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FAULT and NO FAULT Divorce Grounds ?

Should "gender neutral codified" HMA be amended to include "NO FAULT" Divorce as "grounds" for Divorce in India?
With a amendment like above the number of acrimonious matrimonial litigation under various Divorce Laws Sections will reduce the workload of over burdended Matrimonial Courts all over India is the thoght to ask above question by me.
Members please discuss this amendment representation to Law Commission of India for consideration unlike Irretriviable Breakdown stir doing its rounds post Hon'ble Justice Katju's recent Apex Court Judgment.
D. Arun Kumar, New Delhi


 9 Replies

Swami Sadashiva Brahmendra Sar (Nil)     23 March 2009

you mean provisions relating to divorce should be deleted and matrimonial parties should be given liberty to divorce at their will?


Dear Dr. Tripathi,


(1) Indian Matrimonial Law to be specific Divorce Law works on FAULT THEORY to concede to relief of Divorce by way of its Decree..RIGHT !

(2) It takes on an average 4 - 5 years to skim through volumenous materials on records produced by each spouse followed by witness evidences coupled with adjournments taken by either spouse and or by Hon'ble Court on Leave just to pin point the FAULT on one of the Liitigating so that Court can finally grant a Decree...RIGHT !

(3) If litigating Spouse have children out of the wedlock they suffer the most due to adult (read spouse in disagrement and or spouse / parents having temparamental differences)...RIGHT !

(4) Hence if NO FAULT Theory and or say NO FAULT GROUND is introduced in Divorce Law then it would become easier for spouse to just disclose what their grounds are for Decree and what they can give in to each other as well as welfare of child (including visitation rights of child / shared custody of child etc.) and walk away from a bad marriage at the earliest and re-start their respecitve life...IS THE EXPLANATION which I am putting forward for discussion here.

Please think LOUD, will it be afterall so bad to introduce NO FAULT as a GROUND in almost close to a Dozen Divorce Acts in India ????


D.Arun Kumar, New Delhi

PS: After reading Hon'ble Justice M. Katju's recent Judgment on Irretriviable ground for Divorce which he says is no Grounds, I started thinking how come Divisional Bench from the same Apex Court in so many other similar Judgments were able to make it (irretriviable grounds for divorce) a precedent and not Hon'ble Justice Kathju sahib ! Also read Law Commission Report # 90 ( especially page 19)

N.K.Assumi (Advocate)     24 March 2009

This is a thought provoking issues and required deep deliberation and not for argument sake. Our Constitution trumpeted " WE THE PWOPLE OF INDIA, having solemnly resolved to constitute india into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizen:..........This is butteressed by Article 15 of the Constitution : Prohibition on grounds of  religion,race,caste,s*xor place of birth: But change of religion as grounds of divorce goes on.

n.k.sarin (advocate)     24 March 2009

Dear Arun Kumar, There are provision in HMA, "divorce by Mutual consent" u/section 13B. I think this provision is similar to  NO FAULT THEORY.may be slichtly different.

n.k.sarin Advocate.


Swami Sadashiva Brahmendra Sar (Nil)     24 March 2009

dear mr. sarin you are right. but perhaps mr kumar is searching a way without consent of other party.


Mr. N.K. Sarin is absolutely right. I do agree with him.


Section 13B of HMA is already there for Divorce by mutual consent. However for this consent of both parties is a prerequisite. Apart from this the only ground which can be introduced is irretrievable breakdown of marriage, which has time and again been suggested by the Apex Court. Now it is for the Legislature to act upon it.

The whole idea should be to avoid litigation for years to obtain a Decree for Divorce by proving fault of the respondent, as in many cases it defeats the whole purpose, as the petitioner may not marry again till the divorce is finally through which may take years. However it should also be kept in mind that the process should not be made too easy which will encourage litigants to take this step casually. For example we see in Muslom Law the pronouncement of Talaq 3 times by the husband is enough dissolve the marriage. We have seen that this provision is grossly misused.

Therefore it appears that the best cource would be to introduce the ground of irretrievable breakdown of marriage as a ground for divorce, so that a court of law can apply its mind in each case judiciously, but it is not necessary to prove fault of any side.

sgadhan gupta (job)     15 December 2009



I really don’t have anything against my wife, still have respect for her. In the beginning (1994) – I was much immature (perhaps in emotion and man woman relation till date) and due to some ego from my side, the distance made between us. And it was keep on increasing in several way in many forms. I tried many times to compromise and adjust, but I couldn’t. Several women came in my life (no one through professional life). Now I am realizing, before it’s further late for both of us, it has to be done. We are sleeping in different rooms last 13 months, didn’t intercourse last 18 months (not more than 6 in last 3 years). But I cant live in this manner anymore. I am regularly taking drugs for sleeping, pressure and cholesterol and depression as prescribed by physician. Before it affects my job performance, I want to end it. I can take everything else, but not a bad performance of myself at workplace.
1st I want to change my marital status. I can’t act anymore everyday in home, and want to be fair at least this time to my wife. I know lots of odds will come from my mother and relatives, as everyone dislikes divorce socially. I have to shift for a separate residence (like I did in July 2008), might face financial crunch also. But still I have to do this, my mother is also suffering last few months, guessing my mental condition, and unfortunately in spite of my continuous, trying - relation between wife and mother isn’t healthy yet. My wife stopped using Sindoor, as she also feels marriage is over. I am 40 now, so still have some courage left. But after this it wont be possible. Even in my professional life, people wont take it easily. Still I want to take my own black spots, my failure- to the public, at least to the people who matters; cant play hide and seek game anymore. I stopped myself several times; thinking about my son, but truly speaking he almost doesn’t have any emotional relation with me. It’s perhaps my entire perhaps fault, as he saw, his mother is away from me, he also started maintaining a distance. So, please don’t say me to rethink this time. The issue was already pushed for 10years- but nothing changed. I shall fulfill all their (wife and son) other need like now, but not by staying together anymore. I know healthy parent relationship is essential for kids to grow. But the way I am living is not a healthy way, staying apart is a far better option surely.
Feelings of two human beings are involved in a couple’s married life. This could not be patched up by enforcement of law by courts. It is up to the individuals to mend themselves. A horse can be taken to water but it is the horse that should drink it. However, the law should not deny divorce if the marriage has really broken down. By forcing unity with a hammer in the hand, the law does not serve the sanctity attached to the institution of marriage by religions.
If the relationship of husband and wife wrecks beyond repair, what is wrong in recognizing that fact and allow them to live separately. How can one compel a wife or a husband to continue to live with spouse if they have fallen apart? If so compelled they would have to lead miserable life.
My wife knows all of these but still not ready to divorce me- "just for my son” and her status to society! How to tackle her and HONURABLE INDIAN COURT?
                 ARE WE REALLY MOVING FORWARD???
I filed my divorce petition on September 2009. The first date was 16th Dec 2009. On that day I just got another date.
When we talk about “India’s globalization”, it’s just a MOCKERY of its height. Just think about states (more than 50), where No- Fault divorce exists. But we Indians are different. We are really different! We had a custom of “SATI DAHO PROTHA”, “BOHUBIBHAOO of Brahmins”, “dowry” and so on, which no longer exists (at least in the so called Indian social society). All those practices are no longer permissible by Indian Law. Other states also had some old beliefs like “burning a witch”. The basic difference was, they at least used to admit their belief about the victim as “witch”, but we named her “SOTI” tagging with a very “noble” cause. Whenever we (or someone) stick to something old, we always tag that as “custom” , “tradition” etc. This is human nature. Man always wants to be in his stability and status co. But sometime a surgery is needed to avoid the gangrene- it’s done only when it’s necessary. Is not this the right (if not delayed already) time to address the problem associated with Indian Divorce Act. Please note, I am not the 1st to say this, the law commissions already felt this in 2008 and 2009 (reports enclosed). First one clearly recommended for UNIFORM MARRIAGE LAW (only for registered marriages) and the later one recommended introducing THE IRRETIVABLE BREAK DOWN OF MARRIAGE as a ground for divorce.
That means if my partner cant and me agree on a less affecting thing like divorce (which means to break the tie of marriage), how can we STAY TOGETHER in marriage thereafter. All of us know that, staying together (in any form) requires much more agreement than to stay apart from each other. That means I have to request (or beg) my wife to be free from marriage, just like a captive in a jail. Is not this obstructing my basic fundamental right as a citizen? When there is no such law for a father & son or mother & son relation (although maintenance clause is there), why would be such gross disparity in case of marriage? Is later the more “NOBLE” or “MUST ON” relations than the earlier?
But unfortunately our “ Honourable Judiciary” and “Honourable Ministry” are yet to to make the amendment in the divorce law. Whenever we delay something, it affects. In this scenario its affecting unfortunate people like me. Forget everything, just imagine a scenario in a bedroom of a couple where a Judge is sitting and deciding about the “cruelty” performed or not among the couple!
Now as an effect I have two options –
EITHER to stay in my marriage forgetting about my all own negative feelings,
OR to badmouth my son’s mother in the court to get rid of her. In both cases either my wife or I would be sufferer, not the Honurable Judiciary! Won’t the chances of reconciliation would decrease or diminish just because of amount of tension created between the two during the process, as more dates means more blames or more defense (which is also a part of attack mechanism)? Even the child would be indirectly sufferer for the bitterness between the parents as helpless witness of the whole event.
Breaking up was a hard decision for anyone. I thought over years. But while doing, why we (the process itself) need to be nasty instead of peaceful? If a marriage can be done in a one-month notice period, why the divorce would be delayed for YEARS?
I like to highlight some facts in countries, where there is NO- FAULT divorce: -
·        A decline in the rates of domestic violence (which is obviously concern in India)
·        These laws empower a man or woman in an abusive marriage and make it easier to leave and live separate
·        Means less conflict during divorce, which means less emotional harm to children whose parents, are divorcing
·        Shortens the length of time it takes to obtain a divorce, which, in turn, shortens the amount of time spent in a stressful situation causing physical and mental damage to involved party (as in my case, I am having anti depression drugs as prescribed)
·        Financial settlements are based on need, ability to pay and contribution to the family finances, rather than on fault
·        Helps reduce the heavy caseloads of family courts
At the end we all must remember-
So I humbly pray to consider my case as an Individual, not as an “Ideal Husband”, and grant the divorce without further delay. I am responsible for my job (doing it last 13 years) as well as my family, and will give reasonable maintenance (the only sub clause was recommended as check measure for divorce for Irretrievable Break Down) as decided by the Honourable Court.
Thank you,

Daksh (Student)     16 December 2009

Dear All,

In other words doesn't it means :

Convenience taking a edge over institution.

Previously it was joint family concept then came the Nuclear family and the last nail in the coffin shall be the no family only individual. (Redefining the Social Contract Theory if I may say so.)

There is a another aspect of it just scrap the legal sanction to the institution of marriage based on religion as in the changing society like live in relationship convenience should be the catch word.

Last but not least we have the problem before us for the purposes of finding solution we have to analyse the past and have to regulate our present so as to achieve the objective for a better tomorrow.

Kudos Mr.D Arun Kumar for initiating such a well thought out thread.

Best Regards


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