(Guest post by Sahana Manjesh, a third year student at National Law School of India University, Bangalore.)
Marriage has long been a bastion of what is considered sacred and traditional about relationships in India. Divorce then is viewed skeptically by sections of the society, law makers and adjudicators in equal measure. Mercifully though, there are evolutions that come about in the law every once in a while that accept social changes and try coping with the problems that entail, a tad slow but there nonetheless. One such is the proposed amendment to the Special Marriages Act and the Hindu Marriage Act. The cabinet in June 2010 approved the introduction of “irretrievable breakdown of marriage” as a ground for divorce. This comes after similar proposals by two Law Commission Reports (the 71st and the 217th) and numerous judgments directing the Parliament to consider this to be a legitimate ground for divorce.
So what is so revolutionary about these amendments anyway? Plenty much I’d say. The theory of divorce that works in India is fault based. Thus, if one has to divorce their spouse, they must prove to the court cruelty, adultery, insanity et al. The simpler way of ending the marriage is of course by mutual agreement to that effect. So what about when a person wants to end the union when the spouse has not done anything wrong as per the law and is unwilling to let go? The no-fault theory of divorce is the solution to this, which is what the proposed amendments in effect would mean. These would allow all those in unhappy marriages to end them just as easily as they got into them. It is about time the law changed its role from being the protector of marital ties to that of the protector of the welfare and happiness of individuals.
Irretrievable break down of marriage has been used by the courts to grant divorces long before these amendments. Article 142 of the Constitution has been used to back these decisions, which are more often than not instances in which the couple have been living apart for great lengths of time. However, for every judgment that allows irretrievable breakdown to be a ground for divorce, there is an equal body of case law that disallows this for the statutes do not allow for it. The courts have however cried out to the Parliament in unison to consider this to be a ground for divorce. If the amendments come through, as they are most likely to, courts can start delivering uniform decisions.
The amendment would make divorces easier to achieve now without having to waste colossal court time in proving why and how the spouse is wrong. This way, the divorce can end on a more civil note. True, there are concerns that emerge. Would courts be flooded thanks to the ease? Would this not affect children as parents can be encouraged to go gung-ho and split up left right and any other way? Would this not affect the right of maintenance for the wife? The situation will not be as bleak as the nay-Sayers would like to believe I’m afraid. Couples will not run amok to break up, only the ones who really want to can have it easier now. Childrens’ interests will not be compromised any more than by allowing a bitter couple to continue. Maintenance could be a problem true, but this is not at the stage of seeking divorce. Women generally refrain from divorces as they are not financially independent. But if they do take the step to seek divorce, courts cannot deny them the right of maintenance if their situation warrants it.
Even as the Indian media is concerned with the effect the amendments will have on the sacred relationship of marriages and the almost contractual treatment of them, the state of New York is also debating the bill (which is awaiting the governor’s approval) that will allow no-fault divorces. It will be interesting to see how the laws pan out in these two different societies, with seemingly different approaches to marriage but with equal trepidation and hope.
Perhaps the amendments will only affect a select few, but if the law is capable of making life easier for just those few, it should. The initiative of the government shows that we are probably finally inching towards a greater acceptance of individual happiness over societal expectations, if only slightly.
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[...] broken down irretrievably exists among many, albeit not of the same nature as SAFF. I had posted earlier about how this new ground for divorce will make things easier for those who want to get out of a [...]