupled with his adultery is a ground for divorce. However,
two years' desertion without reasonable cause is a ground for judicial separation for either
spouse.

Desertion in the context of matrimonial law represents a legal conception. It is

difficult to give a comprehensive definition of the term. The essential ingredients of this
offence in order that it may furnish a ground for relief are:
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i) the factum of separation;

ii) the intention to bring cohabitation permanently to an end -
animus deserdendi ;
iii) the element of permanence which is a prime condition which requires
that both these essential ingredients should continue during the entire statutory
period.
From the Explanation to section 13(1) (ib) of the Hindu Marriage Act, 1955 it
is clear that the legislature intended to give to the expression a wide import which includes
wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence
of desertion, so far as the deserting spouse is concerned, two essential conditions must be
there, namely, (1) the factum of separation; and (2) the intention to bring cohabitation
permanently to an end (animus deserdendi). Similarly, two elements are essential so far as
the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving the matrimonial home to form the necessary
intention aforesaid.

Under the Parsi Marriage and Divorce Act, 1936 two years of desertion is a
ground for divorce as well as judicial separation. Section 2(iv) of the Dissolution of Muslim
Marriage Act, 1939 does not recognize desertion as such as a ground of divorce. But a
Muslim wife can sue her husband for dissolution of marriage if "the husband has failed to
perform without reasonable clause his marital obligation for a period of three years". Further
clause (ii) of the section lays down that the husband has neglected or failed to provide for her
maintenance for a period of two years. It is submitted that as we would see, these clauses
virtually amounts to desertion.

In some cases of desertion, it is not necessary that the intention to desert must
precede the fact of separation. Thus, where a person while leaving the matrimonial home,
say, for some business or work or for any other purpose goes to another place having no
intention to desert, rather all the time has clear intention that he would return home after the
completion of the mission. If such a person is stranded here for a couple of years, he would
not be a deserter, since he had no intention to desert. But, may be, after some time when he
is still away from the matrimonial home, he forms an intention to desert. The moment he
forms the intention to desert, he becomes a deserter, as at this moment both intention to
desert and fact of separation co-exist, and on the completion of the statutory period of
desertion, the other party can sue for desertion.

The Hon'ble High Court of A.P. in the case of Lakkaraju Pradma Priya vs.
Lakkaraju Shyam Prasad reported in AIR 2009 AP 54 held that where wife was living
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separate for treatment and had no intention to separate, then the wife is not in desertion.
Thus it can be said that if the desertion is for a justifiable reason or excuse or if there is
consent of other party, legal desertion does not take place. Further it will not be a desertion if
a person is compelled to live outside the matrimonial home where work compels the spouse
to live at separate place. At last, the burden of proving the desertion and all its elements,
such as fact of separation, intention to desert, desertion was without reasonable cause or
without the consent or against the wishes of the petitioner and that it continued for the entire
statutory period, is on the petitioner.

CRUELTY : The term "Cruelty" has not been defined under the Hindu Marriage Act, 1955
in relation to matrimonial matters. It is contemplated as a conduct of such type which
endangers the living of the petitioner with the respondent. Cruelty consists of acts which are
dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse
has so treated the other and manifested such feelings towards her or him as to have inflicted
bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to
have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of
other spouse which causes mental suffering or fear to the matrimonial life of the other.
"Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a
reasonable apprehension in his or her mind that it would be harmful or injurious for the
petitioner to live with the other party.

Clause (ia) of section 13(1) of the Hindu Marriage Act, 1955 provides cruelty as a
ground for a decree of divorce. It lays down that the other party has, after the solemnization
of the marriage, treated the petitioner with cruelty. This clause has been added in the Hindu
Marriage Act, 1955 by way of amendment in the year 1976. Before the amendment of
1976, the Hindu Marriage Act, 1955 contained different formulation of cruelty. The
formulation of cruelty after the amendment of 1976 has been brought at par with its
formulation under the Special Marriage Act, 1954, which has borrowed from the
Matrimonial Clauses Act, 1950. Prior to the above amendment, the cruelty was a ground of
Judicial Separation alone and not of divorce under section 10 of the Act.

Cruelty is a ground of divorce as well as judicial separation under the Hindu

Marriage Act, 1955, the Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act,
1936. Under the last statute "voluntarily causing grievous hurt" is also a ground for divorce,
under the Parsi law if behavior of defendant is such as to render, in the judgment of the court,
improper to compel the other party to live with the defendant divorce may be obtained.
Under the Indian Divorce act, 1869, a wife can sue for divorce on the basis of husband's
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adultery coupled with such cruelty as without adultery would have entitled her to a divorce,
while Cruelty as such is a ground for judicial separation.

The cruelty is usually classified as Physical Cruelty and Mental Cruelty. Acts
of physical violence of one spouse against the other causing injury to body, limb or health
have been traditionally considered amount to cruelty. What acts of physical violence would
amount to physical cruelty would differ from case to case depending upon susceptibility and
sensitivity of the parties. In case of Mental Cruelty, one party causes mental pain, agony or
suffering of such a magnitude that it severs the bond between the wife and the husband and
as a result of which it becomes impossible for the party who has suffered to live with the
other party. In other words, the party who has committed wrong or at fault is not expected to
live with the other party. Thus it can be said that Cruelty is a conduct of such a character as
to have caused danger to life or health, bodily or mental, give rise to reasonable
apprehension of such danger. The basic concept of cruelty includes both mental ad physical
cruelty. It also emphasizes that injury need not be actually suffered; a reasonable
apprehension of injury is enough.

Thus in guilt theory of divorce, on the one hand, it implies that a guilty party
commits a matrimonial offence against the other party to the marriage, and, on the other
hand, it implies that the other party is innocent and in no way a party to, or responsible for,
the offence of the guilty party. This principle was taken very far in English law; so much so
that if both the parties, independently of each other, committed matrimonial offence, the
marriage could not be dissolved. For instance, if a petition is presented on the ground of
respondent's adultery and it is established that the petitioner is also guilty of adultery, then
the petitioner cannot be allowed to take divorce under this guilt theory. Since the guilt
theory requires that the petitioner should be innocent, the English law evolved the doctrine of
matrimonial bars, discretionary bars and absolute bars. This means that even if a petitioner is
able to establish a ground of divorce to the satisfaction of the court, he may not get divorce if
one of the matrimonial bars is proved against him.

Originally, the Hindu Marriage Act incorporated the guilt or fault theory, and laid
down that there must be a guilty party and an innocent party. The Act had a conservative
stance. All the three traditional fault grounds, adultery, cruelty, and desertion, were made
grounds of judicial separation and not of divorce. But now under Section 13 of the Hindu
Marriage Act, 1955 nine grounds of divorce were recognized both for husband and wife; and
four additional grounds were recognized on which the wife alone could seek divorce.
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Barring aside insanity and leprosy, rest of the grounds arose out of some offence or wrong of
the respondent. These were: living in adultery, change of religion, insanity, leprosy, venereal
diseases, presumption of death, renunciation of world, non-resumption of cohabitation by the
respondent after a decree of judicial separation and non-compliance with the decree of
restitution of conjugal rights; (Before 1964, the petitioner, in the petition for restitution of
conjugal rights, or in the petition for judicial separation, alone could seek divorce). Thus,
these were incorporated essentially as guilt grounds. The wife‘s additional grounds, viz.
rape, sodomy or bestiality of the husband and the existence of another spouse of the
polygamous pre-1955 marriage of the husband, were also based on the same theory. Even
renunciation of the world by becoming a sanyasi fitted into the framework of fault theory,
though the orthodox will not agree that if one of the spouses enters into the holy order he
could be said to have committed any offence, yet looked at from the angle of the other
spouse it is nothing but permanent desertion. Section 23 of the Hindu Marriage Act deals
with the matrimonial bars. The Hon'ble Supreme Court in Darshan Gupta v. Radhika
Gupta {reported in (2013) 9 SCC 1}, held that the petitioner must approach court with clean
hands. Grounds of divorce under S. 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.

A look at the provisions of the Hindu Marriage Act, 1955 reveals that most of
the grounds under sub-sections (1) and (2) of section 13 are based on fault or guilt theory of
divorce. According to this theory, a marriage can be dissolved only if one of the parties to
marriage has committed some matrimonial offence recognized as a ground for divorce. 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 open with concrete instances of human
behavior as to bring the institution of marriage into disrepute. Once a marriage has broken
down beyond repair, it would be unrealistic for the law not to take note of that fact, as it
would be harmful to society and injurious to the interest of the parties. There is also a
provision for obtaining divorce by mutual consent under section 13-B of the Hindu Marriage
Act, 1955 which is based on the consent theory of divorce.

NO FAULT THEORY OF DIVORCE :

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No fault divorce refers to a form of divorce in which the spouse that is filing
for divorce does not have to prove any fault on the part of the other spouse. All a spouse has
to do is give any reason that the state honors for the divorce. The most commonly given
reason is "irreconcilable differences" or an "irretrievable breakdown of the marriage". These
are just fancy ways of saying that the couple does not get along and that the marital
relationship cannot be repaired. A spouse cannot object to another's petition for no fault
divorce, as that objection itself is viewed by the court as an irreconcilable difference.

All states recognize no fault divorces, but some states require that the spouses
live separately for a designated period of time before either of them can file for a divorce.
Under the Indian matrimonial laws, a form of irretrievable breakdown of marriage has been
recognized under the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, 1936
and the Special Marriage Act, 1954 while another form of irretrievable breakdown of
marriage as a basis of divorce is recognized under Muslim law.

Section 13 (1-A) of the Hindu Marriage Act, 1955 contains the provision for
irretrievable breakdown of marriage which runs as "Either party to a marriage, whether
solemnized before or after the commencement of this Act, may also present a petition for the
dissolution of the marriage by a decree of divorce on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for judicial
separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for restitution
of conjugal rights in a proceeding to which they were parties.

The Hon'ble Apex Court in the case of Visnu Dutt Sharma Vs. Manju Sharma
reported in AIR 2009 SC 2254, held that on bare reading of section 13 of the Hindu
Marriage Act, it is clear that no such ground of irretrievable breakdown of marriage is
provided by the Legislature for granting a decree of divorce. The court cannot add such a
ground to section 13 of the Act as that would be amending the Act which is a function of the
Legislature.

Evidently by laying down that either party could sue for divorce and not
merely the so-called innocent party and the divorce could not be denied to the other party-
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the so-called guilty party. The amendment sought to give up the guilt theory and sought to
introduce the irretrievable breakdown principle of divorce. Non-compliance with a decree
for restitution of conjugal rights and non-resumption of cohabitation after a decree of judicial
separation for a period of one year is treated as a conclusive evidence of breakdown of
marriage.

Prior to 1976, Divorce only on the basis of fault theory, it means marriage can
be dissolved only when either party to the marriage had committed a matrimonial offence.
But now Divorce can also be obtained on the basis of no fault theory, it means divorce can
obtain by the mutual consent of the parties to marriage under the marriage laws
(Amendment) Act, 1976. According to section 13-B (1) of the Hindu Marriage Act, 1955,
such a petition is required to be moved jointly by the parties to marriage on the ground that
they have been living separately for a period of one year or more and they have not been to
live together and also that they have mutually agreed that marriage should be dissolved.

Section 13-B (II) of the Act lays down that on the motion of both the parties
made not earlier than six months after the date of the presentation of the petition referred to
in sub-section (1) given above and not later than eighteen months after the said date, if the
petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing
the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized
and that averments in the petition are true, then pass a decree of divorce, declaring the
marriage to be dissolved with effect from the date of decree.

According to section 13-B of the Hindu Marriage Act, 1955, there are three
essentials of divorce by mutual consent viz.

 That both the parties have been living separately for a period of one year or
more;
 That both the parties have not been able to live together;
 That both the parties have mutually agreed that their marriage should be
dissolved.

It is an important to note that the consent obtained for divorce means divorce
by mutual consent not obtained by force, fraud, it means consent must be free as per section
23(1) of this Act. A Court of competent jurisdiction there upon motion (application) being
made by both the parties at any time after six months, but before eighteen months from the
date of presentation of petition, will make proper enquiries as it may deem fit. It is
incumbent upon the Court to verify that the statements made in the Petition are true. This
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requires the Court to verify, by examination on oath, whether they have consented to
dissolve their marriage, as stated in Petition. After making necessary enquiry into the facts
that marriage was solemnized, that the parties have not withdrawn the joint petition in the
meantime, and that their consent continues, as stated in the Petition, on the day of examining
the parties on oath. The Court has to satisfy itself about the genuineness of the averments in
the petition and also to find out whether the consent was not obtained by force, fraud or
undue influence. If the court is satisfied that the consent of parties was not obtained by
force, fraud or undue influence and they have mutually agreed that the marriage should be
dissolved, it must pass a decree of divorce. Thereupon, the Court will declare by decree that
the marriage solemnized between the parties are dissolved from the date of decree. After
presentation of the Petition for divorce by mutual consent, either of the parties may retract
his or her consent at any time or at the time of examination on oath and thereupon the
Petition shall be dismissed.

It therefore follows that the parties even when having stated in the Petition that
they have decided to dissolve their marriage by mutual consent, have opportunity to retract
or withdraw their consent at the time of examination on oath by the Court. The period of
consideration of the petition only after six months of the presentation, imply that the parties
are having opportunity to re think on the decision of divorce and law gives ample
opportunity to save marriage.

However, it is incumbent upon the parties to move before the Court before
eighteen months from the date of presentation of the Petition for divorce. The Court is not
bound to pass decree of divorce by mutual consent after a period of eighteen months from
the date of presentation of the Petition.

MUTUAL DIVORCE UNDER MUSLIM LAW : Under Muslim marriage (Nikah), a

divorce may take place also by mutual consent of the husband and wife. Existence of any
prior agreement or delegation of authority by the husband is not necessary for a divorce by
common consent. It may take place any time whenever the husband and wife feel that it is
now impossible for them to live with mutual love and affection as is desired by the God. A
divorce by mutual consent of the parties is a peculiar feature of Muslim law. Under the
Muslim law, two types of divorce by mutual consent viz. Khula and Mubarat is recognized.

The term ‘Khula’ literal meaning is considered as ‘to take off the cloths’. In
this law, it means divorce by the wife with the consent of her husband on payment of
something to him. Before Islam, the wife was no right to take any action for the dissolution
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of her marriage. But, when Islam came in to existence, she is permitted to ask her husband
to release her after taking some compensation. A divorce by Khula is a divorce with the
consent and at the instance of the wife, in which she gives or agrees to give a consideration
to husband for her release from the marriage tie.

Mubarat is also a divorce by mutual consent of the husband and wife. In Khula
the wife alone is desirous of separation and makes offer, whereas in Mubarat, both the
parties are equally willing to dissolve the marriage. Therefore, in Mubarat the offer for
separation may come either from husband or from wife to be accepted by the other. The
essential feature of a divorce by Mubarat is willingness of both the parties to get rid of each
other, therefore, it is not very relevant as to who takes the initives. Another significant point
in the Mubarat form of divorce is that both the parties are equally interested in dissolution of
marriage, no party is legally required to compensate the other by giving some consideration.

Legal consequences of Khula and mubarat are :

- The wife is required to observe Iddat;

- The wife is also entitled to be maintained by the husband during the period of Iddat;
and
- If the consideration in Khula is not the release of wife’s dower, the wife is entitled
to get her dowry.

CONCLUSION :

The Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage
Act of 1955, there was no provision for divorce. The concept of getting divorced was too
radical for the Indian society then. The wives were the silent victims of such a rigid system.
Now the law provides for a way to get out of an unpleasant marriage by seeking divorce in a
court of law. The actual benefactors of such a provision are women who no longer have to
silently endure the harassment or injustice caused to them by their husbands. However, to
prevent hasty divorces, the law lays down certain restrictions and grounds for obtaining a
divorce.

With the advancement in socio-economic conditions, the concept of marriage

has also changed. The spouses are more self-reliant and independent than they used to be
before. The spirit of forced tolerance of yesteryears is disappearing. They are prepared to live
separately rather than stay united while unhappy. The family relations always depend on the
understanding and faith between the spouses and once it is broken, the very existence of the
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family is in question. The best course in such cases would be to set them free of the bond,
which does not serve and purpose at all.

The logic behind granting divorce on breakdown of marriage is that what could
not be mended should be ended. The guilt or fault theory of divorce should be replaced,
though gradually, in exceptional cases by breakdown of marriage theory. This will enable the
embattled couple, who failed to secure conjugal happiness, a fresh start in life. A marriage
could be broken down on account of fault of either party or both parties or on account of
fault of neither party. It may happen that relations of husband and wife became so strained
that they stopped living with each other. In such a situation, it is desirable that the
relationship is brought to an end by a decree of divorce on the ground of irretrievable
breakdown of marriage without fixing any responsibility on either party in the interest of
both the parties and also the society.

*** THE END ***