No Fault Divorce In India: Is It Time To Move Beyond The “Fault-Based” Theory In Personal Laws?
- IJLLR Journal
- Mar 23
- 2 min read
Monty (Research Scholar), School of Law and Constitutional Studies, Shobhit University Gangoh, Saharanpur (U.P)
Dr. Anil Kumar LL.D., U.G.C. (N.E.T.), (Associate Professor) School of Law and Constitutional Studies, Shobhit University Gangoh, Saharanpur (U.P)
ABSTRACT
Marriage is a portrayal of an attachment and union whereas divorce implies separation. It is a fundamental right of a person to get married and to form a family which is given under Article 9 of European Union (EU) Charter of Fundamental Rights. The customary Indian legal set-up that governs matrimonial disputes has been anchored in the no-fault theory for a long time ago, where to dissolve the marriage the judicial evidence of specific matrimonial grounds like cruelty, adultery, or desertion is a vital aspect. However, the contemporary evolution of gregarious dynamics and the escalating emphasis on personal autonomy have exposed the drawbacks of this adversarial system. The research even looks into the paradoxical situation in India where, despite repeated recommendations by the 71st and 217th reports of Law Commission of India, the law-making body has abjured from formally codifying irretrievable breakdown, a statutory ground of marriage. In this legislative vacuum, the judiciary of India has surfaced as a beacon of reform. Thus, no-fault divorce is not merely a legal necessity but a humanitarian requirement to preserve the dignity of individuals trapped in dead shells of nuptials. Therefore, it advocates for a shift from a ‘blame- centric’ to a ‘remedy-centric’ jurisprudence. This research paper catches the eyes upon the structure dealing with irretrievable breakdown as a ground for no-fault divorce, historical context of divorce laws in India, socio-legal implications of adopting a no-fault theory, role played by judiciary, legal recognition of no-fault theory worldwide and analytical view of the transition from the ‘punitive’ to the ‘pragmatic’ approach of no-fault divorce regime. Furthermore, it concludes with the suggestions for policymakers and lawmakers to deal with the issue of no-fault divorce in India.
Keywords: Cruelty, Adultery, Desertion, Dissolution, Matrimonial disputes, Emotional death, Humanitarian, No-Fault Theory, Irretrievable Breakdown, Punitive, Pragmatic, Legislative reform, Personal Autonomy.
