Introduction

Marriage is a contract as well as a sacrament; therefore, it encompasses both a sacred aspect and a lawful contract. The contract aspect arises from the mutual consent and agreement to cohabit, while the sacred dimension derives from its religious significance.

A successful marriage thrives on qualities like tolerance, adjustment, and mutual respect. If either party is unwilling to live harmoniously with their partner, the relationship is unlikely to be a happy one.

Prolonging such a relationship would only breed animosity and frustration between spouses. Hence, to preserve the sanctity of marriage, minimise unhappy unions, and prevent wasting precious years of their lives, it sometimes becomes necessary to dissolve such marriages by way of divorce.

Divorce refers to the legal dissolution of a marriage through the intervention of a competent court. It arises when an individual seeks to terminate a burdensome marital relationship that ends in the breakdown of the marriage. The law provides individuals with the opportunity to get out of an unhappy union by way of divorce. Over the years, two theories have emerged in the field of divorce, i.e., “fault theory” and “no fault theory”. Depending on the circumstances surrounding the divorce, one of these theories becomes applicable in each case.

What is a no fault divorce

No-fault divorce is a legal process whereby a marriage can be dissolved without the need to prove fault or wrongdoing on the part of either spouse. For example- A married couple has grown apart and no longer feels compatible. They finally decided to get divorced. In a jurisdiction that allows no-fault divorce, the couple can proceed with divorce without having to accuse each other of any specific fault. In order to get a divorce, they can simply state that they have irreconcilable differences or that the marriage has become irretrievably broken.

No-fault divorce aims to streamline the divorce process and reduce conflict, allowing couples to separate with less animosity and bitterness. These laws enable a family court to grant a divorce when either party files a petition without the petitioner being obligated to provide evidence of a breach of the marital contract by the other party.

In order to secure a no-fault divorce, the spouse initiating the process must assert that the marriage has reached an irreparable point of breakdown due to irreconcilable differences or incompatibility. Additionally, in certain jurisdictions, a specific duration of living apart can serve as grounds for pursuing a no-fault divorce.

In earlier times, couples who were married faced the requirement of providing a legitimate reason to terminate their marital bond and proceed with a divorce. This concept, known as the grounds for divorce, was part of the fault theory of divorce.

Difference between divorce under “fault theory” and “no-fault theory”.

The fault theory or the guilt theory of divorce originated in the 19th century, when society strongly condemned divorce as a wicked act akin to mischief caused by the devil. Consequently, divorce was only considered acceptable if one of the parties had committed a grave sin or a highly reprehensible offence against the institution of marriage.
The offence theory puts forth two essential elements:

1. a culpable individual, referred to as the guilty party, who has engaged in one of the specified matrimonial offences or has any venereal or incurable disease.
2. an aggrieved individual, known as the innocent party, who has suffered without any involvement in the wrongdoing or the matrimonial offence committed by the other party.

This theory posits that in the event of a matrimonial offence, the party who has been wronged has the option to seek divorce from their spouse who has committed the offence.

The theory further lays down that the sole basis for divorce lies in the occurrence of a matrimonial offence. The party seeking divorce must be an innocent party. This dichotomy of guilt and innocence is the basic requirement of this theory.

The Hindu Marriage Act of 1955 includes a provision in Section 13(1) that outlines nine specific grounds, allowing either the husband or the wife to seek a divorce.
1. Adultery
2. Cruelty
3. Desertion
4. Conversion
5. Insanity
6. Leprosy
7. Venereal disease
8. Renunciation
9. Presumption of death

On the other hand, the no-fault theory of divorce is founded on the belief that marriages may dissolve not due to the fault or culpability of one spouse but rather because the spouses lack compatibility in their temperaments. Despite their sincere efforts, they find themselves unable to sustain a husband-wife relationship.

Regrettably, couples were compelled to engage in collusion to extricate themselves from the bonds of matrimony since they had no alternative. To address this issue, the concept of consent divorce was incorporated into matrimonial laws. Its purpose was to allow couples to pursue legitimate means rather than resorting to fraud or collusion in order to achieve their rightful objectives. The core principle of the consent theory is that just as two individuals can enter into a marriage of their own free will, they should also have the freedom to dissolve their relationship based on their own free will.

No Fault/Mutual Consent divorce in India

Before 1976, divorce was solely based on the fault theory, which meant that a marriage could only be dissolved unless one party had committed a matrimonial offence.

However, a significant change occurred with the introduction of the no-fault theory. This means that now divorce can be obtained through the mutual consent of both parties to the marriage, as outlined in the Marriage Laws (Amendment) Act of 1976. Section 13-B (1) stipulates that a joint petition must be filed by the parties, stating that they have been living separately for a year or longer and have no intention of reuniting. They must also agree that the marriage should be dissolved.

According to Section 13-B (2) of the Act, “the court can grant the divorce if both parties confirm their intent, however, not earlier than six months after the initial petition was filed and not later than eighteen months afterward, provided the petition has not been withdrawn in the meantime.” The court will then conduct a hearing, make necessary inquiries, and ensure that the marriage was lawfully solemnised and the claims in the petition are true. If satisfied, the court will issue a decree of divorce, officially dissolving the marriage from the date of the decree.

In India, divorce laws are governed under the Hindu Marriage Act of 1955, the Special Marriage Act of 1954, the Indian Divorce Act (Christian Marriages), and Muslim personal law. These Acts provide provisions for divorce based on two grounds: contested and consensual. Contested divorce occurs when one partner files a divorce petition citing reasons such as cruelty, adultery, conversion, desertion, or unsoundness of mind exhibited by the other spouse. On the other hand, consensual divorce involves both partners filing a joint petition through mutual consent. However, initiating legal proceedings for consensual divorce is more intricate compared to contested divorce. Both spouses must file a petition together, and they must fulfil a specified period of separation before initiating the legal process.

Couples who are married under the Hindu Marriage Act and the Special Marriage Act must establish a period of separate living for at least one year before initiating a divorce by mutual consent. Conversely, Christian couples are required to live separately for a minimum of two years prior to filing for divorce. In addition, all couples seeking a consensual divorce are obligated to make two court visits: the first to file their petition and the second after six months to present evidence This six-month period is referred to as the “cooling off period.” During this time, the parties are encouraged to reflect and reconsider their decision to separate.

The application of no-fault divorce in India primarily extends to couples married under Hindu, Jain, Sikh, and Buddhist laws. Divorce provisions may differ under various religious personal laws, which can lead to added complexity for couples married under different religious laws. While India acknowledges the concept of no-fault divorce through mutual consent, the specific criteria and procedures may differ based on the relevant personal laws and individual circumstances.

Judicial pronouncements

Sureshta Devi v. Om Prakash (1991)

In this case, a petition under Section 13-B of the Hindu Marriage Act for divorce by mutual consent was filed in District court, and thereafter the statements of the parties were recorded. Further, an application was filed by the appellant stating that the statement given by her was under the threat of the Respondent. Hence, she prayed for the dismissal of the petition.

The issue before the court was whether a party involved in a mutual consent divorce petition under Section 13B can unilaterally revoke their consent after it has been given, or is the consent given considered irrevocable?
After analysing the Section, the Court held that a divorce cannot be granted merely by filing a petition with mutual consent; the parties have to abide by the statutory waiting period of 6 to 18 months to give them another chance to reconcile. It was also noted that if any of the parties is willing to withdraw its consent, the court cannot pass a decree of divorce by mutual consent.

In this case, the Supreme Court also emphasised on the importance of upholding the principle of no-fault divorce to safeguard individuals from getting stuck in unhappy marriages. The Court held that the irreparable breakdown of marriage is a legitimate ground for divorce, even in the absence of specific laws emphasising the same. It’s crucial to find a fair balance between the importance of marriage and a person’s right to be happy and free.

A similar stance was taken by the court in the case of Naveen Kohli v. Neelu Kohli (2006).

Amardeep Singh v. Harveen Kaur (2017)

In this case, the married couple, due to conflicts between them, began to live separately. They eventually decided to pursue divorce by mutual consent. The parties requested a waiver of the six-month waiting term for the second motion, stating that there was no prospect of reconciliation.

The issue before the court was whether the six-month waiting period specified under Section 13-B(2) of HMA, 1955, for a decree of divorce on mutual consent is obligatory or can be waived off by the Apex Court in extraordinary circumstances under Article 142 of the Indian Constitution.

The Hon’ble Court held that the provision in HMA allowing a six month cooling off period is advisory and not mandatory, and it can be waived by the court when proceedings are pending, under exceptional circumstances, or when the court can foresee that there is no possibility of reconciliation.

Shilpa Sailesh v. Varun Sreenivasan (2023)

In 2014, the parties to this case sought relief from the Supreme Court to obtain a divorce due to their union being ‘irretrievably damaged’, which is not considered a valid ground for divorce under HMA, 1955. In 2015, the Supreme Court granted them the divorce they sought. During the proceedings, the Court acknowledged the existence of numerous similar petitions awaiting resolution. Consequently, although the divorce was granted, the Court decided to keep the case pending in order to address the issue: “Can the dissolution of a marriage be based on the concept of “irretrievable breakdown of marriage,” even though this ground is not officially recognized by the Hindu Marriage Act? Additionally, does the Supreme Court, under Article 142 of the Constitution of India, possess the authority to address this issue?

The Supreme Court reiterated that marriages can be dissolved without the mandatory six-month waiting period mentioned under the Hindu Marriage Act of 1955. The Court has the power to dissolve a marriage on the ground of irretrievable breakdown under Article 142(1). However, this power must be exercised with great caution. Marriage can be dissolved on the grounds of irretrievable breakdown, even if one party is unwilling to agree and even though it is not a statutorily recognized ground. The 5-judge Bench acknowledged the importance of a more modern approach to divorce cases and moving away from divorces on a fault basis.

In this significant ruling, the Court stated that we shouldn’t focus on who is at fault to establish a ground for divorce. Under Section 13B of the Hindu Marriage Act, couples can get divorced without blaming each other through mutual consent. The Court emphasised on the need of considering irretrievable breakdown of marriage as a ground for divorce and also highlighted the importance of individual autonomy.

These cases exemplify a change in the judiciary’s perspective regarding no-fault divorce throughout the years. In a mutual consent divorce or no fault divorce, both parties should consent to divorce. The consent may be revoked by either party when the divorce proceedings are pending, i.e., during the waiting period. The waiting period of six months is advisory, and it can be waived or reduced by the court in exceptional cases. The Court under Article 142 has the power to grant divorce even in situations where the dissolution of marriage is on the ground of irretrievable breakdown, which has no mention in The Hindu Marriage Act.

Conclusion
The concept of no fault divorce has changed the way our society perceives marital dissolutions. No fault divorces have paved the way for more amicable separation rather than assigning blame to one another. Placing the burden of proof on one party to establish fault leads to prolonged legal processions. By eliminating the need for fault grounds, couples can part ways with more ease and less emotional turmoil. Throughout the years, the judiciary has developed this concept of no fault divorce through various cases. As a result, individuals can make decisions about their own lives and relationships. No fault divorce prioritises the well-being and autonomy of individuals.