In law, need to write a new marriage story

The Supreme Court saying that keeping alive a marriage which is “already decayed and is decomposing day by day” serves neither the couple nor society is an important intervention in what is often one of the most bitter and wearying legal processes. The two-judge bench that was ruling on the case of a couple that has been living separately for 15 years said that asking them to live together after they’ve been estranged for so long would amount to “cruelty to both the parties”. In thus framing the issue, the Court has underlined the need for a more nuanced approach to the complex issue of marital breakdown.

While the laws in their present form offer two paths to legal separation — mutual consent (no-fault) and contested (fault-based) — the Supreme Court has periodically used its extraordinary powers under Article 142 (1) to widen the framework of divorce and bring in the concept of “irretrievable breakdown of marriage” (IBM). In 2006, while ruling on Naveen Kohli vs Neelu Kohli, it urged the government to “seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce”. The concerns animating the Court cannot be dismissed: A protracted legal battle can take a toll on the mental, physical, and emotional well-being of the parties involved. The financial implications, too, are often serious. As the Court has rightly said, to prolong an estranged couple’s agony because their case does not meet the criteria laid out in the law amounts to “perpetuity of marriage on paper”.

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The judgment serves as a reminder to both the government and Parliament that reform is long overdue. In its 2009 report, the Law Commission recommended the inclusion of IBM, and subsequently, there were two attempts at legislative reform via the Marriage Laws (Amendment) Bills of 2010 and 2013, both of which lapsed. At the same time, reform cannot overlook the realities of a deeply patriarchal society where women often enter divorce proceedings from a position of social and economic disadvantage. Protecting their interests, especially on the questions of property rights, custody, maintenance and residential rights, is paramount. Reform is necessary, but it should not become another instrument for perpetuating inequality.