NEED OF NO-FAULT DIVORCE IN INDIA – AN ANALYSIS

INTRODUCTION

According to Hindu Law, marriage is one of the 16 samskaras and the union is permanent in nature and only death can dissolve it. However, this line of old thinking, wherein permanence and inviolability of marriage were their own pillars, has now eroded. The complexity of contemporary life, which is the result of rapidly changing economic circumstances, the breakdown of the combined traditional family, as well as female education and employment, have a substantial influence on the concept of marriage. Marriage is no longer viewed as an intimate relationship [1]. The Hindu Marriage Act of 1955 was the very first Central Act to modernize marital law by allowing divorce on a variety of grounds. The reasons for divorce are outlined in Section 13 of the Hindu Marriage Act. These grounds are largely supported by the ‘fault theory’. According to this concept, a marriage can only be terminated if one or both of the individuals are at fault [2]. Divorce laws in most countries are consequently heading towards a “no-fault” divorce, which eliminates the need for accusations, counter-accusations, and evidence of marital wrongdoing.

WHAT IS A NO-FAULT DIVORCE?

No-fault divorce — called an irreversible breakdown of a wedding, irretrievable breakdown. Irretrievable breakdown of marriage means that divorce is granted irrespective of whose fault it is or whether both agree to the divorce or not. This is a unilateral divorce. In India, we do not have an irretrievable breakdown of marriage as a reason for divorce. This concept is according to the notion that marriage is a contract between the two parties; if one of them is unhappy, then it can be terminated. The concept is that when a marriage is broken and only exists on paper, and then there is no point in continuing it [3]. Divorce can be obtained under Indian law in one of three ways. The first is premised on the traditional idea of marriage guilt, the second on frustration, and the last is by mutual consent. The other subcategories of litigation, except for the third, are indefinite and tedious.

HISTORICAL ASPECT

The concept originated in New Zealand in 1921 through a historical decision embracing irretrievable breakdown as a reason for divorce. If the parties reside in separation for more than 3 years, it is assumed that the marriage has irretrievably broken down [4]. The first divorce in New Zealand was approved in 1921 on the criteria of irretrievable dissolution of marriage. According to the ruling, “when matrimonial relations have ceased to exist, it is not in the interests of the parties nor in the interest of the public to keep the man and woman bound as husband and wife in law”. In addition, the Court stated that “in the event of such a separation, the essential purpose of marriage is frustrated and its further continuance is not merely useless but mischievous”. The breakdown theory in marriage law was made in this scenario.

LEGAL POSITION

Section 13 (1-A) was established in 1964 as a legislative endorsement of the notion that if a marriage has broken down, it serves no use to keep the spouses bound to one another in the interests of the public. In essence, the amending Bill’s Statement of Goals and Principles makes it apparent that Parliament intends to make irreversible marriage breakdown a reason for divorce. It should be noted, therefore, that while mutual consent divorce eliminates the need to impute wrongdoing or guilt to the respondent, it does not provide a favourable outcome in instances where, even though the marriage is unsustainable, one of the parties declines to assent to the divorce. As a result, the marriage legally continues to subsist. In this regard, the Delhi High Court’s decision in Gulabrai Sharma v. Pushpa Devi [5] should be considered. A husband filed for divorce based on his wife’s abandonment, but his plea was denied since the claim could not be proven. However, as of today, there is no statutory law and it is granted under Article 142 when it concludes that a marriage is dead.

BREAKDOWN THEORY RELEVANCE IN HINDU LAW

Although the issue in India over whether irreparable marriage breakdown should be considered as a basis for divorce is not new, the Indian Law Commission’s 71st report is widely regarded as the very first significant proponent of the Breakdown concept. According to the 71st report of the Indian Law Commission, “Human life has a short span and a situation causing misery cannot be allowed to continue indefinitely”. “It emphasizes that restricting divorce grounds based on faults shall cause injustice to those couples who are stuck in a situation when neither party has any fault with the marriage having become merely an external appearance without any efficacy” [6]. According to the Law Commission, limiting divorce to matrimonial incapacity causes unfairness in circumstances. When neither party is guilty, or if the flaw is of such a kind that even the partners prefer not to disclose it, the marriage cannot be restored.

MERITS AND DEMERITS OF NO-FAULT DIVORCE

Guilt must be proven under the flawed idea, and divorce courts are provided with real examples of human conduct that cast the concept of marriage into dishonour. The lawyers must seek and uncover the worst atrocities that can occur in a marriage, and the judges must deal with them. As a result, it would have been impractical for the court to disregard the reality that the marriage had disaggregated beyond repair, so it would be detrimental to society and the partners’ welfare if the legal connection were to be maintained despite the absence of the effective substructure. Because there is no appropriate way to persuade a bride to restart life with her partner, there is no benefit in attempting to bind the parties to a marriage that has collapsed indefinitely.

Well, at the same time, it has criticisms too. One of the reasons stated by the High Court in its response is that it is quite problematic to declare that a husband and wife will never live together simply because there has been a rupture between them, but for the time being, it seems that they will not be able to live together. The sole possibility that there is a separation between the parties or that they are living apart for the moment wouldn’t imply that the marriage is over [7]. Probably, something that appears irreversible to one individual might not be irreversible to another.

CONCLUSION

Divorce laws are rapidly changing to satisfy the requirements of new circumstances and to provide freedom for spouses who are unhappy in their relationship. Although mutual consent is a massive step forward, even when a marriage has completely shattered, one of the couples may refuse to agree to a mutual divorce. The courts have found themselves incapable on multiple occasions of providing an effective remedy to litigants where there is an obvious breakdown of marriage but the scientific proof is insufficient to demonstrate a marriage fault under the legislative provision. However, irrevocable breakdown alone is insufficient; therefore, courts invoke a statute “ground” and provide relief based on the totality of the facts. In a recent decision, the Supreme Court strongly suggested that irreversible breakdown be added to the list of grounds for divorce. Now is the time for such legislation. When the law is implemented, measures must be in place to ensure that it is not abused or exploited by anybody else.

Author(s) Name: G. Bhargavi (DSNLU, Visakhapatnam)

References:

  1. RK Aggarwal, Hindu Law (25th edn, Central Law Agency 2016)
  2. Hindu Marriage Act 1955
  3. Vijendar Kumar, ‘Irretrievable Breakdown of Marriage: Right of a Married Couple’ (2010) 5 Nalsar Law Review 15
  4. Masarati v. Masarati [1969] 1 WLR 393 CA
  5. [1979] ILR 2 Del 220
  6. The Hindu Marriage Act, 1955, Irretrievable Breakdown of marriage as a ground of divorce, Law Commission of India< https://lawcommissionofindia.nic.in/51-100/Report71.pdf> 71st Report 1978.
  7. Kusum, Family Law Lectures (2nd Edn, Lexis Nexis Butterworths 2007)

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