A Watershed Moment: SC Order on Divorce Makes Room for Dignity, Mitigates Stigma

This can prove to be a lot more dignified for the parties and reduce unnecessary litigation on the courts.

6 min read
Hindi Female

The impassioned arguments by various legal luminaries before the Supreme Court of India in the #MarriageEquality case seems to be a constant on many of our screens these days. It indeed is momentous in the larger landscape of gender empowerment in India.

Heartening as this may be, freedom of choice in the country remains far from the ideal even to this day. 

For instance, while one group of citizens agitate to overcome the legal shackles to marrying their loved one, another group suffers in silence, often enduring unspeakable abuse because again the law of the land makes it rather arduous to break a marriage, no matter how untenable it may be.

Earlier this month, a judgment by the Supreme Court of India threw light on the reality of divorce processes in India. 

This can prove to be a lot more dignified for the parties and reduce unnecessary litigation on the courts.

Does India’s Divorce Rate Truly Capture the Ground Reality?

The latest Census data, conducted in 2011 revealed that while the rate of divorce in India stood at less than 1%, the percentage of couples who were separated was triple the number. This implied that despite the will to discontinue a marital relationship, couples either are forced to wait for a prolonged period of time for the divorce to finalise or simply opt to stay separately to avoid the flurry of social stigma and legal hassle.  

Now, divorce is an emotionally and legally difficult experience for anyone going through it and it’s never a unilinear process. Divorce takes on many forms, one of which is divorce by mutual consent wherein the couple mutually agree to dissolve the marriage. 

While this form of divorce may be relatively easier to navigate and usually encompasses a shorter span procedurally, this too can be a lengthy and  complicated process, in objective terms.

In a judgment that came earlier this month (Shilpa Sailesh v. Varun Sreenivasan), the Supreme Court of India introduced two significant changes to the existing statutory laws around divorce.

Firstly, it legitimised “irretrievable breakdown of marriage” as a ground for divorce, despite opposition from either of the parties; and secondly, it recognised the possibility of waiving off the mandatory six months long “cooling period” for couples seeking divorce under Hindu Laws.

This can prove to be a lot more dignified for the parties and reduce unnecessary litigation on the courts.

What Are The Current Laws on Divorce in India?

In India, laws around marriage and divorce are governed largely by the religious laws like Hindu Marriage Act,1955, the Indian Christian Marriage Act, 1872 and the relevant Muslim laws with the exception of the Special Marriage Act, 1954 wherein the divorce procedures apply to interfaith couples who have registered their marriage under the said Act. 

In the current case, the Supreme Court was hearing a bunch of petitions seeking divorce under the provisions of the Hindu Marriage Act,1955 along with a prayer to remove the “cooling period”. 

The Hindu Marriage Act has substantially evolved over the the years with regards to provisions on divorce. Sections 13 (1) and (2) of the Act list down the grounds on which divorce can be sought by the husband and wife respectively. 

These grounds can broadly be enlisted as adultery, cruelty, desertion and one of the parties being of unsound mind. 

In 1976, the Act was amended to include “mutual consent” as a ground for divorce under section 13-B. Under this section, parties could jointly file for a divorce citing that they have been either living separately for over a year or are unable to cohabit and that they mutually agree that the marriage should be dissolved.

This is where the process gets arduous. 

Following the filing of the first application, the parties are required to file a second application before a competent court after at least 6 months but not later than 18 months from the date of the first application. 

This is known as the mandatory cooling period during which the couple is expected to either reconcile or reaffirm their intention to divorce. 

The courts typically finalise the decree of divorce only after the cooling period. 

While the introduction of "mutual consent" recognised a ground for divorce that did not necessarily impugn either of the parties; the cooling period has proved too cumbersome and acrimonious to the parties on several occasions. 

This is because a marriage may have ended for all intents and purposes before the cooling period but the parties are forced to sustain the burden of the relationship for a mere legal requirement, often at the cost of mental health, safety issues, disputes regarding custody and alimony. 

The Supreme Court took notice of such nuances and pronounced remedies for this sort of dissonances between the ground reality and the statute, invoking its powers (to pass any orders/decrees for the purpose of 'complete justice')  under Article 142 (1).


Some Pertinent Factors

This is a watershed moment, since divorce just based on complete and irreversible ending of a marriage was not recognised by the Indian laws earlier.  

The court observed that this was in the best interest of the parties and alleviated the suffering frequently resulting from the cooling period. 

The court however cautioned that such decrees can only be passed with discretion, after considering the following factors:

1. The period of cohabitation after marriage;

2 Since when did the couple stop living together;

3. The nature of allegations and charges made by the parties against each other and their family members;

4. The course of the ongoing legal proceedings including the orders passed so far and their impact on the relationships of the parties;

5. Whether any attempts to mediation and settlement of disputes were made;

6. Whether the period of separation is sufficiently long or not; if the couple is separated for more than six years, it will be held a relevant factor while arriving at the decision.

The court also ordained that in case of applications under section 13-B of the Hindu Marriage Act, 1955, a competent court, which will be a district level family court, normally, may consider waiving off the mandatory cooling period of six months in cases where they are duly convinced that it is impossible to continue the marriage. 

This must however be done after exercising caution and factoring the unique facts of the matter. 

This can prove to be a lot more dignified for the parties and reduce unnecessary litigation on the courts.

Why This Judgment Matters

This can prove to be a lot more dignified for the parties and reduce unnecessary litigation on the courts.

Two of the most immediate impacts of this judgment are that couples seeking divorce under the Hindu Marriage Act, 1955 may be allowed to opt out of the cooling period and that couples no longer have to “find fault” with their partners to file divorce and simply state “irretrievable breakdown of marriage” as a valid ground for seeking divorce. 

This can prove to be a lot more dignified for the parties and reduce the burden of unnecessary litigation on the courts. 

In the larger scheme of things, this recognition by the Supreme Court can go a long way in mitigating the stigma around divorce and making the process a lot more seamless and sensitive. 

(Yashaswini works as the Outreach Lead at Nyaaya, an initiative of Vidhi Centre For Legal Policy to provide simple, actionable, reliable, accessible legal information for all. She holds a law degree from SOAS, University of London. She tweets at @yashaswini_1010. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)

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