Divorce As A Fundamental Right - Balancing Personal Liberty And Constitutional Principles In India
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Category: Constitutional & Human Rights
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DIVORCE AS A FUNDAMENTAL RIGHT: BALANCING
PERSONAL LIBERTY AND CONSTITUTIONAL PRINCIPLES IN INDIA
Rohit Tamang LL.M (Constitution), CMR University School of Legal Studies
ABSTRACT
This paper analyses the ambit of making divorce a constitutional right in India vis-a-vis the ground it might have in Articles 21 and 14 guaranteeing personal liberty, dignity, and equality. This research thus juxtaposes the development of the rights to marry and to divorce thereby contrasting the law implications of marriage as a civil contract in nature and its character as being binding with the significance of divorce to individual freedom. It further analyzes the unequal grounds for divorce from various religious persuasions and makes clear systemic discriminations. Although the Supreme Court has called for judicial reform over the years, divorce was not granted constitutional status by it. Hence, this paper argues that modern divorce laws should find their place in contemporary norms to bring balance, independence, and dignity into individual life.
Keywords: Divorce, Fundamental Rights, Article 21, Personal Liberty, Equality, Indian Constitution, Gender Neutrality, Legal Reform, Religious Personal Laws.
INTRODUCTION
The essential freedom to end a marriage not only guarantees the ability to leave a union but also, crucially, ensures the opportunity to enter into a new marital relationship. 1 The legal recognition of marriage as a right is a fairly recent phenomenon, established only for about five decades. In contrast, the Supreme Court has been dealing with divorce matters for a considerably longer time than that, over 150 years. The above juxtaposition puts forward the fact that though marriage right is recognized as a right only lately, it is one thing which has been well discussed in the legal world for a much more extended period.
2 The Supreme Court clarified in 1888 that although marriage is often described as a civil contract, meaning it's based on mutual agreement and does not necessarily have to be performed by a religious ceremony, it goes beyond the scope of a typical contractual agreement. While mutual consent is important for a marriage to be established, once the union is formed, it generates legal obligations that the parties cannot easily modify or terminate as they might with other contracts. Marriage, unlike standard agreements, imposes duties and responsibilities that are legally binding, and the couple cannot simply disregard or abandon these commitments at will.
3 Historically, from a constitutional standpoint, divorce appears to have been more significant than marriage “implicit in the concept of ordered liberty"'4' such "that neither liberty nor justice would exist"5 If divorce were denied to everyone. Although the right to divorce is by no means something to rejoice over, it is at least on a par with the right to marry in importance. Divorce gives an opportunity to escape miserable or otherwise detrimental marriages. It forbids possibly deadly attacks on their freedom and well-being. To this extent, it serves to protect just as does the right to marry the freedom to create a relationship. 6 In India, there run parallel two different legal systems: one for Hindus, which permeates every walk of life, and the other relating to Muslims,
1 Loughran V. Loughran, 292 U.S. 216 (1934) (Upholding Woman's Subsequent Marriage As Valid After
Receiving Divorce Based On Her Adultery-Di Vorce Which, At Time, Required Her To Refrain From Remarriage). Criminal Adultery Laws Were Not The Only Penalty For, And Protection Against, Adulterous Conduct. The Statute Involved In Loughran Was The District Of Columbia's Ban On Remarrying Because, While Divorce Based On Adultery Was Permitted, "In Such Case The Innocent Party Only May Remarry." Id. At 221-22.
2 Cheever V. Wilson, 76 U.S. 108 (1869) (Affording Full Faith And Credit To Indiana Divorce).
3 Maynard V. Hill, 125 U.S. 190, 210-11 (1888).
4 Whalen V. Roe, 429 U.S. 589,598 N.23 (1977) (Recognizing "The View That Some Personal Rights 'Implicit In The Concept Of Ordered Liberty,' Are So 'Funda Mental' That An Undefined Penumbra May Provide Them With An Independent Source Of Constitutional Protection." (Citing Palko V. Connecticut, 302 U.S. 319, 325 (1937), Overruled By Benton V. Maryland, 395 U.S. 784 (1969))).
5 Palko, 302 U.S. At 326
6 179. Kathleen Burge, For Gays, Divorce May Soon Be A Useful Right, Bos. GLOBE, Dec. 3, 2003, At B1
(Quoting Professor Suzanne Goldberg Of Rutgers School Of Law In Newark). dealing primarily with issues like marriage, divorce, and succession. Though these separate religion-based legal systems have survived, they have lately been the subject of more and more resistance and criticism. 7 For Muslims in India, the Muslim Personal Law (Shariat) Application Act of 1937 is the legal framework governing Islamic practices in personal matters. This legislation includes issues such as property inheritance, nuptial agreements, and the dissolution of marriages. This act, therefore, specifically applies to the Muslim community, indicating how such personal issues are handled in their religious context. 8 The 1939 Act on Dissolution of Muslim Marriages specifies the grounds on which a Muslim woman may apply for divorce.
This legislation determines the conditions under which she is lawfully permitted to dissolve her marriage as per Islamic law. 9 For Hindus, the legal framework governing divorce is established by the Hindu Marriage Act of 1955. 10 One might suppose two very different systems of divorce and therefore completely dissimilar regimes. Yet, as is demonstrated below, the divorce regimes in each of these systems are closer to each other than might be anticipated.
2. Examining Divorce as a Fundamental Right and Its Relationship to Individual
Freedom in India from a Constitutional Standpoint Although the Indian Constitution does not say anything about having a right to divorce as a basic right, Article 21 would provide for that because it safeguards the right to life and personal liberty, while Article 14 also provides for protecting the right of equality under certain conditions. The interpretation of these constitutional provisions may extend to include divorce rights under certain circumstances.
1. The Supreme Court has interpreted Article 21 of the 1949 Indian Constitution that deals
with the Right to Life and Personal Liberty widely. It recognized that a dignified life involves the capacity to make decisions on personal matters, including the right to end a marriage. The Court has associated the right to divorce with rights to dignity and
7 Tahir Mahmood, Islamic Family Law
Latest Developments in India, in ISLAMIC FAMILY LAW 295, 297 (Chibli Mallat & Jane Connors eds. , 1990); Basu Rekha, Threat to India's Secular Life, DES MoINES REG. , May 26, 1996, at 3. For a brief period following the 1996 elections in India, the Bharatiya Janata Party ("BJP"), a political party comprised of Hindu nationalists, was in power. See id. The BJP promised to create a uniform civil code, subjecting Hindus and Muslims to the same laws. See id. This pledge has been viewed as a drive for persecution of religious minorities rather than a quest for uniformity. See id. ; see also M. R. Narayan Swamy, Indian Supreme Court Orders Universal Law for Hindus, Mos lems, AOENCE FRANCE-PRESSE, May 11, 1995, at Al. 8 Muslim Personal Law (Shariat) Application Act, No. 26, § 2 (1937) (lndia)(amended 1943). For discussion of this statute, see infra part III. A.
9 Dissolution of Muslim Marriages Act, No. 8 (1939) India). For discussion of this statute, see infra part llI. A. 3. b. 10 Hindu Marriage Act, No. 25 (1955) (India)(amended 1976). For discussion of this statute, see infra part III. B individual freedom, realizing that when a marriage becomes unsustainable or harmful, people should have the right to dissolve it. For example, while discussing irretrievable breakdown of marriage or when a marriage entails mistreatment, the divorce facility is regarded as forming part of a person's right to individual freedom and dignity.
2. The Indian Constitution's Article 14 guarantees equal treatment under the law, ensuring
that every individual receives fair and impartial legal consideration, regardless of their status or background. This principle is quite important while framing laws relating to “divorce” in India. The law should be such that it allows people of all genders, religion, and other personal attributes to have equal access to divorce and other related legal procedures. However, in India, divorce laws have been influenced by various religious traditions. This results in people from different religions following different rules for divorce. For instance, Hindu, Muslim, and Christian divorce laws are all different and result in unequal grounds and processes for divorce depending upon one's religion. This has caused debates about “equality”, because men and women might not have the same rights or options when it comes to divorce.
Moreover, the laws can vary based on the religion of the person seeking a divorce, which raises questions about whether everyone is treated equally under the law. Though the Constitution itself does not grant any such "right to divorce", yet the Supreme Court held the same with other rights including personal liberty, dignity and equality. These further states that the Indian legal jurisdiction would also endorse such notion of people getting legally allowed divorce in valid reasons mainly if it gets irretrievable in a way or if harmful in a marriage. The laws relating to divorce, however, vary with different religious groups. There are several communities that have their own set of personal laws, such as Hindus, Muslims, Christians, and others, and their laws provide different provisions on which individuals can base a divorce. However, in the case of Saumya Ann Thomas v.
The Union of India 11, the Kerala High Court held that mutual consent to divorce should be accorded to the couple, having held that the existing two-year separation requirement is unjustified. It held that it infringes upon the rights of the couple to have a divorce, falling under the purview of the right to life as outlined in Article 21 of the Constitution of India. More over the court mentioned that the right of divorce
11 The Saumya Ann Thomas V. The Union Of India ,(2010) ILR 2010 (1) Ker 804 (India).
is incorporated in Article 14 with the right to equality since followers of other religions face shorter periods such as one year waiting time for Hindus and Parsis. Rather than striking it down the Court resolved to read it down (reduce it to one year waiting time from two years for being unfair). This is the heart of the principle in questioning or nullifying religious practices or laws that contradict the rights of the Constitution. This sets precedence wherein constitutional provisions on equality and individual liberty supersede religious law, further underlining supremacy over such basic rights over religious doctrines. 12 The dissolution of marriage due to irretrievable breakdown was addressed by India's Supreme Court in the legal matter of Jatinder Kumar Sapra v. Anupama Sapra. 13 The Court found that the marriage had broken down irretrievably, and both parties wanted separation.
The long period of living separately was held to be proof of an irreparable marital relationship. Utilizing its authority under Article 142 of the Constitution14, which allows the Court to issue orders for full justice, the Supreme Court granted a divorce decree. The Court clarified that such power should be used very cautiously and only in exceptional cases where the marriage is deemed "totally unworkable, emotionally dead, and beyond salvation. " The judgment in Jatinder Kumar Sapra v. Anupama Sapra reflects the application of the irretrievable breakdown doctrine in Indian law. With the exercise of extraordinary powers under Article 14215, the Court made possible the termination of a marriage which could not be saved. This judgment reflects personal autonomy and the need to face the reality of failed marital relationships. In Shilpa Sailesh v.
Varun Sreenivasan16, the Supreme Court of India discussed the case relating to the breakdown of marriage through irretrievable failure. The Court showed appreciation for the fact that the conjugal relation had reached an unbearable level where both spouses sought separation. Living together for a long period as stated above is an example of an irreconcilable marriage. The Supreme Court, under article 142 of the constitution, which gives it its power to issue orders for doing complete justice, granted the decree for divorce. Under this provision, the power was not to be diluted and used only in "exceptional circumstances where, in fact, the marriage is completely unworkable, emotionally dead, and
12 Avon Center Work Product Legal Information Institute
13 Indian Kanoon” Jatinder Kumar Sapra V. Anupama Sapra 2024 Insc 382
14 Constitution Of India 1949
15 Ibid
16 2023 Insc 468
beyond salvation. ” The decision Shilpa Sailesh v. Varun Sreenivasan 17demonstrates that in Indian jurisprudence there applies the irretrievable breakdown doctrine. Using an extra ordinary power under Article 142, the Court there gave permission to terminate unsalvageable a marriage. This judgment provides testimony to the importance that Indian law accords toward human autonomy and the awareness for the reality of unmitigated marital failures. 18 In the case of Indira Jaising v. Union of India19, was such a landmark case wherein Indira Jaising a senior advocate in supreme court pleaded in the Supreme Court of India for changes in the law regarding marriage. The major objective was to seek reforms in gender equality and individual liberties as provided under the Indian Constitution.
The case filed by Jaising urged that under Article 21 of the Indian Constitution20, divorce was also a basic part of personal liberty. She cited the fact that the right to end a marriage was equal to the right to get married. She felt that compelling a person to live in a failed marriage denied them their personal freedom and mental liberty. She further argued that the unequal provision of divorce laws mainly exploited women. She advocated for divorce laws that treat the couple as equals rather than gender-based laws. She demanded the abolishing of patriarchal principles in religious personal laws and making irretrievable breakdown of marriage a ground for divorce. She believes in no-fault divorces that would make divorces easier by removing wrongful fault in either party.
More recently, Jaising urged the Supreme Court to "modernize family law," bringing it in line with the views of today's society regarding relationships. Divorce should be a recognized human right, following the international trend. She summed up her argument saying, "The freedom to leave a marriage is essentially to personal liberty and thus, must be protected in law to preserve individual autonomy and dignity. “The purpose of Indira Jaising v. Union of India, was the establishment of divorce as a constitutional right in India as well. It is of the view that one may obtain divorce without much botheration and delay. The Supreme Court of India did not directly address the central issue of whether divorce itself is a fundamental right in this case. However, the Court acknowledged the constitutional importance of personal liberty and dignity21, aligning with Indira Jaising's arguments that
17 Ibid
18 Supreme Court Of India Digital Supreme Court Reports The Official Law Report Fortnightly
19 Writ Petition (C) No. 454 Of 2015
20 The Constitution Of The India 1949.
21 Article 21 Of The Indian Constitution Guarantees The Right To Life And Personal Liberty, Which Has Been Interpreted By Courts To Include The Right To Make Choices Regarding Personal Relationships, Including The Right To Exit A Marriage. This Aligns With The Right To Dignity And Freedom From An Abusive Or Irretrievably Broken Marriage. See K. S. Puttaswamy V. Union Of India (2017) (9 Scc 1). the right to dissolve a marriage is closely connected to the right to life and personal liberty under Article 21 of the Indian Constitution. The Court held that marriage and divorce laws must be equitable and should not disproportionately impact one gender over the other.
The petition brought attention to the inequities in the legal system, particularly those embedded in personal religious laws, which Jaising argued should be reformed to be more gender-neutral and reflective of modern societal values. While the Court recognized the need for reforms and the right to divorce as important, especially in cases of irretrievable breakdown of marriage22, it did not grant an immediate directive. The Court expressed concern over the complexity of family law reform and emphasized the need for a structured approach toward reforming laws related to marriage and divorce. The judgment also acknowledged the importance of recognizing irretrievable breakdown of marriage as a valid ground for divorce and the need for gender-neutral divorce laws that would ensure equal rights for men and women.
In conclusion, although the Supreme Court did not deliver a definitive ruling on whether divorce is a fundamental right, the judgment did underscore the constitutional importance of personal liberty and dignity and pointed toward the need for legal reforms to make divorce accessible, equitable, and respectful of individual rights.
CONCLUSION
The possibility of divorce being a fundamental legal right in India. It demonstrates how the right to dissolve a marriage is related to personal liberty, human dignity, and equality as provided for by Articles 21 and 14 of the Indian Constitution. Although marriage is deeply rooted in cultural and legal systems, the right to dissolve a marital union is considered fundamental for individuals to escape harmful or unsustainable relationships. The Indian judicial system has accepted the reality that divorce laws had to be defined not only to provide equal treatment to all citizens irrespective of gender or faith but also in cases where a relationship is beyond redemption. Notable legal cases, like Jatinder Kumar Sapra v. Anupama Sapra and Indira Jaising v. Union of India, were some of the instances that clearly demonstrate this development in Indian thought.
The analysis suggests that family law should be updated according to the current values in society. Divorce procedures should be fair, accessible, and considerate of the rights and well-being of the individuals involved. 22 Irretrievable Breakdown of Marriage has been acknowledged by courts in various cases, including the Supreme Court's decision in Nikhil Soni v. Union of India (2020)