This article is written by Minhaj Nazeer. It talks about the concept of no fault divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. The difference between divorce under fault and no fault theory has also been discussed, followed by the relevant case laws and some FAQs.

Introduction

In India, marriage is both a sacrament and a contract; it is based on an offer and acceptance. At the same time, it is a sacrament because of its religious ties. Divorce is the dissolution of a marriage by a competent court. Getting a divorce in India is very tiresome, with lengthy legal proceedings and intentional dragging by either of the parties. The divorce is mainly an ego battle between the partners. In certain cases, couples get divorced very late due to lengthy court battles. One of the major advancements in Hindu law is no fault divorce; this has helped reduce the legal procedures. This article looks into the concept of no fault divorce from an Indian perspective. Further, an international perspective based on a few countries has been discussed in brief.

What is a no fault divorce 

In the stereotypical society, marriages dissolve with faults by either of the spouses. No fault divorce is an exception. No fault divorce is a concept when both spouses decide to divorce without blaming each other. Here, parties are not required to prove why they need a divorce, like domestic violence, adultery, etc. During the documentation in court, parties can opt for the ‘no fault divorce’ option in the reason column. Opting for a no fault divorce does not essentially mean both parties to the divorce are flawless. In certain cases, one of the parties can be abusive, but the petitioner opts for a no fault divorce. The main objective of choosing this option is that the parties do not necessarily have to prove anything to the court during the proceeding.

Difference between divorce under fault and no-fault theory

Generally, when filing a fault divorce, the person seeking the divorce has to prove the grounds of the divorce and should have valid grounds for why the marriage should end. Usually, the grounds for divorce are adultery, abandonment, bigamy, rape, sodomy, habitual intoxication, etc. Most of the couples opt for no fault divorce, even though they have the option not to, to avoid lengthy legal proceedings.

Fault theory

In this theory of divorce, one of the spouses files a petition with the court to dissolve the marriage because of the faults of the other spouse. It is a mandate to have a guilty party and an innocent party in this format of divorce. Here, only the innocent party can seek remedy. If any of the parties are guilty of committing a matrimonial offence, only the aggrieved party is entitled to divorce. The guilt theory introduced the right to dissolve a marriage in the matrimonial law. 

No Fault theory

This theory of dissolution of marriage is based on the fact that marriage not only fails because of fault or guilt but also because the spouses are not willing to stay together since they are incompatible. Despite the efforts of both spouses, they have decided to part ways. The aspect of consent theory establishes that if two persons can marry by will, they should be allowed to dissolve of their own will. After the amendment of the Hindu Marriage Act, 1955, spouses can move out at their will with mutual consent. But this application includes a cooling period of six months, and divorce will be granted after 18 months.  

Common grounds under Hindu Marriage Act, 1955

1. Adultery – One of the parties voluntarily having sexual intercourse with any person other than his or her spouse.
2. Cruelty – One of the spouses is treating the other with cruelty.
3. Insanity – One of the spouses is mentally ill and it cannot be cured to such an extent that the petitioner cannot live with the spouse.

Apart from this, other major grounds are leprosy, conversion, presumption of death, etc.

Common grounds for divorce under the Hindu Marriage Act and other personal laws.

Grounds	Hindu Marriage Act, 1955	Special Marriage Act, 1954	Dissolution of Muslim Marriages Act, 1939	The Divorce Act, 1869
Adultery	Section 13(i)	Section 27(1)(a)	Section 2(viii)(b)	Section 10(1)(i)
Cruelty	Section 13(1)(i-a)	Section 27(1)(d)	Section 2(viii)(a)	Section 10(1)(x)
Desertion	Section 13(i-b)	Section 27(1)(b)	Section 2(ii)	Section 10(1)(ix)
Unsoundness of mind	Section 13(iii)	Section 27(1)(e)	Section 2(vi)	Section 10(1)(iii)
Suffering with venereal disease	Section 13(v)	Section 27(1)(f)	Section 2(vi)	Section 10(1)(v)
Presumption of Death	Section13(vii)	Section 27(1)(h)	Section 2(i)	Section 10(1)(vi)

No fault divorce in India 

Marriages are governed under Hindu law in India for Hindus, Buddhists, Sikhs, and Jains. Section 13B of the Hindu Marriage Act, 1955, essentially deals with Hindu marriages and divorces in India. After the recent amendment of Section 13B, no fault divorce was introduced. The amended Section allows divorce mutually when both parties agree to end the wedlock without mentioning a fault. In Muslim law, the concept of wedlock is contractual and dissolvable. Khula and Mubarat are the two types of divorce in Islamic law. Mubara is by mutual consent, and Khula is demanded by the wife to dissolve the marriage. In the Special Marriage Act, 1954, the ground for mutual divorce is dealt with in Section 28. Here, both parties are required to file a petition with the district court on the ground that they were not together for more than a year. In the Divorce Act, 1869, a post amendment in 2001 added Section 10A and included divorce by mutual consent.

Provisions of no fault divorce in India

The Hindu Marriage Act, 1955, established a number of provisions related to No fault divorce. Section 13B tells about the divorce by mutual consent of the spouses. There are four key provisions related to No fault divorce. 

Mutual Consent 

It is mandated that both spouses agree to the separation and file a joint divorce petition. It should be filed before the family court with a written statement that they have been separated for more than a certain period of time and have agreed to dissolve the marriage.

Reasonable period of separation 

The law mandates a minimum separation period of twelve months before filing a joint divorce petition. This aims to give the spouses a chance to reconcile before the actual divorce. In certain cases, spouses change the decision and withdraw the petition.

Cooling-off period

After the filing of the joint divorce petition, the court imposed a mandatory cooling off period of six-months. During this period, the spouses can reconsider the decision of mutual divorce and confirm the decision to reconcile or not.

Consent

After the cooling-off period, spouses are mandated to appear before the court once again to reconfirm their decision of mutual divorce. If the court feels the divorce is genuine and consensual, after this, the court grants a divorce decree.

Benefits of no fault divorce

Dignity and autonomy

This type of divorce lets spouses make decisions regarding their dissolution of marriage and establish autonomy. This allows them to separate from themselves without any stigma, proving one of them is at fault. This sustains their dignity and emotional well-being. 

Less conflict

No fault divorce reduces hostility and extends legal battles. This pushes the spouses to focus on dissolving the marriage by rapidly solving practical conflicts such as property division, child custody, and spousal support. It also helps to reduce the stigma and emotional and financial issues of the parties.

Efficient resolution

No-fault divorce dissolves the marriage rapidly, making it more efficient and requiring fewer legal procedures. The mutual consent and cooling off period provide the spouses with an opportunity to reconcile by ensuring that the divorce is not taken impulsively.

Child-centric approach 

Mutual divorce has a child-centric approach because it encourages spouses to cooperate and maintain a cordial relationship for the sake of their kids’ well being. It gives importance to the best interests of the child and aims to reduce the impact of divorce on their lives.

Documents required for no fault divorce 

The spouse must provide the necessary documents while filing a no-fault divorce petition. The parties should give essential information about their immediate family and their biodata. Also, other information such as past year IT returns, salary, and description of assets.  

• The spouses should give information about their families and their biodata 
• The spouses should provide their IT return files for previous years 
• Spouses are required to submit informative snippets of job life and income per annum 
• In the description of assets, both liquid and illiquid, the spouses should mention everything separately 

Judicial pronouncements 

Sureshta Devi v. Om Prakash (1991)

In this case, the Court interpreted Section 13-B of the Hindu Marriage Act and came to the conclusion that the filing of a joint petition does not allow the court to make an order for divorce. The parties will have a second thought, and a statutory waiting period of 6 to 18 months should be provided as a chance to reunite.

Facts of the case 

The wedlock of the parties took place in 1985; later, a petition under Section 13B for divorce by mutual consent was filed. The statements of the parties were recorded on 9th January, 1985. Later, the appellant stated that the statement recorded earlier for the purpose of mutual consent was under pressure and threat from the respondent. It was also alleged that before filing the petition, the appellant was not allowed to accompany her during the consultation and was not permitted to go to court together. Hence, the appellant withdrew consent for the petition. Initially, the District Court dismissed the petition, but on appeal, the High Court reversed the order and granted divorce. The Supreme Court opined that consent to a petition for mutual consent cannot be unilaterally withdrawn. Hence this appeal. 

Issues 

Whether, under Section 13B of the Hindu Marriage Act, 1955, a party can unilaterally withdraw or if the consent is irrevocable?

Reasoning 

In Jayashree Ramesh Londhe v. Ramesh Londhe (1984), the Court opined that the critical obligation for mutual consent under Section 13B is during the filing of the petition. In another case, Smt. Chander Kanta v. Hans Kumar and Anr. (1988), the Court concluded that if the consent was given voluntarily, it would not be possible for any party to nullify by just withdrawing the consent.  

Judgment

Justice K. Jagannatha Shetty came to a conclusion by leaving the grant. After analysing Section 13B of the Act and the facts of the case, it was obvious that mere filing of the petition with mutual consent does not authorise a court to make an order on the same. The Section also mandates that if any of the parties is willing to withdraw their consent, the court cannot pass a decree of divorce by mutual consent. The Supreme Court admitted the appeal and set aside the decree for the dissolution of the marriage. 

Shilpa Sailesh v. Varun Sreenivasan (2023) 

In this case, the parties demanded a decision on the case of delivering justice as mentioned under Article 142 of the Constitution of India. In the judgement, the judges delivered certain guidelines with respect to the constitutionality of no fault divorce.

Facts of the case 

In 2014, the spouses moved to the Supreme Court in order to obtain a no fault divorce, citing that their marriage had failed irretrievably. Later, after a year, the Apex Court granted the divorce under the powers of Article 142 of the Indian Constitution. The ground of the divorce was that the marriage was irretrievably broken down and dead. While clearing the case, the Apex Court found that there are several other cases pending in lower courts. There was a need for guidelines and specific scope for the Supreme Court’s power under Article 142. The case was later sent to a Division Bench of the Supreme Court, and amicus curiae were appointed to look after this case.

Issues 

Whether the Supreme Court has proper scope and powers under Article 142(1) of the Constitution?

Judgement 

The first issue of the case dealt with the scope and ambit of the Supreme Court’s power under Article 142(1) of the Constitution. The Apex Court gave a wide scope to the terms ‘complete justice’ and ‘necessary’. The Court was also directed to include the power of equity as a reply to the problems when it’s strictly applying procedural law. Additionally, the Bench, in this case, held that the Apex Court has the power to directly grant a divorce on grounds of ‘irretrievable breakdown of marriage’ under Article 142 of the Constitution.

Furthermore, the Court opined that the power is wide enough to pass an order in modification or alteration of positive law, which is very clear and to the point. The order is made in the interest of justice and to do complete justice to Article 142. The Court referred to Union Carbide Corporation v. Union of India (1991) to distinguish the power of the Supreme Court under Article 142. The Court came to the conclusion that the powers under this Article are very wide and that the court can take action to achieve justice. 

Ashok Hurra v. Rupa Bipin Zaveri (1997)

Facts of the case 

In this case, the wedlock between the appellant and respondent was solemnised on 3rd December, 1970. The wife left the matrimonial home in 1983 due to differences. Later, a joint petition was filed under Section 13B of the Hindu Marriage Act, 1955. The parties demanded a divorce by mutual consent. Two years later, the husband alone moved to pass the decree. Later, the same petition was withdrawn by the wife. The husband argued that the wife had no right to withdraw or revoke her consent for divorce after 18 months. The husband approached the High Court with a special leave petition. 

Issues 

Whether a marriage can be dissolved by obtaining the mutual consent of both parties to the marriage or not?

Judgement 

The appeal was allowed. Subject to the fulfilment of the following conditions, a decree of divorce for dissolution of marriage by mutual consent solemnised between the appellant and the respondent was passed under Section 13B of the Hindu Marriage Act. 

Devendar Singh Narula v. Meenakshi Nangia (2012)

Facts of the case 

In this case, due to superstitions, both spouses had been separated since their wedding.  After three months of marriage, the appellant filed a petition under Section 12 of the Hindu Marriage Act, 1955. The case went to mediation, and the parties mutually agreed to a divorce. While the family court ordered a statutory waiting period, the parties approached the Supreme Court under Article 142 of the Indian Constitution. The Court came to the conclusion that there was a lack of marital ties and the marriage was only for name sake and the Court granted divorce to the parties before the completion of the cooling off period by filing.

Issues 

Whether dissolution of marriage under Section 13B of the Hindu Marriage Act, 1955, can be granted before the statutory waiting period

Judgment 

The appeal was granted, and the Court iterated that the Section itself provides for a cooling period of six months on the first motion being moved. In the event, the parties changed their minds during the said period. The Court concluded that the parties are required to wait for another six months before the second motion can be moved.

No fault divorce : a global perspective

United Kingdom 

Europe showed a diversity in laws amongst its member countries with respect to divorce. In the UK, spouses can file a petition for divorce based on both fault and no fault grounds. The Divorce, Dissolution and Separation Act, 2020, lets spouses file a “no fault” divorce, ending their wedlock, without blaming each other. If the couple has been married for over 12 months, they can proceed with a no fault divorce, even if both parties do not mutually agree to it. This novel approach aimed to minimise conflict and encourage a more structural route to legal separation.   

Italy

In Italy, initially, the concept of getting a divorce was complicated. After 1970, the Italian Government made divorce legal and over time, significant reforms have simplified the legal proceedings. The new approach offered both “no fault” and “fault based” divorces. But in “no fault” divorce, couples can split after the cooling period. However, in the other one, couples need to establish specific grounds like adultery, sodomy, etc. The diversity in the options enabled the spouses to pick the type that fit well with their life circumstances.

Japan

Generally, in Asia, cultural and religious aspects greatly impact the making of divorce laws. Japan offers a distinctive divorce approach, termed as “kyogi rikon”, which is for mutual divorce. Under this concept, spouses should mutually agree on the divorce and register with the local government office regarding the agreement. This process made divorce in the country very simple and effective; hence, the divorce rates in Japan are relatively high, underlining the influence of Japan’s culture and legal factors on divorce practices. 

China

Unlike Japan, China has a strong connection with divorce and its cultural heritage. The country intertwines cultural values and modern legal principles. Divorce laws in China have changed a lot due to societal changes. China in 1950 made the Marriage law and it legalised divorce. The Marriage Law wanted to protect women’s rights and promote gender equality, marking a significant change from traditional values that discouraged traditional divorce. Under the present law, couples can file for divorce. China recently introduced a ‘cooling off’ period and received a lot of criticism. According to the Civil Code implemented in 2021, couples filing divorce must undergo a 30-day period to reconsider their decision before their legal separation is granted. This is to decrease the divorce rate but it has received a lot of criticism about the ongoing friction between culture and modernity in the government’s approach to divorce.

Russia 

The idea of no fault divorce started in the country after the Russian Revolution of 1917 by the Bolsheviks. Before, this religious institution tended to define the family system in the state. The law of the Russian Orthodox Church controlled everything, such as family, marriage and even divorce. From the official registration of birth to death and divorce, it was considered the duty of the parish church. The laws were non-secular and divorce was considered taboo and highly restricted. The decree on divorce came in 1918 and eliminated the concept of religious marriage and the law was replaced by civil marriage which was sanctioned by the state. Spouses can acquire a divorce by filing a mutual consent with the Russian Registry Office or by the unanimous request of one spouse to the court. The divorce under Russian law never penalises the spouse with alimony, child support, etc., as they were all supported by the state anyway. The spouses were free from all legal hurdles after the divorce. After the fall of the Soviet Union, the family law of Russia was separately introduced. 

Sweden

In Sweden, there is no such concept as fault divorce; the courts in Sweden do not mandate a showing of fault requirement for divorce. The spouses can file for divorce together or one party can file alone. If only one party wants to divorce and the other does not, or if the spouses have kids under the age of 16 living with them, the court will order a contemplation period. This period can be anywhere from 6 to 12 months. During this period, the spouses are instructed to stay married and requests must be confirmed after this period. 

Spain
In Spain, no-fault divorce is known as divorcio incausado. This was introduced in 2003 as a part of amendment to Spain’s divorce law of 1981.

Mexico

In Mexico city, a no fault divorce is called ‘divorcio incausado o sin expresion de causa’, meaning, divorce without cause or expression of cause, and is typically known as ‘divorcio expres, i.e., express divorce. The law was initially passed in Mexico city in 2008 and upheld by the Supreme Court after several years. A case existed that challenged the constitutionality of the law and it took around 7 years. Finally, in 2015, the Supreme Court of Mexico held the law to be constitutional. 

Conclusion

No fault divorce in India is a remarkable step towards coping with societal needs. By recognising this breakdown of wedlock as a sufficient ground for the dissolution of marriage, we encourage the needs of society. Before the amendment, the concept of getting divorced was stigmatising. The current development ends the marriage without any hostility between the parties. The current society is fast paced, No fault divorce simplifies the complex legal proceedings and protects the interests of both parties while enhancing gender equality between the parties and helping to reach a solution. The idea of separation is a sign of peace in our current society.

Frequently Asked Questions (FAQs)

What is no fault divorce under Hindu Marriage Act?

No fault divorce means dissolution of marriage, wherein both parties are not required to prove why they need a divorce. It is explained under Section 13B of the Hindu Marriage Act, 1955, that to obtain the same, both parties should file a joint petition for mutual divorce.  

What are the grounds for no fault divorce under the Act?

According to Section 13B of the Act, mutual consent is required. Both parties should jointly agree to the decision to get divorced. And the petition should state that both spouses have been living separately for more than a year and do not want to live together. 

What are the procedures to be followed to obtain a no fault divorce under the Act?

A joint petition should be filed in the family court. They should contain the mutual consent to divorce and state that they have not lived together for more than a year. After a successful petition, the court proceeds with a six month cooling off period, and after that period, the court grants the divorce decree.

Whether a no fault divorce can be contested under Hindu Marriage Act?

In cases where one of the parties withdraws consent during the cooling off period or if spouses are not appearing in court, a no fault divorce can be contested.  Also, if there is any dispute during the proceedings and the spouses are not mutual, the divorce may become contested. In these cases, courts consider normal grounds for divorce under the Act.

Whether counselling is mandatory prior to no fault divorce?

Counselling is a mandatory step in the proceeding. During the cooling off period, the court will be directing the spouses to undergo counselling to check whether they are still willing to get a divorce.

How is the custody of a child determined post No fault divorce?

Child custody is also part of the mutual agreement. Both parties should agree to it mutually. The court will ensure the child’s best interests and their future are protected. 

How is property division handled in a no-fault divorce under mutual divorce?

During the mutual divorce, according to Section 13-B, the spouses are mandated to come to an agreement regarding the division of assets, property, and other financial matters. Both parties are required to disclose their assets and liabilities and a mutually accepted arrangement. 

Can remarriage occur immediately after obtaining a no fault divorce under the Hindu Marriage Act?

After obtaining a mutual divorce, parties are legally free to remarry. There is no waiting period for remarriage after obtaining divorce, but the spouses should finish all the legal formalities of the divorce.

References 

• https://districts.ecourts.gov.in/sites/default/files/2-Divorce%20Theory%20-%20by%20Sri%20Sikinder%20Basha.pdf 
• https://vidhikarya.com/legal-blog/no-fault-divorce 
• https://www.scobserver.in/journal/shilpa-sailesh-judgment-a-step-towards-no-fault-divorce/ 
• https://www.ezylegal.in/blogs/what-is-no-fault-divorce 
• https://www.reeveslavallee.com/index.php/2023/07/05/navigating-international-divorce-a-global-perspective/