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By Pavitra Sudhir Kanchan
I. Introduction
Marriages are made in heaven, they say, but a modern marriage being complex and vulnerable, the institution of divorce is as important today as is the institution of marriage.[1] Hindu laws suggest that marriages last beyond one’s lifetime, and hence, it was used as a justification for prohibiting widow remarriage. Christians also believe in the theory of marriages lasting beyond lifetimes; however, they permitted widow remarriage. Sharia law does not recognise celibacy, i.e., remaining unmarried. However, only a man is permitted to leave a marriage, after which the woman must follow the idat (period of waiting) period. Sharia law also has the option of khula (mutual consent divorce), which the wife can initiate, but the husband must agree to it for the divorce to take place.[2]
Many spouses in India prefer to keep their marital status via judicial separation instead of divorce, owing to the social stigma surrounding divorce. HMA Sec. 13A[3] gives the courts the power for the same. Judicial separation aside, most divorces in India and abroad are ‘fault-based’, i.e., it must be the fault of one party that compels the other to seek a dissolution of the marriage upon reaching the last straw. However, human relationships are much more complex than that. What about cases where both parties are cordial and respectful of each other, but simply have different life goals? That is where mutual consent divorce comes in. In India, spouses, especially the wives, are taught by their family, their in-laws, and society as a whole, that women must endure all sorts of ill-treatment by their husbands because it is their ‘duty as a wife’ to uphold the ‘institution of marriage’. However, if both parties are not mature enough to inculcate good communication skills and express their emotions unhealthily to each other, this can result in deep resentment after years of unresolved issues. When the spouses' life reaches such a stage that each has its way, when there is constant bickering and nagging, and when there is no mutual affection and trust, it may be presumed that the marriage has failed. Under such conditions, neither sexual fidelity is possible nor are the interests of the children secure.[4] This is called the ‘Irretrievable Breakdown of Marriage’ (‘IBM’). This research paper aims to explore the socio-economic factors that influence divorce rates in India, cover the historical evolution of IBM in India as well as other jurisdictions, and critically analyse existing laws and case laws.
II. Influence of Socio-Economic Factors on Divorce Rates in India
The degree of social, economic, and moral support available for divorced women plays a vital role in determining divorce rates.[5] When referring to the most recent census taken in India in 2011[6] (the census scheduled for 2021 did not take place due to the COVID–19 Pandemic, and later the central elections in 2024), we see that 0.11% of the total population of India is divorced, i.e., 1.36 million people. That being said, the number of separated people is almost thrice as that of divorced people, i.e., 0.29%. Moreover, more women are divorced and separated than men. It is relevant to note that the accuracy of the data may be hindered due to the social stigma of being labelled as ‘divorced’ or ‘separated’ and the slow nature of Indian courts in providing decrees. Additionally, the rate of pre-marital live-in relationships in India is extremely low in comparison to other jurisdictions. The difference between male and female rates of divorce and separation suggests that women tend to remain single after the collapse of their previous marriage or that men are able to re-marry with greater ease in comparison to women. The gap between the rural and urban divorce and separation rates is interestingly low. Most of the states with the highest divorce and separation rates are from the northeast region, which has matrilineal systems of society and allows informal relationships outside of monogamous marriages. Meanwhile, states such as Uttar Pradesh, Bihar, Haryana, and Rajasthan, which have deeply patriarchal systems, have the lowest divorce and separation rates.[7]
A record based descriptive study taken between 2012 and 2014 using 125 cases via records of Solapur’s (city in Maharashtra, India) sole family court suggested that a majority of divorced couples (80.8%) were from urban areas and followed Hinduism (92.8%). This is in contrast to the 2011 census, which suggested that there was not much of a gap between urban and rural divorce and separation rates, however, it is necessary to consider the fact that the sample size in the present study is merely 125 cases, in comparison to the large scale census of 2011. It is important to note that religions such as Islam have different forums to deal with matrimonial matters, such as ‘Kazi’ or ‘Qazi’ courts, and hence this statistic is not entirely accurate. Further, a majority of couples were divorced within 1-4 years of marriage (50.4%), with a steady decline as the time period of marriage increases. This suggested that the longer a couple stays married, the longer they remain married. Another important statistic is that 71.2% of the couples seeking divorce did not have children, after which 20.8% had one child. This may suggest that having children may be an incentive to continue the marriage. Moreover, 60.8% of divorced women were married between the ages of 18-22, with a steady decrease over the years, barring those women who were married under the age of 18 (0.8%). This may suggest that the marriages of those women were either premature decisions or perhaps arranged marriages pressured by family members and ‘well-wishers’. This statistic however is not entirely accurate either, considering that the age of marriage for women in India is 18, and has been so since 1978. Hence, it is possible for the couples appearing in court to lie about the woman’s age upon marriage being above 18 to hide the real age. It is important that the highest number of divorces were from couples who earned less than Rs. 10,000 per month (32.8%), with a steady decline as the income increased. This may suggest heightened disputes between low-income couples regarding finances and expenses. Alternatively, it could also be interpreted that when there is a sole provider among couples, the other party, often the woman, might be dissuaded from filing for divorce owing to financial dependency on the earning spouse, often the man. Interestingly, although only 2.4% of divorces were initiated by both parties together, 26.4% of divorces were on the grounds of mutual consent. The highest divorces occurred in couples where the man was more educated than the woman (46.4%), followed closely by those where both parties were equally educated (42.2%). This need not necessarily mean that educational differences play a role in divorces, especially considering that in India, it is a societal norm for the man to be the breadwinner and the woman to be the homemaker and child rearer; hence, having the notion that women need not be highly educated. However, considering that 42.2% of the couples are equally educated, it showcases that this practice is slowly but surely evolving with the times. This study concluded that ‘lower income’ for both parties was the main factor for divorce.[8]
There is a possible association between the marital couples’ children’s sex composition and the marriage disruption, especially in countries like India, where the society historically prefers male children. The study published by the National Council on Family Relations provides statistics that having at least one son significantly reduces the risk of marital disruption among Indian women at lower parities. However, the divorce-inhibiting effect of having sons is largely invariant across sub-groups of Indian women.[9]
During the COVID-19 pandemic, research in most countries suggested that there was a significant increase in violence against women and children, while a few countries were reported to have had no change/negligible change in the levels of violence. However, India led to mixed results in domestic violence. There was still an increase in spousal violence in India, including physical, sexual, verbal, and emotional violence, as well as in violence against women in general. In a 2022 study, it was found that the educational levels of both the victim and the perpetrator were negatively associated with the violence, while pregnancy, past divorce of a spouse, loss of job/income of either party and extra-marital affairs were positively associated. Alternatively, a 2021 study suggested that higher education for both parties decreased the risk of violence. In another 2021 study, it was found that alcohol also had a prominent role to play in violence levels during the pandemic.[10]
III. Evolution of Caselaws on IBM in India
The judge of T. Sareetha v. Venkata Subbaih in the year 1983 at the Andhra Pradesh High Court[11] believed that Restitution of Conjugal Rights (re-establishment of marital cohabitation via a court order/decree) is 'uncivilized and barbaric by coercing sexual intercourse’, and therefore, infringing on the reproductive rights of a married woman. Since marital rape is not recognised by law, consent is not explored in the privacy of a matrimonial home.[12] In the Delhi High Court case of Havinder Kaur v. Harmander Singh in 1984[13], the judge states that the judge in the case of T. Sareetha[14] is ‘sex-obsessed’. He explains that a consortium includes affection, love, companionship, mutual services, and sexual cohabitation. It is not a mere animalistic pleasure. Further, he elaborates that all matrimonial remedies end the marriage except for the restitution of conjugal rights. Ordinary wear and tear of a marriage can be restored by the Restitution of Conjugal Rights. Otherwise, there is a ‘breakdown of marriage’. The judge brings attention to Sec. 13 (1A) of HMA[15], where either party can file for divorce if restitution of conjugal rights is not fulfilled within one year. Therefore, restitution of conjugal rights can be a steppingstone for divorce, and the aforementioned section provides limited recognition for the ‘breakdown theory’. Lastly, the judge states that intervention within a marriage should be legislative and that it is not within the role of a judge. He refers to a Telugu catchphrase, which roughly translates to ‘burn a house down to catch a rat’, in order to explain that the court must not intervene in the bedroom of a married couple. [16]
In the case of Yousuf Rawther v. Sowramma, a 1971 case of the Kerala High Court[17], a teenage Hanafi (one of the four schools of Sunni Islam) girl was married to a man twice her age. When he was out of town, she returned to her parental home and refused to return. After two years, she filed for divorce, stating he did not maintain her. He contended that he wanted to maintain her, but she withdrew unreasonably. In this case, the court held that Muslim law recognises the capacity for dissolution of a failing marriage. Airing the dirty laundry, i.e., investigation, is not required to explain why a marriage is not working. Blame on the wife should not play a role in Sec. 2 (ii) of the DMMA[18], and one cannot insert qualifications such as ‘reasonableness’ and ‘unreasonableness’ into a statute. [19]
The case of Naveen Kohli v. Neelu Kohli, 2006 Supreme Court[20], was one of the first cases to acknowledge IBM. In this case, the wife was committing adultery, however, she filed multiple cases against her husband, including under the Indian Penal Code in multiple police stations, and to the Company Law Board who closed her cases for irrelevance. Oddly enough, she wants him to be in jail but does not want divorce from him. The court here acknowledges that merely pursuing a legal matter does not amount to cruelty. Further, the door of cruelty should not be as wide as understanding ‘temperamental incapability’ as cruelty. It held that cruelty must be distinguished from ‘normal wear and tear of a marriage’, and that ‘mental cruelty’, although included within the ambit of ‘cruelty’, is intentionally not included within the definition under the HMA[21] to account for factors such as social strata and continuity. The court believed it was impossible for the couple to return to normal marital life following recent events and, therefore, granted them divorce on the grounds of IBM read with Art. 142 of the Constitution of India[22] allows the Supreme Court to pass any order/decree necessary for ‘complete justice’. [23]
In the case of V. Bhagat v. D. Bhagat, 1993 Supreme Court[24], the court states that IBM should become a legally valid ground for divorce.[25] Further, it reiterated the same as discussed in the Law Commission Reports 71[26] and 217[27], which were passed by both houses of parliament but have not been implemented yet. The 71st report suggests that 3 years of separation and evidence that there is no hope for reconciliation should be grounds for IBM. [28] Samar Ghosh v. Jaya Ghosh, a 2007 Supreme Court case[29], alternatively believed that IBM might encourage abandonment and may deprive social support for the abandoned spouse.[30]
IV. Divorce in Other Jurisdictions
As of 1993, Australia only grants divorce based on no-fault and IBM. Germany and Jamaica allow only for no-fault based divorce; however, a one-year separation period is necessary. New Zealand is on similar lines; however, it requires a two-year separation period instead of one year. Algeria allows men to divorce based on any ‘good reason’, women may divorce based on fault, and both may avail divorce by mutual consent. In Brazil, fault based divorce can be granted at any time after marriage, but no-fault divorce can only be granted after two years of marriage has been completed. Canadian laws allow for no-fault divorce as well as fault based divorce upon one year of separation. Netherlands allows for no-fault divorce only and provides a rapid procedure if the parties cooperate. South Africa grants divorce based on no-fault, mental illness of a spouse, as well as permanent unconsciousness of a spouse. Sweden’s laws state that divorce can only be granted on no-fault grounds; divorce cannot be granted until the expiration of the six months of reconsideration if either party opposes the divorce or has a child under the age of sixteen. This reconsideration period, however, does not apply if the parties have been separated for two or more years. The United States of America has no-fault divorce in all fifty states, as well as fault-based grounds in most of its states. Nigeria, interestingly, has a statutory law for monogamous marriages, which allows for IBM, in which most breakdowns are due to faults. Alternatively, in Nigeria’s customary laws, in which polygamy is permissible in most tribes, there are no-fault and fault-based grounds, as well as additional grounds such as disrespect to elders, witchcraft and leprosy.[31]
In February 1980, the first senate of the Federal Constitutional Court in Karlsruhe, Germany, with eight judges, including the court president, held that the reformed German divorce law was not contrary to the German Constitution. It was seldom possible to determine which one of the spouses caused the breakdown of the marriage; when both spouses attempted to convince the judge that the other spouse was at fault for a fault-based divorce, it only led to more bitter personal tensions between them. A divorce based on one matrimonial offence after years of a happy marriage could end up in a party losing all rights to maintenance as well. Further, it stated that the respect for the personality rights of the individual made it undesirable for the court to investigate the private lives of spouses. Therefore, the court believed shifting from matrimonial offences to IBM was more humane, realistic, and appropriate. The court pointed out that the legislators did enact the law with the belief that marriage is for life and that divorce should be exceptional, but realistically, marriages do fail, and such parties should have the right to dissolve their union and be able to marry again. The minority opinion held that the new law providing an automatic divorce when spouses have discontinued cohabitation for five years was unconstitutional because sometimes, even if a marriage has irretrievably broken down, divorce could mean severe hardships, especially financial and emotional, to the spouse who is clinging onto the marriage. The time limit is too declared and does not account for coincidental bad times at the same time as the end of the five years, such as the death of a family member.[32]
When IBM was added as a ground for divorce in Massachusetts, USA, the court was required to determine whether the agreement made proper provisions for both parties and their children and whether irretrievable breakdown existed within thirty days of the hearing. The parties must wait ten months before a judgment and six months before the judgment is absolute. There must also be a 24-month waiting period after filing the complaint, after which a hearing will be held.[33] The state of California felt similarly to Germany, where it believed that the ‘fault doctrine’, which requires a party to come to court with innocence and clean hands and prove the fault of the other spouse, is an age-old concept, and that it is unnecessary for two consenting adults to elaborate to the court as to why their marriage is no longer working.[34]
V. Conclusion
With the advancement in socio-economic conditions, the concept of marriage has also changed. The spouses are more self-reliant and independent than ever before. The spirit of forced tolerance of yesteryears is disappearing. They are prepared to live separately rather than stay united while unhappy.[35] All things considered, IBM as a ground for divorce is a much less invasive form of divorce, which maintains the privacy of the spouses and excludes judicial intervention. While the Indian Law Commission Reports need amendments before they become statutory law, the idea as a whole should not be thrown away. In a country like India, where arranged marriages are a commonality, India can certainly benefit from the breakdown theory. It would be beneficial for the mental health of all parties involved and would also lessen the burden on courts to ascertain the fault of a party. The idea of marriage being an ‘institution’ in the eyes of the law, and not a mere human relationship with heightened emotions, is a geriatric concept where disagreements in marriages were preventable by simply oppressing the women and providing all decision-making power to the men. IBM would acknowledge that mere differences in opinions would not amount to ‘faults’ that need to be ascertained but that the parties are incompatible without violating the law.
References
[1] Kusum, ‘Irretrievable Breakdown of Marriage: A Ground for Divorce’ (1978) April-June 20(2) Journal of the Indian Law Institute <http://www.jstor.org/stable/43950531> accessed 12 July 2024.
[2] ‘Khulla (Divorce)’ (Muslim Law Shariah Council UK, 2022) <https://www.shariahcouncil.org/khula-divorce/> accessed 12 July 2024.
[3] The Hindu Marriage Act 1955 s 13 (1A).
[4] Kusum, ‘Irretrievable Breakdown of Marriage: A Ground for Divorce’ (1978) Vol. 20, No. 2 April-June 1978 Journal of the Indian Law Institute <http://www.jstor.org/stable/43950531> accessed 12 July 2024.
[5] Premchand Dommaraju and Gavin Jones, ‘Divorce Trends in Asia’ (2011) 39 Asian Journal of Social Science <https://www.jstor.org/stable/43498086> accessed 15 October 2024.
[6] Office of the Registrar General & Census Commissioner India, ‘Census Tables’ (Census tables | Government of India, 1 October 2024).<https://censusindia.gov.in/census.website/data/census-tables> accessed 15 October 2024
[7] Soutik Biswas, ‘What Divorce and Separation Tell Us about Modern India’ (BBC News, 28 September 2016) <https://www.bbc.com/news/world-asia-india-37481054> accessed 15 October 2024.
[8] Rupal Girase and others, ‘A Study of Socio-Demographic Factors Leading to Divorce - A Social Problem’ (2016) 7 National Journal of Community Medicine <https://njcmindia.com/index.php/file/article/view/871> accessed 15 October 2024.
[9] Sunita Bose and Scott South, ‘Sex Composition of Children and Marital Disruption in India’ (2003) 65 Journal of Marriage and Family <https://www.jstor.org/stable/3599905> accessed 15 October 2024.
[10] Shelby Bourgault and others, ‘Violence Against Women and Children During COVID-19—One Year On and 100 Papers In: A Fourth Research Round Up’ (April 2021) .<https://www.jstor.org/stable/resrep30898> accessed 15 October 2024.
[11] T. Sareetha v. T. Venkata Subbaih AIR 1983 AP 356.
[12] ibid.
[13] Harvinder Kaur v. Harmander Singh AIR 1984 Del 66.
[14] T. Sareetha (n 13).
[15] The Hindu Marriage Act 1955 s 13 (1A).
[16] Harvinder (n 15).
[17] Yousuf Rawther v. Sowramma, AIR 1971 Ker 261.
[18] The Dissolution of Muslim Marriages Act 1939 s 2 (ii).
[19] Yousuf (n 23).
[20] Naveen Kohli v. Neelu Kohli (2006) 3 SCC 491.
[21] The Hindu Marriage Act 1955.
[22] The Constitution of India 1950 a 142.
[23] Naveen (n 28).
[24] V.Bhagat v. D. Bhagat, AIR 1994 SC 710.
[25] ibid.
[26] Law Commission, The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground for Divorce (Law Com No 71, 2009).
[27] Law Commission, “Irretrievable Breakdown of Marriage – Another Ground for Divorce (Law Com No 217, 2009).
[28] Law Commission, The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground for Divorce (Law Com No 71, 2009).
[29] Samar Ghosh v. Jaya Ghosh, 2007 (3) SCJ 253 101.
[30] ibid.
[31] ‘Family Law on Six Continents’ (1993) Spring 15(4) Family Advocate <http://www.jstor.org/stable/25805550> accessed 12 July 2024.
[32] K. C. Horton, ‘The Constitutional Validity of the West German Divorce Reform Law’ (1981) April 30(2) The International and Comparative Law Quarterly <http://www.jstor.org/stable/759538> accessed 12 July 2024.
[33] Ann W. Lake, ‘THE NEW MASSACHUSETTS NO-FAULT LAW’ (1975) Winter 16(3) The Family Law Newsletter <http://www.jstor.org/stable/44093234> accessed 12 July 2024.
[34] Norman N. Robbins, ‘Have We Found Fault in No Fault Divorce?’ (1973) July 22(3) The Family Coordinator <https://doi.org/10.2307/582623> accessed 12 July 2024.
[35] Jaya V.S., ‘Irretrievable Breakdown of Marriage as an Additional Ground for Divorce’ (2006) July-September 48(3) Journal of the Indian Law Institute <http://www.jstor.org/stable/43952052> accessed 12 July 2024.
Pavitra Sudhir Kanchan is a fourth-year law student at O.P. Jindal Global University. Her areas of interest are Family Law, Constitutional Law, and Criminal Law.
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