FAMILY LAW-I

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GUJARAT NATIONAL LAW UNIVERSITY

Semester- V

Family Law-I

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Creating Space for No fault Divorce in India legal context: Analysis of Indian
law on divorce and related theories.
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SUBMISSION BY –
Shivam Kaith (18B116)
B.S.W LL. B, Gujarat National Law University
SUPERVISIOR –
Mrs. Garima Goswami
Assistant Professor of Law, Gujarat National Law University

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TABLE OF CONTENTS

TOPIC P.NO
DECLARATION

EXECUTIVE SUMMARY

ACKNOWLEDGEMENT

LIST OF CASES CITED

INTRODUCTION

REVIEW OF LITERATURE

ANALYSIS

CONCLUSION

AUTHORITIES/ REFERENCE MATERIAL

GNLU Project* Details and Academic Integrity Form

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*
(Seminar paper/Research paper/Project/Article)

Student Name: Shivam Kaith

Registration No. and Semester: 18B116 (Semester V)

Subject: Family Law-1

Faculty Member: Mrs. Garima Goswami

Faculty Member Assistant:

Allocation Date:

Title Registration Date:

Reason for selection of title:

Synopsis Filing Date:

Final Version Filing Date:

Faculty’s pre-submission progress report,

if necessary:

Extension of timeline requested and

approved by faculty:

Viva-Voce/Group Discussion:

Total duration:

Faculty Member Signature

Academic Integrity Declaration

I warrant and represent that the attached report/research work/articles does not infringe upon any
copyright or other right(s), and that it does not contain infringing, libelous, obscene or other unlawful
matter and that I have given appropriate credit to the original author or source of information and fully
adhered to GNLU research guidelines. I am aware that the non-compliance with the GNLU academic
integrity directive may result into non-evaluation of the academic/research work, attracting failure in
the subject or course and any other measures as decided by the concerned faculty members.

Shivam Kaith (19/10/20)

Student Signature & Date

*PDAIF is an integral part of the GNLU Exam Records and shall be considered and complied with the GNLU
Exam Rules. Student shall be responsible to ensure full compliance with the above details.

Original: Exam Department

Copy: 1. Student 2. Faculty Member

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ACKNOWLEDGEMENT

This research paper has been made possible through the help, support and cooperation of our
Professor, Mrs. Garima Goswami. I thank her for her suggestions and guidance throughout
our short journey of compiling this research paper. I would also like to express our gratitude
towards the staff and administration of Gujarat National Law University without whose
cooperation during the times of Present Pandemic and global crisis, this paper would not have
been a success.
I would also like to thank my parents for helping and providing us monetary support to
conduct this study. Last, but not the least, we are grateful to the Almighty god for the kind
blessings which helped us to carry out the work without any difficulty. Thank you.

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LIST OF CASES CITED

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INTRODUCTION

Family is one of earliest establishment that has played a significant role in stability and
prosperity of human civilization.1 The amazing persistence of Indian Culture is a consequence of
the permanent position accorded to the family, for civilization is directly dependent on the
effective functioning of the family; and in India the Family attained a social importance, even a
religious significance. Almost everything of lasting value in civilization has its roots in the
family.2
The family was the first successful peace group, the man and woman learning how to adjust their
antagonisms while at the same time teaching the pursuits of peace to their children. Family
harmony provides a sense of belonging and a feeling of security unlike many other types of
relationships. When conflict arises, it threatens that security. Whether the disharmony initiates
from within the family unit or from external sources, individual family members and the family
as a whole can experience a range of negative emotions and consequences. Unresolved conflict
may irreparably damage a marriage and the entire family if family members do not seek help.3
DIVORCE
A divorce is a court judgment ending a marriage. The court requires a "legal reason" for the
divorce. In addition to legally ending of the marriage, the court looks at other issues which need
to be decided before the divorce becomes final.4
Divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union
of the husband and wife. Manu has declared that a wife cannot be released from her husband
either by sale or by abandonment, implying that the marital tie cannot be served in any way. It,
therefore, follows that the textual Hindu law does not recognize a divorce. Although Hindu law
not contemplates divorce yet it has been held that where it is recognized as an established custom
it would have the force of law.5
FAULT AND NO-FAULT THEORY
There are two theories to divorce laws, i.e. fault theory and no-fault theory. As the name
suggests, in these theories, to obtain a divorce, the party must either show a fault for which a
divorce may happen and, in the latter, there is no requirement of showing fault within the
marriage.6
A fault divorce may be granted when the required grounds are present and at least one spouse
asks that the divorce be granted on the grounds of fault. Only some states allow fault divorces-
The traditional fault grounds are:
1
Halsbury's Laws of India / Family Law, vol 2 (3rd edn Butterworths India 2007).
2
Ibid.
3
Subbarao GC, Family Law in India (C Subbiah Chetty 1975).
4
Santhanakrishnan R, “Laws Governing Divorce in India” (LawyeredMay 25, 2020)
<https://www.lawyered.in/legal-disrupt/articles/laws-governing-divorce-india/> accessed October 19, 2020
5
Ibid.
6
Nolo, “No Fault Divorce Vs. Fault Divorce ”(www.nolo.comFebruary 15, 2013) <https://www.nolo.com/legal-
encyclopedia/no-fault-divorce-vs-fault-divorce-faq.html> accessed October 22, 2020

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 cruelty (inflicting unnecessary emotional or physical pain) -- this is the most

frequently used ground for divorce
 adultery
 desertion for a specified length of time
 physical inability to engage in sexual intercourse, if it was not disclosed before
marriage.

NO FAULT DIVORCE
“No fault" divorce describes any divorce where the spouse asking for a divorce does not have to
prove that the other spouse did something wrong. All states allow no fault divorces.
To get a no-fault divorce, one spouse must simply state a reason for the divorce that is
recognized by the state. In most states, it's enough to declare that the couple cannot get along
(this reason goes by such names as "incompatibility," "irreconcilable differences," or
"irremediable breakdown of the marriage").7
INDIAN LAW ON DIVORCE
The Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955,
there was no provision for divorce. The concept of getting divorced was too radical for the
Indian society then. The wives were the silent victims of such a rigid system. Now the law
provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law. The
actual benefactors of such a provision are women who no longer have to silently endure the
harassment or injustice caused to them by their husbands. However, to prevent hasty divorces,
the law lays down certain restrictions and grounds for obtaining a divorce.8
The Hindu Marriage Act,1955 originally recognized the fault grounds for obtaining the decree of
divorce. For this purpose, nine fault grounds were mentioned in the Act. Sec. 13(1) lays down
these fault grounds, on which either the husband or wife could sue for divorce. Two fault
grounds have been dealt with in the sec. 13(2),9 on which wife alone could seek the decree of
divorce. In 1976, the grounds for divorce by mutual consent have been recognized through
provision of the section 13 (B) of the Hindu marriage Act,1955.
NO FAULT DIVORCE IN INDIA
Divorce in India recognizes two theories, I.e.-
1. Fault theory
2. Divorce by mutual consent
We shall examine possibility of different theories of no-fault divorce and whether they can be
implemented in India through judicial precedents. We shall also examine whether it is viable
option for India to follow no fault divorce theory.

7
Nolo, “No Fault Divorce Vs. Fault Divorce” (www.nolo.comFebruary 15, 2013) <https://www.nolo.com/legal-
encyclopedia/no-fault-divorce-vs-fault-divorce-faq.html> accessed October 22, 2020.
8
Subha rao GC (n 3).
9
Hindu Marriage act, Sec 13(2).

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REVIEW OF LITERATURE

 Finding fault with no-fault divorce by Andrea Mrozek, 2012

This is an article featured in Institute of Marriage and family law in Canada. The article
talks about Federal divorce law created in 1968. Prior to this, provincial laws allowed for
divorce with cause, typically adultery. Quebec and Newfoundland marked the exceptions
where divorce could only be obtained by a private act of Parliament. The article talks that
the biggest problem with unilateral divorce is that it fails to acknowledge the benefits to
society of marriage. There is no such thing as a private marriage. private couple
relationships are called dating and as a result, marriage is a communal affair, with
implications for society.

 Economic Theory’s Stance on No-Fault Divorce, STEPHANE MECHOULAN,

Department of Economics, University of Toronto.
This article explores key insights that economic theory can shed on the issue of no-fault
divorce in the United States, addressing modifications in the incentive structure of
individuals that resulted from the legislative reforms of the 1970s. After stressing the
importance of correctly interpreting and classifying divorce laws, this work investigates
the contributions of the theory of property rights, the contributions of game theory and
intra-household bargaining, and the contributions of general equilibrium analysis in our
understanding of how divorce laws work and what their impact is. By doing so, this
expose´ analyzes the theoretical consequences of no-fault divorce on the decision
whether to get married or divorced, on the characteristics of spouses and divorcees, on
divorce rates, and on marital-specific and non-marital-specific investments.

 The Effect of No-Fault Divorce Law on the Divorce Rate Across the 50 States and
Its Relation to Income, Education, and Religiosity. Nakonezny, Paul & Shull,
Robert & Rodgers, Joe. (1995).
This article used a quasi-experimental pre-post treatment design and archival data from
the National Center for Health Statistics, the authors examined the effect of no-fault
divorce law on the divorce rate across the 50 states across the United states of America.
Also, education and income data from the United States Bureau of the Census and
religiosity data from the Glenmary Research Center were used to assess the relation of
education, median family income, and religiosity to the post-no-fault divorce rate. In this
study, Results revealed that no-fault divorce law had a significant positive effect on the
divorce rate across the 50 states. Of the moderators that we considered, median family
income was the only significant predictor of the change in divorce rate; the adjusted post-
no-fault divorce rate increased as median family income increased.

 Marriage and Some Troubling Issues with No-fault Divorce, Peter Nash Swisher.
This article talks about no-fault divorce “revolution” of the 1970s and a number of
commentators who have largely discounted the role of fault in contemporary American
divorce law. The article also mentioned the American Law Institute’s proposed Principles
of the Law of Family Dissolution (2000) which dismissed the role of marital fault in the

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dissolution of marriage, as well as any other noneconomic contribution of a spouse to the

marriage and the well-being of the family.

ANALYSIS

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Conclusion

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REFERENCES

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