Divorce law in India remains a site of daily tragedy
Mr X and Ms Y fell in love and got married. They moved abroad and had three children. Unfortunately, things went awry and X filed for divorce in India, claiming an irretrievable breakdown of the marriage. He contended that Y had inflicted physical and mental cruelty on him. Y vehemently opposed the divorce and countered that X had been an irresponsible husband and had been in an extra-marital affair. They had been living apart for five years by this time.
Any responsive and modern family law regime should, in such circumstances, consider divorce a given and focus its energies on ensuring equitable economic consequences for the spouses and maximising the welfare of the children. But when faced with such a matrix in a recent case, the Kerala High Court denied divorce and concluded that none of the ‘fault’ grounds for seeking it was met. Moreover, the husband had seemingly indulged in an “unholy alliance” by having an extra-marital affair and, thus could not “benefit” from it.
This is the tragedy of divorce law in India, where courts condemn couples to perpetual unhappiness. Currently, Hindu, Christian and secular marriage laws only recognise divorce on fault grounds. A successful divorce requires proving that the other spouse committed a legal fault. While legislative amendments have introduced mutual consent divorce, laws still do not recognise a unilateral divorce based on the irretrievable breakdown of a marriage. Recently, a Constitution Bench concluded hearings on whether it should grant a unilateral divorce, and, if so, when and under what factual circumstances should such divorces be granted? It was argued that if the Indian Constitution recognised an individual’s right to marry, there had to be a corresponding right to exit the marriage as well. These arguments build on the court’s jurisprudence on the right to privacy and the decriminalisation of homosexuality, where it emphasised the autonomy of individuals to make intimate decisions. But apart from constitutional arguments, there are reasons rooted in family law and policy which strongly advocate for a no fault, unilateral divorce regime in India.
Requiring parties to prove fault unnecessarily prolongs marital dispute and relies excessively on judicial discretion. While judges routinely exercise discretion, in family law, this needs fact-intensive queries in high-conflict, interpersonal disputes where establishing bright lines is almost impossible. Moreover, it incentivises the spouses to become adversarial and, rather than promoting long term relationships, only fosters discord. It also diverts judicial time and energy in the pointless pursuit of establishing fault rather than concentrating on spousal economic dependency and the welfare of children. For the sake of argument, even if one assumes a governmental interest in preserving marriage and promoting rapprochement between spouses, the current fault-based divorce regime serves no such purpose. Alternative policy instruments like mandatory pre-divorce mediation or a cooling-off period before unilateral divorce are more useful.
In family law, the excessive focus on fault has diverted policy attention from significant reform questions, such as the need to legally value the spouses’ contributions to marriage while determining post-divorce economic support or ensuring fair parental access in bringing up children. Further, debates that reduce family law reforms to a zero-sum choice between a Uniform Civil Code and patriarchal and religious identity-based personal law also shift focus from more concrete legal and policy conundrums in family law.
Consequently, divorce law in India remains a site of daily tragedy. While the Supreme Court has reserved its judgment on its powers to grant a divorce upon their retrievable breakdown of marriage, a judicial resolution of the issue may only serve a limited purpose. Most litigants simply do not have the wherewithal to go up to the Supreme Court to resolve their marital disputes. Lawmakers must give family law policy the serious attention it deserves.
Akshat Agarwal is a doctoral candidate at Yale Law School. Views are personal
Source: The Telegraph. 1/12/22
