The Need for Unilateral No-Fault Divorce Under the Hindu Marriage Act

*Shantanu Shastri

Introduction

The idea or the institution of marriage can be traced to religious conservative thought universally across major jurisdictions. Marriage as an institution, on a broader basis, has lacked the provision for divorce. Talking about marriage in Christendom, W. Friedmann, in the book ‘Law In A Changing Society (1959) ’ highlights the position that marriage creates permanent moral and legal bond that cannot be ended with human will and law, and the state lacks the authority to terminate it. Conservative notions of marriage centred around procreation as a purpose of marriage, and because the state has a vested interest in managing population, ultimately, marriage came to be as an institution of social control regulated by the state. Michel Foucault, in his work The History of Sexuality, Volume 1,-highlights how the state invested in ‘family planning’ to achieve the objectives. The ‘sanctity of the institution of marriage’ question answered in Joseph Shine Petitioner(S) v. Union Of India (S). is a culmination and manifestation of this biopolitics that plays in the background. A genealogy of this ‘marriage’ was floated to de-elevate it from its pedestal of sanctity. 

Modern jurisprudence affords space to plurality and de-hyphenates marriage from procreation, relegating it from the lens of ‘need for maintenance of the state’ to the domain of privacy. This dilution of biopolitics ultimately dilutes the sanctity flavour, as the latter is a function of the former. The family one chooses is valued more and is sought to be treated differently from the family one is born into. This biopolitics of marriage is common across all religions, and the differences in the nuts and bolts are superficial. This built-up helps us understand the reason behind hesitation in liberalisation of divorce laws, as the state here does not remain merely as a tool of expression of a certain interest group, but itself becomes a player in the chess of conflict of interests.

Fault-Based Grounds

A decree of divorce, under the Hindu Marriage Act, is granted under section 13, on fault-based grounds such as adultery, cruelty, desertion, conversion to another religion, amongst others. The idea is to give a spouse the right to break away in case of certain actions by the partner, following which the spouse can’t be reasonably expected to cohabit with the partner. The proceeding takes the form of a civil case, and establishing the partner's guilt is a necessary condition for obtaining      a decree of divorce. The case usually lasts for two to five years, excluding the period during which appeals are pending in the high courts or the Supreme Court. Needless to say, categorised as in-persona, no case lies if the spouse does not wish to pursue the cause and wants to continue cohabitation. In scenarios where no one is really at fault, apart from convincing the spouse for a mutual divorce under section 13B(1), failing which, divorce under faulty-based grounds is the only option left for single partner who wants to break away leading to mess, ugliness, adversarial litigation in family court rooms as spouses frame cases assigning blame which leads to contentious proceedings, increased delays and emotional distress as indicated by 71st Law Commission Report in 1978, and the same was highlighted in 217th Law Commission Report in 2009. Interestingly, both      reports fell short of acknowledging the need for unilateral no-fault divorce and stretched the argument only for the need to recognise the irretrievable breakdown of marriage as a ground of divorce. 

Mutual Divorce

Mutual Divorce was introduced as a ground of divorce under section 13B (1) in the Hindu Marriage Act in the year 1976, for providing a mechanism to both      parties to separate amicably, but it does not cover situations where one party refuses to cooperate and fails to address the realities of modern marital breakdowns. Before filing for mutual divorce, a one-year separation period requirement needs to be fulfilled by the parties, which can be waived off only in cases of exceptional hardships under section 14(1),depending upon the facts and circumstances of the case and not otherwise in the usual course of things, as held recently in the case of Shiksha Kumari v. Santosh Kumar. The Delhi High Court further ruled that courts have the power to waive of cooling period under section 13B(2) for filing the second motion and that waiver under section 14(1) does not bar waiver under section 13B(2) but the waivers are not a matter of course and can only be granted as per parameters laid down in the case of In Re Pooja Gupta and Anr. v. Unknown.

Here too, the timeline seems long for the one-year-plus-six-month period is further prolonged by court delays and adjournments. Though the sanctity factor seems dissolved to a great extent, it still manifests in procedural requirements where the state wants to nudge individuals into making ‘better decisions’ by mandating separation and a cooling-off period. Such requirements are a necessary evil, even if they undermine and question individuals' autonomy and agency, and, for a while, there is a choice to opt for mutual divorce. The state tries to convince individuals to make a ‘rational’ choice, but it is also necessary, as a safety check, to prevent in angst. However, the need for unilateral no-fault divorce stays intact, for even the ‘mutual’, as the name suggests, takes the liberty away from a single partner if one chooses to break away.

Irretrievable Breakdown of Marriage

Article 142 in Constitution of India provides that the Supreme Court may pass such a decree/order as is necessary for doing ‘complete justice’. Using the powers under this article, the Supreme Court established ‘irretrievable breakdown of marriage’ as a ground in the case of V. Bhagat v. D. Bhagat (Mrs).   which was not left overbroad and vague and was held to mean marriage being ‘dead beyond salvage’ and serving no social purpose. Since it’s not a statutorily recognised ground, cases begin in lower courts only on fault-based grounds and only in appeal due to lack of evidence, on a case-to-case basis, acquire a breakdown flavour depending upon the discretion of the court. The rarity is further highlighted by the fact that only the Supreme Court has the power to grant a decree on the basis of irretrievable breakdown. The Supreme Court in the case of Naveen Kohli v. Neelu Kohli urged the parliament to statutorily introduce the breakdown ground, which has yet to be done by the parliament. From the V Bhagat case in 1994 to the Kohli case in 2006 to Shilpa Sailesh v. Varun Sreenivasan in 2023, a consistent rule was expressed that prolonged separation is required as an evidentiary standard and a proof of irretrievable breakdown because it needs to be established as a ‘social fact’ and not a subjective feeling. The court wanted to avoid Article 142 becoming a source of divorce on demand.

When it comes to the timeline, typically five to ten years of separation is treated as conclusive and shorter periods require exceptional facts. Given court delays, adjournments, and the fact that such power under Article 142 can be exercised only by the Supreme Court in exceptional cases and circumstances, the timeline usually stretches to more than ten years. 

Hence, after carefully analysing the available mechanisms of divorce, one can easily conclude that getting a divorce under the Hindu Marriage Act is a herculean task and effectively, a person once married stands stuck in the absence of mutual consent and fault of the partner. Such a situation needs to change, given the liberal, autonomy and privacy-based claims of a liberal democracy like India.

The proposal for unilateral no-fault divorce

As per the logic of liberal rights, every right can be traced back to a larger set; tracing back must be the norm, and creating a different set is permissible only if a trace is not possible. There is a difference between recognising and applying a right. When a constitutional court declares a right, it's merely recognising what was already applied. The recognition of the right to privacy as a facet of the right to personal liberty in Justice K.S.Puttaswamy(Retd) vs Union Of India in 2018 created a new sub-genus, which leads to a whole new set of subspecies rights waiting to get recognised.

The right to personal liberty was said to include the right to autonomy, leading to the right to privacy, which further includes fulfilment of marital obligations as a personal choice, as per Joseph Shine v. Union of India. These two landmark judgments help explore the spectrum of ideas about marriage from a new perspective, thereby shifting the Overton window on divorce. Countries such as Canada (one year separation period required), China (30 days cooling off period after initial application), Spain, Sweden, England & Wales (twenty-week reflection period), Malta, and Russia (one month waiting period) recognise unilateral no-fault divorce without requiring the spouse to establish guilt. 

Once the right to privacy and autonomy is acknowledged, the need for the partner to prove fault in pursuing divorce seems irrelevant. Privacy is not just spatial; it also includes decisional autonomy. The fact that a partner does not wish to continue the marriage should be sufficient for a divorce decree      to be granted. The requirement of the law to establish fault, to convince the partner of mutual divorce, or to make the marriage dead beyond salvage and open the doors to irretrievable breakdown as the only ways to get a divorce is a negation of the privacy and decisional autonomy      of the individual trying to break away. The state wants to control what constitutes a ‘good enough’ reason to break away, and such a paternalistic, conservative approach is incoherent and inconsistent with the changing marital jurisprudence post Puttaswamy and Shine. The law must acknowledge the dynamics of the changing society, and ‘divorce on demand’ must be embraced. Accepting the ‘institution of marriage’ argument opens floodgates in a range of issues, including settled issues of adultery, and pending issues such as same-sex marriages, and marital rape, where the thrust on this notion to be delegitimised is increasing and has seen widespread scholarly support, amongst others. This is not to argue that there should be no period of separation or cooling-off period in case of a unilateral no-fault divorce but to argue that at least there must be such a mechanism in the first place at the very least.

In a way, the seeds of unilateral no-fault divorce are already sown when one argues about the unconstitutionality of section 9 in cases like T. Sareetha v. T. Venkata Subbaiah and the pending Ojaswa Pathak v. Union of India (WP(C)250/2019) because it’s just a matter of degree of stretching the same idea . If the argument advanced is that forcing an individual who has deserted without reasonable cause can be a ground for divorce for the spouse but not a ground for the state to force the individual to cohabit, as it is a violation of personal liberty, there should be no hesitancy to stretch this argument to advance the need for unilateral no-fault divorce, with enough safety checks.

Conclusion 

When there is a recognition or change in the genus right, it inevitably has a domino effect on the specie rights of varied nature. Recognition of a right via judicial interpretation is not an exercise in silos, but in fact a change in a part of the greater whole. The Supreme Court seems to be great at recognising genus rights, but when it comes to engaging with the domino effect, it is dismissed as a slippery slope or as far-fetched in the name of issues falling within the legislature's domain, practically leaving citizens to live, in a state of duality. When marriage itself is recognised as a personal choice, the interest of one spouse to continue marriage should not be protected as a right at the cost of the privacy of the one who wants to break away, and no one apart from the individual should have a say in what is a ‘good enough’ reason for a divorce. The society changes even if the law doesn’t.  In fact, not having such a mechanism of divorce is creating more problems than it solves.

*The Author is an Assistant Professor of Law in Prestige Institute of Management and Research, Indore.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.