THE FAULT THEORY OF DIVORCE

introduction
 Divorce is the legal dissolution of a marriage by a court or any other
competent party.

 In early Roman law marriage & divorce were considered as a private

matter.

 No formalities of an agency was necessary.

 After advent of Christianity, marriage was regarded as a sacramental and

indissoluble union

 In England only the act of the Parliament, a marriage could have been
dissolved (before 1857)

 While , in India marriage has always been sacramental and indissoluble.

Fault theory
Under the Fault theory or the offences theory or the guilt theory, marriage can
be dissolved only when either party to the marriage has committed a
matrimonial offence.

It is necessary to have a guilty and an innocent party, and only innocent party
can seek the remedy of divorce. However the most striking feature and
drawback is that if both parties have been at fault, there is no remedy
available.

This theory was adopted from English law in Indian law.

According to this theory, the spouse can seek the divorce from the other spouse
if he or she is found in fault of committing a matrimonial offence. The
expression matrimonial offence, includes (1) adultery (2) desertion (3)
cruelty (4) Rape (5) sodomy (6) Bestiality (7) Refusal to obey court’s order
to pay maintenance to the wife (8) Marrying an underage person. This
implies that there should be personal injury to the marital relations of the
spouses.
 Doctrine of Recrimination
 According to the English Law of Doctrine of Recrimination, if both the parties
independent of one another have committed matrimonial offence the marriage
should not be dissolved. The guilt theory is criticized on the basis that it
recognizes divorce only on certain (above mentioned) grounds. Some more
grounds are recognized which led to the renaming of guilt theory as fault
theory. The grounds like insanity and epilepsy are added to the list. Thus, if one
of the parties has some fault in him or her, marriage could be dissolved whether
that fault is his or her deliberate or unintentional act.

 Further, the Marriage Laws (Amendment) Act, 1976 has made a radical
amendment and grounds of divorce are increased and some special grounds for
divorce are given to the wife.
The fault theory is also the basis for divorce under the Parsi Marriage and
Divorce Acts 1936-88 . As many as eleven grounds for divorce are
recognized, and practically all the matrimonial bars have been enacted.

Originally, under the Hindu Marriage Act,1955, divorce was based only on the
fault theory . The consent theory and the breakdown theory were introduced
later on. The Special Marriage Act, 1954 enacted both the fault theory and
consent theory. The Dissolution of Muslim Marriage Act, 1939, also enact
the the fault theory.
Case law

 Darshan Gupta vs. Radhika Gupta AIR 2009

 Rishikesh Sharma v. Saroj Sharma AIR 2012