The law on divorce in India is based on the ‘fault theory’ while the reality could be that ‘two good very persons cannot always be good partners’, a bench said. Ending a marriage should not require proving the fault of one of the spouses, it added. The bench was hearing a bunch of petitions pertaining to the Supreme Court’s power to grant divorce on the ground of irretrievable breakdown of relationships.
‘What is fault [in such cases]? Somebody will say that she does not wake up in the morning and give my parents tea, is it a fault theory? Lots of them arise from social norms’, lamented the bench. Irretrievable breakdown of marriage is not a ground available under the law for couples seeking separation but the Supreme Court, through a raft of orders, has been granting decrees of divorce.
Whether the Supreme Court should use its authority under Article 142 to grant divorce without referring the parties to a family court will be examined by the Constitution bench. A lower court had asked the Supreme Court to look at the matter in 2016. In order to help the bench, it nominated senior attorneys Indira Jaising, V Giri, Dushyant Dave, and Meenakshi Arora as amicus curiae. Senior attorney Jaising made his case for divorce on the basis of the marriage’s irretrievable disintegration on Wednesday.
Divorce is based on the fault theory but irretrievable breakdown is a ground reality, the bench of India’s top court has said. The law commission made recommendations in 1978, and again in 2010 to add irreferable breakdown of marriage as a new ground for divorce in both the Hindu Marriage Act and the Special Marriage Act. However, the bill was never passed by the parliament.
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