Table of Contents
Meaning of the term “Divorce”
When a married couple gets legally separated and ends its married life, they are said to be divorced. It is not evident that every marriage is bound to work and also it is not a compulsion for a couple to make it work. A married couple faces lots of ups and downs in their life as these are a part of life.
A Divorce is the legal dissolution of the marital union of a man and a woman. Divorce is granted by the court to married couple according to the relevant acts falling within the ambit of their respective religion. Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955; the same for Christians is governed by the Indian Divorce Act, 1869; Muslims by the Dissolution of Muslim Marriages Act, 1939; Parsis by the Parsi Marriage and Divorce Act, 1936; and the civil and inter-community marriages by the Special Marriage Act, 1954.
Ways to get a divorce in India
Following are some of the grounds for seeking divorce under various Acts:
Hindu Marriage Act, 1955
- Adultery
- Desertion
- Cruelty
- Insanity
- Wife’s Special ground for Divorce
- Mutual-Consent
Special Marriage Act, 1954
- Adultery
- 2 years Desertion
- Cruelty
- Leprosy
- Veneral Disfunction
These were basically some of the common grounds for seeking divorce. These are basically usable in all of the mentioned Acts. It is not necessary that either of the partners need to have or have done the mentioned events/activities/problems, sometimes husband and wife resort towards divorce because of lack of understanding, frequent quarrels, lack of synergy, etc. To encapsulate all these reasons there is provision for divorce in India that is known as Divorce by Mutual Consent where a marriage has been “Irretrievably Broken Down”, i.e. “Irretrievable Breakdown” of marriage. The Mutual Consent divorce has been given under Hindu Marriage Act, 1955 and also there is a mention of the same in the Section 10A of the Indian Divorce Act, 1869. This provision is there in other acts also. For a married couple to be able to file a petition for divorce under Mutual Consent, they must live apart for at least one year before filing for the same.
No-Fault Divorce and its need
Even after having the provision for Mutual Consent Divorce in India, there was a need for a separate provision that could grant divorce due to the same reason but which is more modernized in nature. No-fault divorce was much needed in the Indian Law as it is evident that failure of each and every marriage, i.e. divorce could not arise only from certain cheating done by one of the spouse, one of the spouse having certain disease or dysfunctionality, desertion etc. It could be possible and infact it is possible that the married couple is no longer being able to live together, hold onto their marriage due to differences and frequent quarrels between them.
Before the introduction of No- Fault Divorce, there was too much of playing of “victim card” by one of the spouse. One among the spouses always played the victim card that he/she assaulted me or he/she was cruel to me or he/she has done adultery. In order to take divorce one of the spouse always tried to blame the other so that they could get divorce even if none among them have committed it. People did so as there was no provision which could help in their divorce grant in cases of “irretrievable breakdown” of marriage.
Hence its need was felt to grant to couples looking forward to a divorce a reason which would not either defame the other spouse or get him/her charged with false accusations. So, in order to reduce the perjury (the offence of willfully telling an untruth or making a misrepresentation under oath) in the legal system, No- Fault Divorce was introduced.
Now, how is it better than Mutual Consent Divorce?
In Mutual Consent Divorce both the husband and the wife need to have a mutual consent to take a divorce and get legally separated.
But what if one of the two does not agree to this mutual consent? Or what is one of the two is forcing the other to remain married?
In these circumstances the Mutual Consent Divorce would not prove to be fruitful and helpful and that is why the provision of the No – Fault Divorce was introduced as in this, anyone, i.e. husband or the wife can file for a divorce without having mutual consent as once it is proved that their marriage has been “irretrievably broken down” then the divorce is granted.
Introduction of the No-Fault Divorce in India
An amendment to the Marriage Law (Amendment), 2010 was approved the Rajya Sabha that granted both men and women to file for a divorce in case of “irretrievable breakdown” of marriage. Both the husband and the wife need to stay apart from each other for atleast three years before being able to file a petition for seeking a divorce on the basis of No – Fault Divorce or “Irretrievable breakdown” of marriage. The various conclusions of the mentioned bill are as follows:
- The same ground for divorce shall not be available under either Hindu Marriage Act, 1955 or the Special Marriage Act, 1954.
- Through the proposed amendment, it was aimed at accelerating the divorce procedure in India. In addition to this, it was also aimed at providing relief to the married couple already suffering from mental stress and agony due to “irretrievable breakdown” of marriage.
- It was proposed to waive off the cooling period granted to the parties that is of six months and the same shall be decided by the courts on case-to-case basis.
Conclusion
Hence No-Fault Divorce can be regarded as a ground for divorce which is very basic yet very helpful and fruitful to the Legal System. It is very modern in nature as it can be said to be the filling of the last gap which was needed from a very long time as far as the Divorce Laws are concerned. It further facilitates to reduce the perjury in the legal system (specifically connected in circumstances of divorce petitions) as well as helps some people to get a divorce without getting one among the couple (to be divorced) being charged with false accusations and thereby maintaining his/her dignity.
