IS THE RIGHT TO DIVORCE A FUNDAMENTAL RIGHT?

Introduction: The Nuance of the 1% Statistic

With roughly 1% marriages resulting in divorce each year in India, the number may sound overwhelming when compared to west but it is more nuanced than it looks in the first glance because of the binding nature of the Indian society towards the social institution of marriage often compels the individuals in a union to regard it without opposition even if they encounter situations where their rights are curbed, they are subjected to minor marital offenses every day and then too they remain vulnerable (mostly women) at mercy of their partners. (mostly men)

While urban India shows a recent surge in divorce filings correlational to economic independence of women and higher awareness pattern, contrary to rural India, which still lacks the courage to take a stand for itself, where the number of cases goes underreported due to multiple factors:

• Fear of retaliation.

• Lack of trust in law enforcement agencies.

• Economic dependence on husband/family.

• Deeply ingrained cultural norms and the belief that spousal abuse is a private matter.

However, with this, I, with no intent, want to establish that only women are victims and men are perpetrators. It may be vice versa, as seen in K. Srinivas Rao v. D.A. Deepa (2013), in which the Supreme Court ruled that a wife filing a false criminal complaint under Section 498A IPC constituted mental cruelty, justifying divorce for the husband.

The Threshold Question: Do we have a fundamental right to marry?

But before jumping onto the right to divorce, we need to analyse whether we really have the fundamental right to marry? Universal Declaration of Human Rights Article 16(1) of the UDHR, 1948 states that, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family”, to which India is also a signatory.

It also posed a compulsion on the Indian legal system to include various human rights mentioned in it to be incorporated in our constitution, which came to be known as “Fundamental Rights”. Its basic structure, under the umbrella of Article 21, covers various subjects pertaining to human life and liberty. The right to marry as a human right was also reaffirmed by Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR). Indian courts in various precedents have created a thin line of distinction between the right to choose a partner and the right to marry, where the former cannot be in any way interpreted to be equated to the latter.

SAME SEX MARRIAGES: SOCIETAL STIGMA VS A GUARANTEED CONSTITUTIONAL RIGHT

The apex court in its landmark verdict of Navtej Singh Johar vs Union of India decriminalised Section 377 of Indian Penal Code, 1860 to an extend that carnal intercourse between two consenting adult individuals was no more a criminal offense making a transformative step towards the rights of non- heterosexual individuals, but mere recognition is not enough until right to marriage is not granted to which Indian courts have refrained in addressing taking in consideration the social norms and stating that this power essentially lies with the parliament to legislate upon.

On the other hand, Nepal’s supreme court in Pinky Gurung v. Government of Nepal, instructed the government to register homosexual marriages, making it the first and only country in South Asia to do so. Nepal's progressive approach demonstrates that when legislative action is slow, judicial intervention can hasten social development. As of now, 38 countries, including Thailand, Austria, Ireland, and Brazil, have legalised same sex marriage. However, contrary to its constitutional commitment to gender equality, India continues to lag.

Despite the right to marry a partner of one's choice being frequently upheld as a fundamental right for heterosexual couples in Lata Singh v. State of U.P. (2006) and Shafin Jahan v Asokan K.M (2018), and is widely accepted by the society at large, it gives evidence that a law affecting people must be self-asserted by the society before coming into force.

• The Jurisprudential Root: As the laws in India have a civilisational root in Manusmriti, Dharmshashtra etc and have been an evolving concept along with the society ever since, have undergone humungous changes from law on abolition of sati to codification of Hindu laws with massive resistance to it, now it’s the time for our society to address a sect which not much different from us but still is subjected to tortures, ill treatment and looked and talked about with taboo, same sex relationships are not new to the Indian culture, what remains is the acceptance from the rigid sect of society, who choose to stick to old narratives without a rational thought, its not for them to blame but to analyse our civilisation as a whole and impact of colonial rule which has damaged the INDIAN WAY OF THINKING.

• LGBTQ community occupy around 10% of our population, so their rights must be as important as those of the other 90% population. Law and society are constantly evolving subjects that adapt to the changing world order. Volksgeist (the "spirit of the people), the central theory of the German jurist Friedrich Carl von Savigny (a founder of the Historical School of Law), posits that law is an organic product of a nation's history, customs, and popular consciousness, developing spontaneously over time much like a language.

Refusing the same rights granted to heterosexual couples, to non-heterosexual couples and other members of the LGBTQIA+ community, despite homosexual relationships being legally recognised in Navtej Singh Johar and non-binary gender identities being legally recognised in the NALSA verdict, is an egregious violation of the community's fundamental rights. It is a highly hypocritical approach to give them power but no means to use, violative of the very basic structure of our constitution. Article 19(1)(a) of our constitution which guarantees to all its citizens freedom of speech and expression subject to reasonable restrictions under clause (2) gives freedom to express once’s gender orientation and make choices in furtherance to it is also violated along with right to equality (ARTICLE 14) for being excluded from The Special Marriage Act (SMA) 1954.

The Reasonable Classification Test:

Proponents argue that this may be a reasonable classification under Article 14. Building on this, the LGBTQIA+ community can be treated differently, but it is an accepted legal principle that, in order to qualify as a reasonable classification and thus not violate the right to equality enshrined in Article 14 of the Constitution, two conditions must be satisfied:

1. The classification must be based on intelligible differentia.

2. The differentia must have a rational nexus to the object sought to be achieved by the legislation.

In this context, Justice SK Kaul held in a Plea for Marriage Equality 2023 that the SMA violates Article 14 because it discriminates against queer people. The intent of the SMA to facilitate interfaith marriages, he said, had no “nexus” with the exclusion of non-heterosexual couples. According to Former CJI D.Y. Chandrachud, this classification relies on the equality test on a rigorous formula, which ignores the fact that Article 14 provides a powerful declaration of value: all citizens have the right to equality before the law and equal protection under the law.

Interim conclusion: Where there is Marriage, there must be Divorce

Though CJI DY Chandrachud was a part of the five-judge constitutional bench which unanimously rejected the plea for queer persons' right to marry on 17 OCT, 2023, expressing that there was no fundamental right to marry anda union between two queer people cannot be read in the ambit ofthe Special Marriage Act, 1954.

This judgement does not shun the possibility of same sex marriages from getting legally recognised under Indian law, but what remains in contention is how the lawmakers approach the provisions tackling the problems (property division, child custody and visitation, etc after divorce) that will arise in pragmatic enforcement. As said in torts, where there is a right, there is a remedy; conversely, it goes here that where there is marriage, there will be divorce.

The US Supreme Court (SCOTUS) in Obergefell v. Hodges, 2015, not only recognised the fundamental right to marry but also laid down regulations resolving ambiguities around divorce in same sex marriages. Situation in India remains more challenging because of regional diversity, acceptance from various religious institutions, customs and tribal autonomy. Grounds for divorce also remain in contention as they are acknowledged arguments for establishing that a marriage has irrevocably broken down. They are necessary conditions for divorce procedures and must be demonstrated in both same-sex and heterosexual partnerships.

DIVORCE LAW IN INDIA: Between Sacred Unions and Contractual Reality

The cultural landscape and significance of marriage in our country are embodied largely in the Hindu Marriage Act, 1955, which views wedlock as a sacred union of two entities living together for life and beyond, except for Muslim law, governed by shariat, which makes it a contractual relationship.

But what exactly is the purpose of that union when individual autonomy and freedom are curtailed to sustain the relationship? It comes down to a compromise which diverts fundamentally diverts from the institution of marriage. The freedom of choices of an individual entity in union is an essential feature that helps itself to sustain as enshrined in Article 21 of the Indian constitution which guarantees “Right to life and liberty” to every citizen but how profoundly it is practised on ground still remains a question when number of cases of cruelty and domestic violence go unreported due to social stigma and fear to be judged.

Divorce becomes not an option but a necessity when marriages breakdown to an extent beyond the scope of reconciliation acknowledged by supreme court in Navin Kohli vs Neela Kohli, 2006 and Shilpa Sailesh v. Varun Sreenivasan, 2023 bringing irretrievable breakdown of marriage as a valid ground for divorce using its power under article 142 to do complete justice which was also reiterated in 71st Law commission report.

A Judicial Metaphor: In this context Kerala High Court in A. Yousuf Rawther vs Sowramma, 1970 said, “While there’s no rose which has no thorns, but what if you hold is all thorn and no rose? Better throw it away.”

Although western countries do have “incompatibility of temperament” and “profound and lasting disruption” as a ground for divorce, it has yet to find space inthe Indian legal system. Divorce law in India is mainly governed by five laws, namely:

• Hindu Marriage Act, 1955: Governs divorces among Hindus, Jains, Buddhists, and Sikhs.

• Muslim Marriage Act, 1939: Covers divorces among Muslims.

• Indian Divorce Act, 1869: Applicable to Christians.

• Parsi Marriage and Divorce Act, 1936: For Parsis.

• Special Marriage Act, 1954: A secular law applicable to interfaith and inter-caste marriages.

A Sociological Perspective: Rising Trends and Modern Needs

While the sole intent of the above-mentioned laws is to fill a procedural gap which existed long before their enactment and provide a legal structure and streamline the process of divorce filings and decrees, they are not immune to anomalies which are quite expected from a diverse country like India. Using a sociological perspective, analysing rising trends of divorce in recent years leads to the following common reasons, namely:

• Independence of Indian women: Latest periodic labour force survey findings suggest higher participation of women in the workforce between the ages of 19 to 49, which provides them both awareness and self-sustaining capability.

• Communication Gap & Infidelity: Cheating and extramarital affairs still find a top spot in causes for divorce.

• Urban vs. Rural Dynamics: Data from the National Family Health Survey indicate marital dissolution is higher in urban nuclear households when compared to rural joint family setups.

• Procreative Pressures: Problems with in-laws add another layer of contributing factor among the already prevailing factors in the current changing social order.

The Intersection of Autonomy and Article 14

Marriage is a substantial social institution that a society comprehends, though in the process of carrying out marital responsibilities, what is sidelined is the existence of an entity as an individual, denying him/herthe opportunity to express individualistic thought. Marriage implies mutual consent, but once established, it imposes legal responsibilities that cannot be readily amended or dissolved, unlike other transactions.

Marriage, unlike conventional agreements, imposes legally enforceable duties and responsibilities that cannot be ignored or abandoned. Divorce has historically been considered more significant than marriage in terms of an understanding of ordered liberty. Without it, neither liberty nor justice could exist; it offers a possibility to end undesirable or destructive marriages. It prohibits potentially lethal threats to their liberty and well-being, preserving both the right to marry and the freedom to form relationships.

Article 14 of the Indian Constitution guarantees equal legal treatment to all individuals, which is imperative in the formulation of divorce laws in India. However, the influence of multiple religious traditions and personal laws has resulted in separate divorce laws for Hindus, Muslims, and Christians, resulting in uneven rights and processes. That discrepancy calls into question the principle of legal equality.

Conclusion

While this presents yet another strong argument for the Uniform Civil Code mentioned in Article 44 of the Constitution. Yet constitution in no way expressly provides for a "right to divorce," the Supreme Court has recognised this right as part of personal liberty, dignity, and equality, particularly in circumstances of irretrievable collapse or harm in a marriage. Nonetheless, the variation in divorce laws among different religious communities underscores the complexities of ensuring equal treatment in matters of divorce.

Though the right to marry has been explicitly denied by the Supreme Court in Supriyo Chakraborty vs Union of India, the right to divorce still offers a compelling case to be discussed, debated and argued about.

Author Note - This article has been written by Shivank Shukla, a student of RGNUL, Punjab.