Ending a marriage should not require proving the fault of one of the spouses, the Supreme Court observed on Wednesday, adding there are situations when a marriage may not work because of irreconcilable differences.
According to a Constitution bench headed by justice Sanjay Kishan Kaul, the law on divorce in India is based on the “fault theory” while the reality could be that “two very good persons cannot always be good partners”.
“The question is, in the divorce, must one person be attributed at fault?” asked the bench, which also included justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari, as it heard a bunch of petitions pertaining to the Supreme Court’s power to grant divorce on the ground of irretrievable breakdown of relationships.
The bench remarked that most of the faults that parties allege while seeking divorce arise out of societal norms and expectations. “What is fault [in such cases]? Somebody will say that she does not wake up in the morning and give my parents tea.. is it a fault theory? Lots of them arise from social norms… From there we attribute faults,” lamented the court.
Irretrievable breakdown of marriage is not a ground available under the law for couples seeking separation but the Supreme Court, through a raft of orders, has been granting decrees of divorce exercising its unique jurisdiction, under Article 142 of the Constitution of India, to do complete justice between the parties.
