Legal Reasoning for CLAT, Passage- Divorce theories

Wednesday, April 7th, 2021

The theories of divorce under Indian laws are as follows:

 

The fault theory of divorce is also known as the offense theory or guilt theory. Therefore it highlights on the point that a marriage can be dissolved when any of the parties within the bond of matrimonial ties commits an offense against the innocent party of the marriage. Thus it is necessary to have a guilty partner and an innocent partner within the bond the matrimonial ties. The innocent party only holds the right to seek remedy for the divorce. However, the most striking feature is that if both parties are at fault there is no remedy available for them.

 

Mutual consent theory- The reasoning behind this theory is that since two people marry each other through their free will, at the same time, they ought to likewise be permitted to move out willingly. In any case, it highly criticized that this methodology will advance immorality as it will prompt rushed separations and parties would break down their marriage regardless of whether there was a slight contradiction of personality.
Irretrievable breakdown of marriage theory- The irretrievable breakdown of marriage theory is defined as a failure in the matrimonial relationship owning to such adverse circumstances that no reasonable probability remains for the spouses to stay together. As a result of such adverse impossible conditions and situations, the husband and the wife cannot ever stay together. Thus we can say that in such cases there is a stronger reason to live apart compared to the emotions of love, affection, and loyalty that should commonly prevail between the husband and the wife. Therefore the rationale behind this theory is that if a marriage is beyond all possibilities of a repair then it should be brought to an end; when a marriage is not able to last then there is no point in sharing rights and obligations between the two parties.

 

Source with Editing and Revision: https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/

 

Questions

 

1. Oreo and Bourbon married under Indian Law. After few years into the marriage their relationship turned sour. They both started neglecting each other. One day Oreo found out that Bourbon is seeing another girl. Enraged by this she also started an affair with her gym trainer. They both came to know about their extramarital affairs. It proved to be hard especially hard on Bourbon and so he wanted divorce from her on the basis of her fault. She on the other hand didn’t want the relationship to end. Can Bourbon succeed in his attempt?

a. Yes
b. No
c. Can’t Say
d. Yes but only if he is able to prove that Oreo indeed was indulged in extra marital affairs.

 

2. Suppose in the same facts given in question above, Oreo also wants to end the relationship. Which of the following theory they can employ to get the divorce?
a. Fault Theory
b. Mutual Consent
c. Irretrievable Breakdown Of marriage
d. None of the above.

 

3. Suppose Oreo and Bourbon decided to forget about their lapses, forgive and commit to each other again in order to save the marriage. Both started mending their ways. However Oreo was not able to trust Bourbon again, she tried and tried but failed to attain any stability. She confronted Bourbon about this and asked him to agree for the divorce on mutual grounds. But he out rightly rejected the idea and told her to take some more time. She finds it futile and wants the divorce anyway, advise her.
a. She can get a divorce based on fault theory
b. She can use mutual consent theory to get the divorce
c. She can get a divorce using the theory of irretrievable breakdown of marriage
d. She can get a divorce using either fault of irretrievable breakdown of marriage theory

 

4. Suppose in the facts given in the question in above, after forgetting and forgiving each other for their lapses they both started working to improve their relation. However Oreo kept suspecting that Bourbon was still talking to some girls. She was becoming increasingly jealous and so she decided to confront him. He denied any such thing, but it didn’t calmed Oreo and she started nagging Bourbon about it and made his life hell. Bourbon found it increasingly difficult to maintain composure in face of baseless allegations and abuses by Oreo. Completely exhausted by Oreo’s constant suspicion and nagging, Bourbon decided to end the marriage. Advise him
a. He can get a divorce based on fault theory
b. He can use mutual consent theory to get the divorce
c. He can get a divorce using the theory of irretrievable breakdown of marriage
d. He can get a divorce using either fault of irretrievable breakdown of marriage theory

 

5. Suppose in the facts used in the question above. Oreo finds out evidences that Bourbon indeed hasn’t changed much and is still involved in extra marital affairs. When she confronted him he accepted his fault and promised to never repeat it. However Oreo doesn’t want to continue the marriage. Advise her.
a. She can get a divorce based on fault theory
b. She can use mutual consent theory to get the divorce
c. She can get a divorce using the theory of irretrievable breakdown of marriage
d. She can get a divorce using either fault of irretrievable breakdown of marriage theory

 

 

 

 

 

 

 

 

 

CLAT Gurukul

Answers

1. B If both parties are at fault there is no remedy available for them.
2. B It allows parties to end the marriage voluntarily the same way they entered into the union.
3. C It is happening because of Oreo’s inability to feel good about the marriage and she is left with no hope. So IBM theory would apply. Not any single party is at fault here.
4. D The fault is on Oreo’s part by being overly suspicious, but even irretrievable breakdown of marriage theory would also apply as Oreo wouldn’t believe in him and he can’t live with the constant nagging. So there is no scope of things getting better in their marriage.
5. A He had committed the lapse again and so he is at fault.