The Supreme Court recently agreed to look into two public interest petitions that relate to the legal grounds for divorce, maintenance and alimony. The petitions seek that these grounds be made uniform across all religions.

I agree with the call for uniformity in grounds for granting maintenance and alimony. But I say that the petitions are misdirected so far as divorce is concerned. The petitions should instead ask for scrapping all grounds for divorce, across communities. In this article, I explain why.

Personal or religious laws largely govern divorce in India. These include Hindu, Muslim, Parsi and Christian laws. The Special Marriage Act, 1956, governs divorces in civil and inter-faith marriages.

Both personal and ‘special’ laws provide for two types of divorce: divorce by mutual consent, and one-sided divorce.

Divorce by mutual consent is a self-explanatory phrase. It is also the simplest manner of ending a marriage. In case of a one-sided divorce, however, all laws list certain grounds. A person needs to prove at least one legal ground for the court to order such a divorce. Some grounds are common across all laws, while some differ. The most commonly listed grounds are:

• Adultery

• Desertion

• Insanity

• Conversion

• Renunciation

• Cruelty

• Venereal disease

• Presumption of death

As is clear, the grounds are largely based on the ‘fault theory’. A person can get a divorce if they prove to the court that their spouse was at fault in any of these ways.

The grounds for divorce violate the individual right to privacy and lead to social stigma

The law essentially requires a person to name and prove to the court the fault of their spouse. The lawmakers obviously built this rule into our laws to discourage and avoid divorce. And that is because our society places great value in the institution of marriage. But this rule violates the fundamental right to privacy of an individual and also unnecessarily stigmatises divorce.

One-sided divorce is also called ‘contested divorce’. That name encapsulates the basic flaw of the fault theory. If one were to pinpoint a fault of their spouse to them in private, it is likely that they will argue in defence. Then, filing for divorce citing one of the above grounds is equal to shouting out your spouse’s fault in public. This leaves hardly any doubt that your spouse is going to contest your petition tooth and nail. In turn, your spouse is likely to publicise a few faults of your own. It is this mud-slinging which has perhaps made ‘divorce’ the ugly patch on one’s bio-data.

The grounds for divorce are subjective

True, the Supreme Court has recognised a special ground for divorce, not based on the fault theory. It is the ground of ‘irretrievable breakdown of marriage’. But only the Supreme Court may grant a divorce on this ground and that too when it is convinced ‘that there is absolutely no chance of the marriage surviving’.

In a 2011 case, the Supreme Court observed that there was bitterness between husband and wife. They had not lived together for eleven years. The husband wanted the marriage to end. But the wife was willing to stay with the husband for the sake of their daughter. Based on this fact, the Court held that there was hope for revival of the marriage.

“Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably", the Court said.

I know of another case where the couple separated barely eight months after marriage. But they are legally married to each other for over three years now. The man is not willing to live with the wife, while the wife is not willing to grant a divorce. He applied to the court for divorce on the ground of mental cruelty by the wife. The court refused to grant the divorce. The reason given was that the man did not prove the wife’s mental cruelty to the court’s satisfaction. The case drags on in the appellate court, and the pandemic does not help either. The couple waits, each of them for a judicial decision in their favour.

The problem here is the subjectivity involved in a decision on divorce. There can be several layers to why a person no longer wishes to continue with their marriage. As such, how can a judge be qualified enough to decide whether a person is unhappy enough in a marriage?

The grounds for divorce violate the fundamental right to personal liberty

I got thinking about why the wives in both these cases wanted to stay in the marriage. Their financial interest, or a child’s, could have been protected under the law even after divorce. What exactly stopped them from leaving an unhappy marriage? If it was only the desire to hold on, why does Indian law aid this unhealthy desire?

In both cases, was it likely that the couple would go back to living happily together? Was even the wife likely to find happiness again in the marriage? If not, then what is the purpose law is serving here? Saving the ‘institution’ of marriage at the cost of the happiness of both participants?

None of us wants the divorce rates in India to be as high as in the Western world. But is that a bigger consideration than individual liberty? Is ranking social bonds over individual well-being the right thing to do for any legal system?

I say our divorce laws are violative of Indian constitutional principles too. They restrict a person’s fundamental right to life and personal liberty and with no reasonable basis. Why should a person need to fight a battle for divorce if they do not want to live with their spouse anymore? I can understand a legal contest over custody of children and maintenance amounts. But contesting a divorce is like forcing one’s spouse to stay married against their will. And laws enabling such encroachment on freedom are the antithesis of our Constitution.

Grounds for divorce are misused

Haven’t we all heard about cases where the divorce law is misused as a bargaining chip to exact high amounts of alimony? Or to keep custody of children, or simply to blackmail or harass?

Unfortunately, Indian courts and the legislature have been too conservative on divorce. They have been moving in a completely different direction so far. For instance, triple talaq in Muslim law was an exception to the current laws on divorce. It allowed unilateral, no-cause divorce. But triple talaq has now been criminalised. I agree that the triple talaq system was unconstitutional. It only allowed the privilege to men and discriminated against women. Still, the right thing to do may have been for the legislature to extend the right to both sexes, in all religions.

The legislature still has that prerogative. I can only hope that the grounds pleaded here for having no grounds for divorce at all, weigh with our lawmakers.

But just in case our lawmakers are hopeless romantics like the ones we find in Bollywood and don’t agree with divorce for the greater cause of ‘love’, then here is something for them to remember. It is always open for the two people to remarry each other if they change their minds post-divorce. That rarely happens outside of movies, though.

The author is a practicing lawyer at Indore, Madhya Pradesh and blogs at The Neha Vijayvargiya Blog.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.