Guest Post: The Right to Love and the Right to Leave – Recognising Autonomy through Unilateral No-Fault Divorce

[This is a Guest Post by Shraddha Chaudhary and Shreedhar Kale.]

Thappad (2020) began an important conversation about the inequality and everyday violence that often defines women’s experiences within the institution of marriage. It highlighted the need to interpret fault-grounds liberally, so that ‘just a slap’ would be sufficient proof of cruelty. However, this does not go far enough to recognise the autonomy and dignity of the individual in marriage. The right to dissolve a marriage should not be beholden to proof of ‘fault’ any more than the right to marry should require reasons for the union.

Marriage is considered the cornerstone of family life in India. Unsurprisingly, therefore, Indian divorce laws, whether religious or secular, seek more to preserve marriage, than to facilitate separation. With the exception of certain forms of unilateral repudiation available to a Muslim husband, divorce can ordinarily be obtained either through mutual consent, or by proving one of the listed grounds of ‘fault’, such as adultery, desertion, cruelty etc. In this post, we argue that the autonomy of the individual in marriage will not be truly recognised until Indian divorce law provides the option of unilateral no-fault divorce. Exercising such an option, an individual may unilaterally divorce their spouse, without the need to prove fault or irretrievable breakdown of marriage, or to obtain the consent of the spouse. We discuss the vital constitutional concerns that arise from the legal conditions governing the dissolution of marriage, due to the unique social and symbolic significance of the institution. We also demonstrate how these conditions constitute an unreasonable restriction on the autonomy of the individual, under Article 21, to dissolve a marriage.

Marriage as a Constitutional Concern

Why should the legal conditions of the dissolution of marriage be a constitutional concern? The answer lies in the special place that marriage occupies in Indian social tradition, as well as in the lives of individuals. First, while marriage may formally be a choice, it would be far from accurate to suggest that this choice is, in fact, exercised freely by those who enter the marriage institution. In 2015-16, for instance, 27% of married women aged 20-24 had been married before the age of 18, and 7% before the age of 15. This indicates that millions of women currently in the institution of marriage were not even legally competent to exercise their choice to enter that institution.

Secondly, in the absence of civil partnerships or formal cohabitation, marriage enjoys a legal monopoly over formalisation of intimate relationships in India. This means that a couple is faced with an unpleasant binary. On the one hand is informal cohabitation, which has minimal legal protection and almost no rights. On the other is marriage which, while granting legal rights and social sanction, triggers an onerous legal regime that may keep parties tied together long after the intimacy has died, and often in circumstances of grave emotional, physical and sexual abuse. Fewer than 1% of Indian women aged 41-49 have never been married. In light of the systemic and structural gender inequalities that plague the institution of marriage, it would be naïve to read this to mean that marriage is a popular ‘choice’. In fact, the difficulties of navigating social spaces, the fear of social ostracism, the denial of legitimacy, and the loss of legal protection create pressures so overwhelming that non-marriage is often not a viable option.

Thirdly, and most importantly, however, marriage is a constitutional concern because of the essential symbolic role it plays in the lives of individuals. Marriage has, for centuries now, been integral to the human experience, an important part of the aspirations of human beings. It provides access to symbols which help shape identities, and sanctify intimate relationships that give meaning to people’s lives. To say, then, that marriage is not an Article 21 concern as long as a person may simply choose not to marry, therefore, is like saying that criminalisation of anal-sex is not an Article 21 concern because gay men may simply choose not to have sex. Certainly, the prima-facie choice exists, but forcing people to make that choice cuts at the foundation of human dignity.

Even assuming that marriage is indeed a choice that can freely be exercised without compromising human dignity, we believe it would still be a constitutional concern. This is because it is a legal institution that, in its present form, infringes the autonomy and dignity of the individual at the point of its dissolution, and therefore, violates constitutionally affirmed and protected rights.

Divorce Laws as Barriers to Individual Autonomy

The Supreme Court of India has, time and again (see Puttaswamy, Shafin Jahan, Shakti Vahini , and Navtej Johar) affirmed the autonomy and privacy of the individual in choosing whom to marry, whom to love and how to love. This negative right of non-interference essentially bars the state and society from dictating or infringing on these decisions. In Navtej Johar, in fact, the Court went further to recognise the role of this autonomy as constitutive of individual identity. The pride of place enjoyed by autonomy in creating relationships, including marriage, contrasts sharply with its conspicuous absence in ending formal relationships. Where a marriage is no longer a positive constituent of a person’s identity, ceases to be a source of love or intimacy, or simply fails to meet her expectations, the end of this marriage should need nothing more than her personal decision to exit it. A system that requires a person to justify this decision within the paradigm of arbitrary legal pigeon-holes, and to assign blame where none might lie, severely undermines the autonomy she enjoyed when entering the very same relationship.

Tying the dissolution of marriage to proof of fault in this manner also attacks the dignity of the individual. To fall in love and out of it, to have sex and stop having it, and in the same vein, to enter a marriage and exit it are intimate choices, intrinsically linked to a person’s imagination of herself, and to her most personal boundaries. Such choices should not be subservient to the satisfaction of subjective legal standards, or even to legal adjudication. This extends beyond fault grounds to mutual consent divorce. The relational rights that undoubtedly arise from marriage, such as the right to maintenance or child-support, are not contingent on the subsistence of the marriage. Therefore, the decision of one spouse to dissolve the marriage should not be contingent on the consent of the other. Similarly, it encompasses irretrievable breakdown, which has come to be an ad-hoc measure adopted by the Supreme Court to grant divorce in cases where the relationship is ‘beyond salvage’. Though no longer beholden to grounds of fault, divorce based on irretrievable breakdown still subjects individual autonomy to adjudication, and the satisfaction of the legal standard that the ‘marriage has broken down beyond repair’.

Simply put, the autonomy to enter the institution of marriage is incomplete and meaningless unless it is accompanied by the autonomy to freely and without ‘reason’, exit it, that is, through unilateral no-fault divorce.

Unilateral, no-fault divorce was the subject of constitutional scrutiny by the Supreme Court of India in Shayara Bano, where the Court held talaq-i-biddat (unilateral, irrevocable divorce on demand by a Muslim man) unconstitutional. Of the majority which affirmed this position, Joseph J., based his decision largely in theology, while Nariman and Lalit JJ. misidentified the ‘wrong’ of triple talaq. As this blog rightly argues, talaq-i-biddat was unconstitutional mainly because it discriminated on the basis of sex (Article 15), and not so much because it was manifestly arbitrary (Article 14). We believe that such discrimination is not a necessary consequence of unilateral no-fault divorce, but was a product of the circumstances in which talaq-i-biddat was practiced. It arose from the fact that the option of unilateral divorce was available only to men, and, more importantly, that there were no safeguards against the financial hardships that divorced women faced.

It is possible, therefore, to have an option of no-fault divorce that is not discriminatory. This would be done, first, by extending the right equally to both parties, regardless of gender, and secondly, by ensuring that the financial and material needs of the divorced woman are adequately met, either by her ex-spouse or by the state.

Fault-Based Divorce: An Unreasonable Restriction to Article 21

A constitutional challenge to the absence of unilateral no-fault divorce is likely to be met with strong opposition from various sections of society, including the State. The State has, in other issues relating to the marital sphere, such as marital rape, prioritised the ‘preservation of the institution of marriage’ over the rights of the parties, particularly women, in the marriage. The State would likely defend the status-quo of fault-based divorce as a reasonable restriction on the autonomy of an individual under Article 21. According to Puttuswamy II, “…a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).”

Do arguments in favour of fault-based divorce as a reasonable restriction meet these criteria?

Legitimate Goals Stage

  1. The State has consistently claimed that the stability of the marriage institution is a legitimate State interest. Such an interest would arguably be threatened by a system that allows ‘arbitrary’ or ‘capricious’ divorce on demand. Therefore, the State may claim to have an interest in ensuring the indissolubility of marriage, or at the very least, in setting legal standards that prima facie disincentivise parties from dissolving the marriage.
  2. Additionally, it may be argued that the restrictions on divorce are meant to safeguard the interests of women and children in the event of an ‘arbitrary’ divorce.

First, it is possible to reject the State’s interest in the institution of marriage on the ground that decisions related to marriage and family relationships, being protected private choices, are not the appropriate domain of the State, except in limited circumstances. However, given that this interest has come to be constitutionally recognised, we choose not to contest this claim, given the limited scope of this post. Similarly, we also concede that the broad aim of protecting the rights of women and children is a legitimate aim of the State.

Notwithstanding this, we argue that fault-based divorce has no rational connection with these legitimate interests, and given the availability of a less restrictive but equally effective option, cannot be termed a necessary restriction.

Rational Connection Stage

Under the proportionality standard, once an infringement of a right is established, the burden of justification shifts to the State. The rational connection between prohibiting no-fault divorce and maintaining the stability of the marriage institution is, therefore, for the State to establish. On closer scrutiny, however, it can be seen that no such clear rational connection exists.

Marriage is not indissoluble in India, even if fault-based divorce does often make the process so protracted and cumbersome as to disincentivise divorce. However, this does not ensure the ‘stability’ of marriage unless the only metric of ‘stability’ is longevity. Arguably, if marriage is to serve as the cornerstone of family life, the test of its stability should be its strength and quality. A marriage that is long-lasting, but devoid of emotional value for one or both parties, and perhaps even marked by prolonged conflict or violence, cannot possibly be a reliable or stable foundation for family life. It is also arguable that a system that connives to keep people in a marriage by making its dissolution unnecessarily complex and onerous does a disservice to the institution of marriage.

Unilateral, no-fault divorce, on the other hand, has the potential to strengthen the institution of marriage by ensuring that those who remain in it do so because of the value it adds to their lives rather than the legal barriers to its dissolution. Moreover, no-fault divorce is no more ‘arbitrary’ or ‘capricious’ than fault-based divorce. Given the complexities of the human experience, especially in a sphere as intimate as marriage, no classification of fault grounds can ever hope to be comprehensive. In light of this, a legal regime that forces individuals to ensure that their narratives kowtow to the pre-determined grounds of fault available to them, is in itself arbitrary.

The purported interest in protecting women and children is, similarly, not advanced by fault-based divorce. This is for three reasons:

First, the underlying presumption of this interest, that the option of no-fault divorce would primarily be exercised by men against women, is erroneous. Considering the inequality and gendered violence that often marks marriage, such an option would, in fact, provide women an easy means of liberation. The expensive and adversarial process of litigation in fault-based divorce can exacerbate conflict, especially since the very purpose of the litigation is to find fault with one’s spouse. In cases involving physical, mental or sexual abuse, such litigation may also revictimize an abused woman. Faced with such a system, women may, in fact, be compelled to stay in abusive or exploitative relationships.

Secondly, while it is true that divorce is a traumatic experience for a child, the dangers of living in a household steeped in conflict, and possibly violence, over extended periods of time, should not be ignored either. It would be potentially more damaging for a child to be caught in the protracted crossfires of divorce litigation than to simply be from a divorced household.

Finally, the only way in which the State can seek to safeguard the interests of women and children in the event of a divorce is to ensure that the financial and material needs of women and children are adequately provided for. However, this need not be linked to the method of divorce, and can be determined separately.

Therefore, fault-based divorce does not further either of the State’s aforementioned interests, whether in ensuring the stability of marriage as the foundation of family, or in protecting the rights of women and children in the marriage.

Necessity and Balancing Stages

Unilateral no-fault divorce with adequate safeguards for the protection of vulnerable parties (as previously discussed) is far better suited to achieving the aims of the State, while simultaneously causing less infringement to the autonomy and dignity of individuals at the stage of dissolution of marriage, compared to fault-based divorce. Given this less infringing and equally efficacious alternative, fault-based divorce cannot reasonably qualify as a necessary restriction.

As regards the possible claim that fault-based divorce does not disproportionately impact those seeking divorce, the foregoing discussion on the autonomy-infringing effects of fault-based divorce would, we believe, suffice to negate the claim.

From the above, it is evident that the absence of an option of unilateral no-fault divorce amounts to an unreasonable restriction on the fundamental right to dignity and autonomy under Article 21. The only question that remains, therefore, is how the Supreme Court ought to adjudicate on the matter if such a challenge is brought before it.

Creating Space for Unilateral No-Fault Divorce

Based on our arguments in this post, the absence of unilateral no-fault divorce must first be held to be violative of Article 21, recognising that the right to love and the right to leave are two sides of the same coin. The Court would then have three options. First, it could make the declaration of unconstitutionality and leave it upto the State to pass a law on the subject. However, since the Court has acknowledged its duty to correct constitutional wrongs, without waiting for a majoritarian government to bring about such change, this would not be the most suitable option.

Secondly, the Court could choose to pass guidelines, including the option of unilateral no-fault divorce in various legislations till their formal enactment by Parliament, as in Vishaka. Thirdly, it could direct the Government to amend the relevant laws to include this option, as in NALSA. Of these, it appears that the second option would be the least objectionable. Given the orthodox position of the state on marriage, it is likely that the declaration would be ignored, as in Prakash Singh. Therefore, guidelines created by the Court would serve as an appropriate interim measure, ensuring that the declaration is not reduced to empty words. However, this option should be exercised consultatively, keeping in mind that the operationalisation of unilateral no-fault divorce must be based on empirical data on the patterns of divorce, custody and maintenance litigation in the country, lest we risk the remedy being worse than the ailment.

5 thoughts on “Guest Post: The Right to Love and the Right to Leave – Recognising Autonomy through Unilateral No-Fault Divorce

  1. Well argued and very well written.
    I pray fervently for the day we come out of our hackeyed concerns and address real life issues in their modern day context.
    Congratulations Shreedhar and Shraddha.

  2. >This would be done, first, by extending the right equally to both parties,
    > regardless of gender, and secondly, by ensuring that the financial and
    > material needs of the divorced woman are adequately met, either by
    > her ex-spouse or by the state.

    the idea that the man or the state should, in all cases, take care of the woman seems anachronistic in this day and age. shouldn’t this be on a case by case basis? most jurisdictions propose an equitable or equal sharing of marital assets. isn’t it plausible that, in some case, the man may need support from a more successful woman?

    > safeguard the interests of women and children

    The numerous references to children in this article are always intertwined with women. This is the judicial view too – while judgments frequently spout ‘children are not chattel’, they inevitably treat children as chattel of their mothers. Children are autonomous beings and they have the right to love both parents too, irrespective of one parent’s ‘right to leave’.

    It is rarely the case that the best interest of children lie with being with the mother alone and having sporadic access to the father, which is what most Courts award. Mothers can be abusive too (WCD 2008 study found mothers more abusive). child custody, just like fault-based divorce, is another source of acrimony in matrimonial litigation. Shared parenting should be mandated along with no-fault divorce.

  3. Its very well written. However ,although I agree with the legality of the argument, in the Indian social context, it would leave many many women in a very sorry situation. I think this applies mainly to a small subset of financially independent women .


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