Recently, the Supreme Court of India took the legal position that under the Hindu Marriage Act, Courts were not empowered to grant a divorce on the ground of “irretrievable breakdown”. This judgment provoked a suo motu suggestion from the Law Commission that the Center should incorporate irretrievable breakdown as an additional ground of Divorce under the Hindu Marriage Act. The Law Commission argued that the Law cannot “turn a blind eye to the breakdown of marriage”. But the recommendations of the Law Commission appear to be informed by legal considerations alone and not by extensive social science research.

In India , the strident debate on irretrievable breakdown as a ground for divorce has focused on the two warring adults. Conspicuously absent is the critical issue of whether and how the rights of the child and her relationships to her parents and extended families will be altered and how they should be safeguarded under such a regime.

The “irretrievable breakdown” ground should not be viewed as merely adding yet another clause to section 13 of the Hindu Marriage Act. Rather, it should be viewed as a disruptive change to the structural edifice of Family Law in India . Irretrievable breakdown changes the terms of divorce from a “fault” basis to a “no-fault” basis. That means either of the two adults in a marriage can unilaterally terminate it for any reason they please. It goes without saying that its consequences on society and family-life are far-reaching because it changes the incentives to stay within a marriage.

Many liberal democracies do indeed include “irreconcilable differences” as a ground for no-fault divorce. For example, this is true in most US states (the notable exception is New York State , which still does not grant no-fault divorces). A no-fault divorce regime is also the primary reason why the divorce rate in these countries hovers at around 50%. More than a quarter of US households are one-parent households. One out of three Americans is currently a step-parent, a step-child, or some other member of a step-family. Social research has demonstrated beyond doubt that children who grow up in broken families have numerous handicaps in life compared to those in intact families.

Furthermore, a widely-cited 2000 study published in the American Law and Economics Journal by M.F. Brinig & D.W. Allen entitled, “These boots are made for walking”, concluded that since the introduction of no-fault divorce in America, expectations of custody - rather than traditional grounds like cruelty and desertion – was the primary factor that drove divorce filing. In other words, sole-custody Laws encouraged divorces.

Similarly, the calculus of financial gain also drives divorce filing behavior. As reported in the New York Times, at the peak of the US housing bubble, there were more divorce filings because people believed they could move on and live comfortably on their share of the proceeds from the sale of their matrimonial home.

Clearly, the motivation to stay within a marriage changes dramatically under a no-fault divorce framework.

To mitigate the worst effects of these distortions on children, 35 US states have found it necessary to introduce a strong presumption of gender-neutral shared custody and parenting laws, as well as gender-neutral alimony and child-support laws. There is a now a large body of Case Law on Joint Custody. In a Landmark judgement, KENTUCKY: Chalupa v. Chalupa, Kentucky Court of Appeals, No. 90-CA-001145-MR; (May 1, 1992)., Judge Schroder, wrote for the majority:

“A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the children's upbringing.... The difficult and delicate nature of deciding what is in the best interest of the child leads this Court to interpret the child's best interest as requiring a trial court to consider joint custody first, before the more traumatic sole custody. In finding a preference for joint custody is in the best interest of the child, even in a bitter divorce, the court is encouraging the parents to cooperate with each other and to stay on their best behavior. Joint custody can be modified if a party is acting in bad faith or is uncooperative. The trial court at any time can review joint custody and if a party is being unreasonable, modify the custody to sole custody in favor of the reasonable parent. Surely, with the stakes so high, there would be more cooperation which leads to the child's best interest, the parents' best interest, fewer court appearances and judicial economy. Starting out with sole custody would deprive one parent of the vital input.”

A similar landmark judgment was passed in GEORGIA: Court of Appeals of Georgia, Case No. A93A0698, 7/2/93 IN the INTEREST of A.R.B., a child:

In a unanimous opinion, presiding Judge Dorothy T. Beasley stated: “Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose wellbeing is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce.”

These liberal democracies even go so far as to ensure that Grandparents have visitation rights to ensure that a custodial parent cannot erase them out of their grandchildren’s lives. They are also signatories to the Hague Convention that ensures that a divorcing spouse cannot go “forum shopping” to a favorable jurisdiction.

None of these checks and balances exists in the canon of Indian Family Law. Notably, Indian Family Law does not even pretend to operate under gender-neutral presumptions. The child-support responsibility falls disproportionately on the father, as does alimony on the hu sb and. Similarly, child custody of a minor is rarely granted to the father. Finally, the father is almost always the primary legal guardian of the Child. Even the terminology in the Hindu Marriage Act is not gender-neutral: it refers to the rights and obligations of the “the hu sb and” and “the wife”, rather than “the spouse”.

If one spouse can orchestrate a breakdown and unilaterally terminate a marriage this ground, it necessarily follows that the Family Laws governing shared parenting, child-support, alimony, and grandparent’s visitation rights must also be simultaneously overhauled. These laws must ensure that a divorcing adult cannot take advantage of a “no-fault” law to financially and emotionally exploit other equally-legitimate stakeholders in a child’s life. They must also ensure that one spouse cannot walk away the tangible and intangible assets acquired during the marriage in a winner-take-all contest. The glacial, idiosyncratic, wheels of the Indian Judiciary all but guarantee that possession is 90% of the Law. As regards the executive branch’s ability to enforce visitation and child-support, the less said about it, the better.

The social impact in India of the irretrievable-breakdown clause should be rigorously studied and watertight safeguards for children must be put in place before it is introduced. At a time when both men and women in India are increasingly financially independent, it is imperative that the terms of the “irretrievable breakdown” debate in India be expanded to restore a fair balance between the Child’s rights and the Adult’s rights. The children of India are mute spectators in this debate – but without the right checks-and-balances, it is they who will disproportionately bear the brunt of no-fault divorce laws in this country.