Too many breakdowns

 Dec 19, 2009

Smriti Shinde's petition to the Supreme Court to allow for irretrievable breakdown as grounds for divorce essentially the no-fault divorce seems, prima facie, to be a good suggestion. Who, after all wants to be trapped in a marriage-in-name-only, in which neither party is happy, but one party holds on out of spite or fear of recrimination? But deeper investigation will reveal that unilateral divorce would be nowhere near as beneficial for women as its proponents are claiming.


Supporters of no-fault divorce think that the provision would help women trapped in unhappy marriages, beholden to their husbands for financial stability, who would not be able to get consent from their partners for the dissolution of a marriage under the Hindu Marriage Act. But the law doesn't distinguish between the husband or wife, so a husband would be entitled to seek unilateral divorce just as much as his wife. That means that men who are looking for a quick bailout could use it to take the easy way out of a marriage that is proving to be inconvenient. It cuts both ways and if men use it to get out of marriage, it would leave women even more disadvantaged than before, because the wife in that situation would have no grounds to claim spousal support.

Consider, also, the problems that could arise from making divorce too easy. Marriage is the institution on which human civilisation rests, and to destroy it easily by facilitating a no-fault divorce might shake the foundations of our society. Take the example of the United States. All US states, except for New York, have adopted no-fault divorce, with an unsurprising increase in the divorce rate. Continuing with the American example, statistics show that over 80 per cent of no-fault divorces are unilateral, which means that no-fault laws leave the party not in favour of divorce unable to do anything to save their marriage. Further operational details are also problematic. No-fault would mean that judges would have free reign, more or less, in deciding on issues of custody and asset division, which would lead to arbitrary decisions based on subjective criteria.

India's divorce laws are complicated, true, and do need to be looked at and simplified. But adding no-fault divorce to existing divorce laws wouldn't do that it would merely complicate it further.