Divorce Proceedings Should Not Require Proving Partner’s Fault Indira Jaising Argues before Supreme Court

A constitutional bench of the Supreme Court of India on Wednesday observed that marriages could end without any fault of either partner, simply due to irreconcilable differences.  The bench is currently hearing a string of petitions to determine whether the Court can use Article 142 of the Constitution which states that the Supreme Court’s decisions are enforceable throughout the territory of the nation to dissolve marriages.

In the absence of any formal legislation that recognizes “irretrievable breakdown of marriage” as a valid ground for divorce, the Supreme Court has at times made use of its powers under Article 142 to dissolve marriages. The Court’s comments highlight the need for recognizing “no-fault” divorces as valid. 

In India, divorce laws are governed under the Hindu Marriage Act, 1955. Contested divorce refers to divorce petitions filed by one partner on grounds of cruelty, adultery, conversion, desertion, or unsoundness of mind exhibited by the other; consensual divorce on the other hand is filed by both partners through mutual consent. Beginning legal proceedings on the latter, however, are much more complicated than the former. 

While couples married under the Hindu Marriage Act and the Special Marriage Act need to have lived separately for at least one year before filing for divorce under mutual consent, Christian couples are required to have lived separately for a minimum of two years before filing for divorce. Additionally, all couples seeking a consensual divorce have to visit the court twice: once to file their petition, and once after six months to record evidence. 

Barring desertion, there are no such time limits to adhere to while filing proceedings for a contested divorce. The current decision could steer the legislature toward making it easier to seek divorce even on consensual grounds, but a larger change also needs to come from within Indian society. 

Advocate Indira Jaisingh, assisting the Court in the current proceedings, echoed a similar sentiment on Wednesday by stating, “I am in strong disagreement with judgments which indicate that marriage is a sacrament and it’s the public policy of India that we don’t break marriages.” Arguing that social norms also change with time, Jaisingh added, “arguments such as ‘marriage is a sacrament and thus, we must not agree to the theory of irretrievable breakdown,’ do not make any sense.”

In fact, the sanctity of marriage in Indian society, and the taboo around divorce, prevents women from seeking divorce even when they face abuse and cruelty in their marriage and leave them without ample support from their loved ones. However, at times when the legislature is inadequate, the judiciary can step in to resolve problems spouses may face in filing for divorce.