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Society & Culture Around Town Book Excerpts Vigyapanti The Dating Story

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Why Indian law protects the institution of marriage more than the people inside it

A marriage that has ended deserves a graceful exit – not a pointless battle over who killed it. India has come close to accepting this, but our laws are yet to keep up.

The Supreme Court dissolved a marriage earlier this month that had been over for 15 years. For the divorce to go through, the bench first had to label it “a dead relationship, which has already decayed and is decomposing day by day, creating foul sociological, psychological and mental hollowness in life.” Only then could the parting couple be allowed to sever ties. 

In its judgment, the Supreme Court observed that the prolonged process was a “denial of a free and independent environment to flourish” and the court must release “the parties from a stale and frozen relationship.” The judgment itself relied on another case, Rakesh Raman vs Kavita, 2023 and held that “cruelty as a fault, may not be attributable to one party alone and hence despite irretrievable breakdown of marriage keeping the parties together amounts to cruelty on both sides.” 

Most Indians, however, do not have the fortune or means to go to the Supreme Court to settle their divorce cases. They shouldn’t have to. 

Section 13B of the Hindu Marriage Act allows divorce by mutual consent: Once both spouses sign on, the court mandates a six-month “cooling-off period”, and only after that is the marriage deemed over. However, the only other direction that the law offers is a fault-based or contested divorce, where the petitioning spouse has to establish a wrong, such as cruelty, desertion, adultery, mental disorder, or even conversion to another religion.

Backdated Indian laws 

As this editorial in the Indian Express points out, “Where consent is unavailable, parties must establish, if not invent, a matrimonial wrong. In the process, ordinary discord acquires criminal colour and relationships that have simply become unworkable are recast as adversarial contests over fault.”

Most democratic countries have already recognised the reality of “unworkable relationships”. The UK legislated no-fault divorce in 2020 after years of campaigning by the legal community. It came into effect two years later. Australia did it in 1975. In 2010, New York became the last American state to bring in no-fault divorce, ending a 40-year-old process that began in California in 1970. 

A marriage that has ended deserves a graceful exit – not a........

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