Why India Needs To Re-think Its Divorce Laws

Recently the Kerala High Court struck down the centuries-old Divorce Act 1869, which mandates one year or more for Christians to file for divorce by mutual consent. The Division bench of the High Court held the provision to be unconstitutional and violative of fundamental rights. While the judgement of the High Court will be welcomed and appreciated by the progressive generation, the contemporary reality is that the divorce laws in India are traditional and orthodox, where getting a divorce is challenged not only by society but also by the judicial process.

For the longest time in India, divorce was not even an option as marriage was seen as a relation of seven lifetimes. It was only in 1955 that the Hindu Marriage Act laid down grounds for divorce in India, but that too with strict conditions such as waiting for one year to file for divorce, limited grounds and, of course the controversial restitution of conjugal rights provision where spouses were forced to reside with the very same person they wanted to leave. There have been numerous cases where the wives have been raped and subjected to torture after the court ordered restitution of conjugal rights under Section 9 of the Hindu Marriage Act.

While the Supreme Court in 1984 held that Constitutional law principles do not apply to matters of marriage, the position changed when the Supreme Court, in the cases of Shayaro Bano v. Union of India and Joseph Shine v. Union of India, applied constitutional provisions to reach its decision.

In the Saroj Rani case, the Supreme Court viewed Section of HMA as a provision that

“serves a social purpose as an aid to the prevention of break-up of marriage”.  

Time and again, our top courts have made observations about the holy nature of marriage in Indian culture and have expressed their dismay with the so-called “use and throw” culture. It can be understood that the courts, just like our society, have an opinion about marriages and the courts, too have an approach where they try to keep the marriage alive. But the question is why a couple is asked to endeavour to save their marriage alive when they do not want to stay in that marriage. We have attached the nature of sacredness with the institution of marriage, which often makes us forget that there are broken marriages where two people are struggling every day and getting a divorce is not breaking their family but giving them a new chance at life. What the Court is referring to as everyday use and throw culture can also be viewed as the culture where individuals have the autonomy to get into and get out of relationships by exercising their choice.

A nine-judge bench of the Supreme Court held the Right to Privacy as a fundamental right in the KS Puttaswamy judgement.

In the same judgement, the Chief Justice of India made vital observations and held that:

“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.  Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”

The same judgement which recognised the right to marriage also was careful to include the principle that right to autonomy and choice are just as sacrosanct and fundamental to an individual’s life.

Recently, Sr. Advocate Indira Jaising raised substantial questions in front of the Supreme Court and rightly pointed out that the right to exit a marriage would be covered under Article 19 (1)(c) read with Article 21. Arguments about social norms changing with time have also been put forward in front of the Apex Court.

While the Hindu Marriage Act does provide for divorce within a year in case of “exceptional hardship or exceptional depravity”, courts have shown a lot of reluctance in granting divorce under exceptional circumstances and proving the same is also a hardship for the couple or the individual.

Developed countries such as the US and UK have the irretrievable breakdown of marriage as a ground of divorce and individuals, but India does not have such ground. Moreover, obtaining a divorce under other grounds adds more gravitas to the already suffering parties of a broken marriage.

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The law commission recommended in 1978 and again in 2010 that the Hindu Marriage Act and the Special Marriage Act should include an irretrievable breakdown of marriage as a new ground for divorce. The recommendation resulted in the Marriage Laws (Amendment) Bill of 2013. However, the bill was never passed. The plea challenging the restitution of conjugal rights remains pending in the Apex Court.

While the values and traditions of India suggest a marriage of seven births at the same time, we cannot turn blind eyes to domestic abuse, toxic relations, abusive marriages and the taboo around divorce, which is the reality of the same society. We need to ask ourselves what is more important: our obsession with being a highly moral cultural society or our need to be a democracy where individual autonomy and choice are paramount?

Rashika Bodh is a BA LLB (Hons.) 3rd Year student. The views expressed are the author's own.