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Family law project on consent theory of divorce
Typology: Assignments
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Marriage is considered a sacrament under Hindu law. Although it has some contractual connotations, the sacramental aspect of marriage has always been considered to be more pronounced and prominent. A general interpretation of ancient Hindu texts states that the bond of marriage once made, is supposed to last forever. But, even the authors of those ancient texts saw the distance between these ideals and the reality they actually knew. The concept of divorce, in some form or the other, has been a part of society as long as the institution of marriage has. In Hinduism, various scholars expounded on the subject of divorce and conditions under which it could be granted. Now, however, there are various grounds under which divorce is granted. The remedy of divorce is available to couples even if they mutually agree to end their marriage Hence, a fault, guilt or breakdown are not necessities for getting a divorce. S.13B of Hindu Marriage Act, 1955 is based on the consent theory. It states that as mutual consent of both parties is a necessity for marriage, their mutual consent should hold a similar value in matters of ending that marriage. In India, the consent theory has a heavy discourse surrounding it. Many people believe that it threatens the institution of marriage itself. However, there are many voicing the need to decrease restrictions on the current iteration of the consent theory in the form of an amendment to S.13B of the act. One has to wear both these lenses to see the true colours of divorce by mutual consent. In this paper, the researcher will conduct detailed study on theory of divorce and more precisely ‘consent theory of divorce’. For this, she will study provision of HMA, 2005 dealing with mutual divorce. Further, she will study several landmark judgements pronounced by Courts of India.
1. What are the different theories of Divorce? 2. What is divorce by mutual consent? 3. Whether waiting period of six month is mandatory or directory to get divorce? 4. Whether consent can be unilaterally withdrawn? 5. Whether silence amount to withdrawal of consent?
