Supreme Court: Since there are many circumstances in which a marriage may fail due to irreconcilable differences, the Supreme Court has stated that dissolving a marriage should not require demonstrating the culpability of one of the spouses.
The Constitution Bench, which was presided over by Justice Sanjay Kishan Kaul and also included Justice Sanjiv Khanna, Justice A.S. Oka, Justice Vikram Nath, and Justice J.K. Maheshwari, stated that the divorce laws in India were based on the fault theory, even though it might actually be the case that these two people were not a good match.
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“Why must one person be credited at fault?” asked the Supreme Court
When the Supreme Court heard a number of petitions regarding its authority to award divorce on the grounds of irretrievable relationship breakdown, the Court questioned: “Why must one person be credited at fault?”
According to the bench, the majority of the defects that parties assert as grounds for divorce are simply a result of society norms and expectations. What’s wrong if a girl doesn’t want to get up and make tea under these situations? I’ve heard someone say, “Is it a fault hypothesis that she doesn’t wake up in the morning and make my folks tea?”
The law does not allow for irretrievable marriage breakdown as a basis for divorce, but the Supreme Court has been giving divorce judgments in a number of decisions as part of its special authority granted by Article 142 of the Constitution to ensure that the parties are treated fairly.
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In 2016, a smaller bench asked the Constitution bench to consider whether the Supreme Court should use its authority under Article 142 to grant divorce without referring the parties to a family court, where they would have to wait for a divorce by mutual consent for a period of time between 6 and 18 months.
Senior attorneys Indira Jaising, V Giri, Dushyant Dave, and Meenakshi Arora assisted the Bench in 2016 as Amicus Curiae.
Yesterday, Jaising argued in favour of the Apex Court awarding divorce on the grounds of irretrievable breakdown of marriage, arguing that the only question should be the method of separation when all of the basic marital ties have been severed.
She continued by saying that she did not adhere to the cliché that marriage is a sacrament and that it is against Indian law to dissolve unions.
These are two distinct things, the bench retorted. A marriage is formed through sacramental means. “There is no question about whether or not a marriage can fail. The problem is that divorce under the Hindu Marriage Act is predicated on the premise of fault, even if irretrievable breakdown is a fact of life.
Jaising asserted that social standards alter throughout time as well.
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