In recent years, legal systems in both India and the United Kingdom have witnessed significant shifts in divorce laws, moving away from the traditional fault-based approach to embrace the concept of no-fault divorce.
India has long adhered to a fault-based theory of divorce, requiring one party to prove matrimonial offenses committed by the other as grounds for divorce. These offenses included cruelty, desertion, adultery, and conversion to another religion, among others. This approach often led to prolonged and emotionally charged court battles, with parties required to reveal personal details in a public forum.
To address the shortcomings of the fault-based system, Parliament introduced mutual consent divorce in 1976, where both parties had to agree to the divorce. Additionally, Section 13(1A) (i) of the Hindu Marriage Act allowed divorce if the couple had not resumed living together for a year after a court’s decree on restitution of conjugal rights. Despite these changes, there was no provision for unilateral divorce on the grounds of an irretrievable breakdown of the marriage.
The Shilpa Sailesh Judgment (Shilpa Sailesh vs. Varun Sreenivasan Transfer Petition (CIVIL) No. 1118 of 2014):
The Shilpa Sailesh judgment, delivered by a Constitutional bench led by Justice Sanjay Kishan Kaul, marked a significant departure from the traditional fault-based theory of divorce in India. The judgment invoked Article 142 of the Indian Constitution, granting the Supreme Court the extraordinary power to dissolve marriages that had irretrievably broken down. This power transcends procedural and substantive law, allowing the court to deliver just and fair outcomes in any matter.
While the concept of an irretrievable breakdown of marriage is not new in Indian jurisprudence, the Shilpa Sailesh judgment firmly entrenched the idea of no-fault divorce in India. It acknowledged that in cases where the marriage had completely broken down and reconciliation was impossible, public interest favoured allowing parties to amicably end their marriage.
This concept is now embraced not only in India but also in various foreign countries, in the United Kingdom the concept of no-fault divorce underwent a transformation in April 2022 with the introduction of the Divorce, Dissolution and Separation Act 2020. This reform eliminated the need for couples to prove fault or rely on specific grounds for divorce. Instead, it encouraged a more amicable approach to separation, promoting reconciliation where possible while respecting the judgment of the involved parties.
Author of this article:
Adv. Ravish Bhatt,
Partner, R&D Law Chambers,
Dual Qualified Lawyer Solicitor | International Tax Affiliate
Connect with Mr. Bhatt on Linkedin: https://www.linkedin.com/in/adit-ravishbhatt/
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