NO-FAULT DIVORCE IN INDIA

NO-FAULT DIVORCE IN INDIA

 Ninaad Deshmukh

 Maharashtra National Law University, Mumbai

India is a conservative country that places immense value in its cultures and traditions. Concepts like marriage and family are arguably of the utmost importance to one and all. But in today’s times, one has to accept the reality that we no longer live in the times where these cultures and traditions originated. With changing times, have arrived changed notions on life. Hence, even being the sacrosanct and apparently permanent union that marriage is, today it has become subjected to nullification in the form of a divorce.

While divorce itself is no longer a new or boycotted topic, there are some facets within the same that have not been given the due recognition and appreciation that they out to receive. There are times when a marriage is dead both emotionally and physically and there is no possibility of its revival. It is indicative of a disruption of the essence of marriage i.e. a breakdown, and if it continues for a fairly long period, it would indicate complete destruction of the essence of marriage, what is otherwise known by law as an irretrievable breakdown of marriage.

An irretrievable breakdown of marriage has been recognized as a ground for divorce all over the world. But in India, only the Special Marriage Act, 1954 assigns recognition to irretrievable breakdown of marriage as a ground for divorce. It has been judicially legislated upon by the Muslim law also but no other Indian personal law recognizes it.

On the same lines, a no-fault divorce is a provision that enables a spouse to obtain divorce on ‘irreconcilable differences’, ‘incompatibility’ or ‘irremediable collapse’. But, it does not require the spouse that wants the divorce to show any faults or wrongdoings on part of the other party.

Various Law Commission reports have time and again suggested the introduction of legislation with regards to no-fault divorce. Even so, there is little action targeting this matter. According to Section 13-B (1) of the Marriage Laws (Amendment) Act, 1976, a divorce by mutual consent is required to be moved jointly by the parties to marriage on the ground that they have been living separately for a period of one year or more and they have not been to live together and also that they have agreed that marriage should be dissolved. But this legislation is not very particular and hence not specifically applicable. Further, although the Marriage Law (Amendment) Bill, 2010 was brought in by the UPA government seeking to introduce Section 13C – ‘Divorce on ground of irretrievable breakdown of marriage’ – enabling both the husband and wife to seek divorce on irretrievable breakdown of marriage while granting protection to the wife to oppose the petition on the ground of hardship, it failed to be cleared by the lower house of the Parliament and lapsed with the dissolution of the 15th Lok Sabha in 2014. As such, there are no explicit provisions related to no-fault divorce.

Hence, for now, only the Supreme Court has the power to deliver a judgment over cases with the distinct nomenclature of ‘irretrievable breakdown of marriage’. In cases where the Court is convinced beyond any doubt that there is actually no chance of the marriage surviving and it is broken beyond repair, it may grant a ‘divorce due to an irretrievable breakdown’. It exercises this power under the ambit of Article 142 of the Constitution. But, it does so very sparingly, after years of legal battles, and only upon extraordinary circumstances. Therefore, the real fruits of a proper no-fault divorce are hardly realized by spouses.

A marriage could thus be broken down on account of fault of either party, both the parties or even on account of fault of neither of the parties. It may be so that the relations of the spouses became so strained that they simply stopped living with each other. In such a situation, it is desirable that the relationship is brought to an end by a decree of divorce on the ground of irretrievable breakdown of marriage without fixing any responsibility on either party in the interest of both the parties and also the society. Hence it is important to give de jure recognition to what exists de facto to enable them to resettle their life.

Even though the introduction of the no-fault divorce principle may have failed in India but this is certainly not the end of it. As the law already recognizes a similar principle, it only needs to evolve and transform itself to current social sensitivities and awareness norms, and re-discover and better what it already has under its umbrella of protection.

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