A good divorce – Irretrievable breakdown of marriage should be a ground for divorce

Source: The post is based on the following articles

“Consent Is The Soul Of Marriage” published in The Times of India on 3rd May 2023.

“A good divorce – Irretrievable breakdown of marriage should be a ground for divorce” published in The Hindu on 3rd May 2023.

Syllabus: GS 2 – Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of vulnerable sections.

Relevance: About SC ruling on granting divorce for irretrievable breakdowns.

News: The Supreme Court in Shilpa Sailesh vs Varun Sreenivasan case held that a court can directly grant a divorce under Article 142 of the Constitution in cases where the marriage has irretrievably broken down.

About the status of divorced and separated couples in India

In India, divorcees have doubled in number over the past two decades. But the incidence of divorce is still at 1.1%, with those in urban areas making up the largest proportion.

According to Census 2011, the population which is “separated” is almost triple the divorced number. There are many women, particularly among the poor, who are abandoned or deserted.

About the current procedure for getting a divorce

For fault-based cases: Under Section 13 of the Hindu Marriage Act, a marriage may be dissolved on grounds of adultery, cruelty, desertion, bigamy, rape, etc. These are often called as fault-based cases. In these, a divorce petition can be moved by either party without the consent of the other.

For No-fault divorce: This could be sought only by mutual consent under Section 13-B. In such cases, the parties would ordinarily file a motion for divorce, and then have to wait six months before the decree could be passed by court.

The intent was to give a ‘cooling-off period’ and allow the couple time for reflection.

About the recent SC ruling on granting divorce for irretrievable breakdowns

What is the rationale behind granting divorce for irretrievable breakdowns?

a) Courts in the past recognised that in many cases, the mandatory waiting period only prolongs the misery of the couple, and often delays or impedes a settlement, b) Irretrievable breakdown of marriage was considered by the Law Commission in a few of its reports. The Commission in its 71st report recommended that the law be amended to provide for “irretrievable breakdown of marriage” as an additional ground for divorce. The same was reiterated in its 217th report also.

c) In 2010, the government introduced the Marriage Laws (Amendment) Bill, 2010. It proposed to add irretrievable breakdown as a new ground for divorce in both the Hindu Marriage Act and the Special Marriage Act. But after amendment the 2013 bill mentioned that the six-month waiting period could be mutually waived by the parties but the Bill was never passed, d) In Sivasankaran vs Santhimeenal (2021), SC considered the question of social acceptance and economic security of women during irretrievable breakdown and said it should be granted unilaterally.

Note: Under the Hindu Marriage Act, irretrievable breakdown of marriage is not yet a ground for divorce.

What is Article 142 of the Indian Constitution?

What are the advantages of granting divorce for irretrievable breakdowns?

The ruling is much needed as a) it provides relief to couples from the “agony and misery” of waiting six to 18 months for a local court to annul the marriage, b) many women are still not financially independent. So, a faster divorce might provide faster financial settlement, c) normalise divorce and can eliminate the social stigma around divorce in India.

What are the concerns highlighted by experts on granting divorce for irretrievable breakdowns?

The experts point out that granting divorce for irretrievable breakdowns without a cooling-off period might push women into a disadvantageous position as there are high levels of gender discrimination in India.

The liberal notion of marriage as a partnership of mutual consent is not yet the reality in much of the country, and its dissolution usually entails enormous social and economic hardship for women and children.