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"C T O D ": Onsent Heory F Ivorce

This document is a rough draft submitted by Rekha Kumari for her BBA L.L.B course on family law. It outlines her research on the consent theory of divorce. The paper will study provisions in the Hindu Marriage Act related to mutual divorce and key court judgments. It establishes research questions around different divorce theories, the requirements for mutual divorce, and whether the six month waiting period is mandatory. The aim is to understand the consent theory of divorce and its global application. Secondary sources will be used for data collection and legal databases for case studies. The tentative structure divides the paper into chapters on the history of divorce, relevant laws, theories of divorce, and analysis of the consent theory and related case laws.

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REKHA SINGH
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180 views3 pages

"C T O D ": Onsent Heory F Ivorce

This document is a rough draft submitted by Rekha Kumari for her BBA L.L.B course on family law. It outlines her research on the consent theory of divorce. The paper will study provisions in the Hindu Marriage Act related to mutual divorce and key court judgments. It establishes research questions around different divorce theories, the requirements for mutual divorce, and whether the six month waiting period is mandatory. The aim is to understand the consent theory of divorce and its global application. Secondary sources will be used for data collection and legal databases for case studies. The tentative structure divides the paper into chapters on the history of divorce, relevant laws, theories of divorce, and analysis of the consent theory and related case laws.

Uploaded by

REKHA SINGH
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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You are on page 1/ 3

“CONSENT T HEORY O F DIVORCE ”

Submitted by:

Rekha Kumari, (2249)

BBA L.L.B (Hons.)

Submitted to:

Ms. Nidhi Kumari

Assistant Professor of Law

This rough draft is submitted in the partial fulfilment in Family Law-I for the
completion of BBA L.L.B course.

4th September 2020

Chanakya National Law University, Patna

1
INTRODUCTION
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.

RESEARCH QUESTIONS

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?

2
AIMS AND OBJECTIVE

• To Study about Divorce theory under Hindu Marriage Act, 1955

• To know the requirements to be fulfilled to get mutual divorce under HMA, 1955

• To study the global application of consent theory of divorce

HYPOTHESIS

Divorce by mutual consent provides an opportunity of amicable resolution of disputes between


parties and saves time and money.

RESEARCH METHODOLOGY

Since the research is a non doctoral one, therefore the data would be mainly collected from
secondary sources of information. These will include books, bare acts, journals, articles, and
other internet sources. For cases, legal database such as Manupatra and SCC Online will be
referred.

TENTATIVE CHAPTERISATION:

• Introduction
• History of Divorce
• Different laws for getting divorce in different religion
• Theory of divorce
• Consent theory of Divorce
• Divorce under Hindu Marriage Act, 1955 (HMA, 2005)
• Requirements to get divorce under Section 13B of HMA, 1955
• Case laws on divorce by mutual consent
• Waiting period of six month, mandatory or directory?
• Whether consent can be unilaterally withdrawn?
• Whether silence amount to withdrawal of consent?
• Global application of consent theory
• Conclusion
• Bibliography

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