Social bearing of laws and their implementation with reference to irretrievable breakdown of marriage: A comparative study of laws in India and Asian countries

Definition of divorce

In divorce, parties start to dislike each other and change their ways. It is formally defined in the Encyclopedia Britannica; divorce is the turning away of partners from each other. Divorce is a complete turn from the couple’s way of life (1910).

Divorce signifies the complete breakdown of the marital bond, and divorced persons return to their original status of being free to marry again. Divorce dissolves the marriage, and the parties return to their unmarried status and are free to marry again. Divorce is the legal dissolution of a socially and legally recognised matrimonial relationship that alters the obligations and privileges of the two persons involved, where all rights and mutual obligations of the marriage cease. In other words, after the decree of divorce, the marriage ends, and the parties cease to be spouses and are at liberty to go their way.

Divorce is merely a process by which legal status is given to a relationship torn apart and can represent the end of two people’s relationship with each other. It is a testament that their relationship failed (Becker & Hill, 1955). Despite the universality of divorce, society tends to give negative values to divorce. It may appear as a simple phenomenon in legal parlance, but its implications in practical life are large. Divorce is also a significant life change with far-reaching social, pathological, legal, personal, economic, and parenting consequences. The reason for low divorce rates during economic recessions is the cost of obtaining a divorce in order to provide financial support for the children and maintain a separate household (Glick & Lin, 1986). Social situations such as social upheaval and war also tend to witness a dramatic increase in the divorce rate. Acocrding to Mckenry and Price (1988), divorce rates may have increased due to the possibility of extramarital affairs developing during wars.

People who marry young have a higher probability of divorce (Thornton & Freedman, 1983; Rangarao & Sekhar, 2002). Divorce is high during the early years of marriage and declines rapidly and steadily with marital duration of the considerable time period of five or more years (Martin & Bumpass, 1989; Thornton & Rodgers, 1987). Statistically, it was discovered that individuals getting married before the age of 22 were more likely to be dissatisfied than those married between the ages of 22 and 29 (Hart & Shields, 1926). The biggest risk manifested in this research was when both husband and wife were under the age of 20, they were two to three times more likely to divorce than their counterparts who married in their twenties (Guttmacher, 1981; Norton & Moorman, 1987). The authors also believe that when a marriage does not last for a few days or months, the marriage may be dissolved as an irretrievable breakdown of the marriage.

When spouses choose not to stay with each other after a short period, there is less chance of developing a sense of commitment and obligation. The separation period before the marriage’s dissolution may vary from several weeks to several years. This stage involves a series of emotional deaths, and the spouses are no longer interested in investing in their marriage (Mckenry & Price, 1988). Separation refers to couples living apart with the intention of getting divorced or who have been separated permanently or temporarily due to marital discord (Mckenry & Price, 1988). Divorce cannot be understood simply as a discrete legal event that occurs when the divorce papers are signed but as a process that occurs over time (Ganong & Coleman, 1994). Sexual incompatibility is a factor in marital unhappiness. For example, Baber (1953) insisted that sexual incompatibility is the root cause of marital fantasy. Satisfaction is a very complex phenomenon; it has physical, psychological and social contexts (Baber, 1953). Sexual morality issues may arise due to the long-awaited pendency of divorce cases, the parties to the marriage may lead an immoral life because of their desperate relationship and find other ways to satisfy their sexual covet. This is not a good sign of a healthy society (Wadlington, 1977).

The important factors in divorce are personal unhappiness and a desire to avoid a worst-case scenario. Not surprisingly, removing financial barriers for women and providing alternative sources of emotional and sexual satisfaction are important incentives for both men and women. Men are more likely to cite their children as a significant barrier to divorce. The presence of children in legal disputes, especially in divorces, adds complexity, necessitating careful proceedings to prioritize their needs and welfare. Issues such as custody, financial support, and emotional impacts must be addressed, which may prolong the case. Conversely, cases without children involved can theoretically be resolved faster. The disputing parties can negotiate directly, reducing complexity and potentially hastening resolution. However, it is crucial that speedy resolution does not compromise the justice quality, ensuring the rights of all parties are sufficiently protected and outcomes are equitable, regardless of the presence or absence of children. (Wallerstein & Kelly, 1979).

Personal religious beliefs are the second most cited barrier for both men and women (Moore & Waite, 1981). The divorce rates can reflect the inadequacies and deficiencies in the functional aspects of the institution of marriage (Moore & Waite, 1981).

When problems persist, negative thoughts and suicidal tendencies can increase, and marriage can lack substance. Early resolution of divorce cases can lead to positive thinking for the parties involved, as time in prolonged court proceedings can be aimless and detrimental to the youth (Kposowa, 2003). Despite efforts to preserve the sanctity of marriage, divorce cases are rapidly increasing, indicating a need to recognize irretrievable breakdown as a legitimate ground for divorce (Kposowa, 2003).

Divorce is an index of social change and has two sides. First as a negative and later seen as a positive event in life. During the divorce process, a person can be in pain, see nothing beyond the court date, and consider the court dates as hindrances. However, there have been reports of improved health status after the divorce process (Brown et al., 1980). For some divorced persons, the divorce is painless or result in only slight emotional disturbance. For these persons, divorce resolves a stressful situation and lead to a new sense of competence and development of better relationship and freedom to develop one’s interest (Brown et al., 1980). In contrast, divorce is painful for innocent parties who were not expecting the end of a relationship. Separation distress appears more significant when unexpected and the individual is opposed to the separation.

Communication difficulties, general incompatibility, not spending enough time at home, infidelity and disagreement over money matters can be reasons for divorce. Divorce is a response to an unsuccessful marriage in which the spouses reject each other, and not the rejection of the idea of marriage or the family. Physical separation is the last stage of divorce, and stages in the divorce process invariably include physical separation as one of the stages that prelude divorce. Separation may occur at any time in the process of dissolution of marriage. Research found that women are more likely to first suggest divorce or separation (Spanier & Thompson, 1984; Goode, 1963). Women may take a longer period to decide on separation. In the research by Spainer and Thompson, women spent an average of 22 months, whereas men spent an average of 12 months making the decision on separation; the average length of time was even longer when the divorce was mutually desired (1984). The strongest predictors of divorce are seen in the first five years of marriage. Higher divorce rates are found in nations where the average age of marriage is lower (Heaton et al., 2001; Morgan & Rindfuss, 1985).

Divorce is allowed globally except in the Philippines and Vatican City. However, Muslims have the right to seek divorce in the Philippines. In 20 countries, namely, Argentina, Australia, Azerbaijan, Belgium, Botswana, Cuba, Germany, Luxembourg, Malta, Mongolia, Netherlands, New Zealand, Portugal, Slovakia, Spain, Sweden, Switzerland, Russia, United Kingdom (except Northern Ireland) and Vatican City there is no need to prove the fault of the other spouse. In other words, there is no existence of fault theory as a ground for divorce.

Study of Asian countries

Implementing laws related to the irretrievable breakdown of marriage is a topic of interest and importance in many Asian countries, including India. This area of study has been researched in order to compare and contrast the laws and policies of different countries regarding divorce and to identify the reasons behind any variations in implementation.

One of the main reasons for the study is to understand how the concept of irretrievable breakdown of marriage is defined and applied in different legal systems and to analyse the impact of these laws on the society and individuals involved in the process. This comparative analysis can help identify the strengths and weaknesses of the different approaches taken by various countries and explore the possible ways to improve the implementation of such laws.

Moreover, this study can also provide insights into the social and cultural factors that influence the implementation of divorce laws in different countries. For example, the prevalence of arranged marriages in some Asian countries may affect how divorce is viewed and handled in those societies. Similarly, differences in the social and economic status of women in different countries may have an impact on how divorce laws are implemented.

In summary, the study of the irretrievable breakdown of marriage and its implementation in different Asian countries is important for understanding the legal, social, and cultural factors that influence the process of divorce. It can provide insights into the strengths and weaknesses of different approaches and help identify areas for improvement in implementing divorce laws. The study outcomes are listed below.

Afghanistan

In Afghanistan, fault-based divorce remains the traditional method for dissolving a marriage, where one spouse can seek a divorce based on the other spouse’s serious fault or wrongdoing, such as adultery, cruelty, desertion, or imprisonment, which makes it impossible for the couple to continue their marriage (Roy, 1990). Unlike in many other countries, Afghanistan’s family law does not currently have provisions for no-fault divorce, meaning that divorce can only be granted based on fault-based grounds, and it necessitates the involvement of a court and a judge (Kamali, 1975).

Divorce was first legalised in Afghanistan during the reign of King Amanullah Khan in 1921, who introduced a new civil code that permitted divorce and other significant social and political reforms (Roy, 1990). The divorce laws in Afghanistan, as outlined by the Civil Code and Sharia law, differ for men and women. Men possess the right to initiate divorce for any reason, while women can only seek divorce under specific grounds, such as abandonment, cruelty, impotence, or failure to provide financial support (Kamali, 1975).

Under Sharia law, a husband can divorce his wife by saying “I divorce you” three times, whereas women need the permission of their husbands or a court of law to initiate divorce proceedings (Kamali, 1975). Nevertheless, a new law introduced in 2009 offers greater protection for women, requiring men to provide financial support to their wives following a divorce and allowing women to seek divorce under certain conditions, such as abuse or abandonment (Rahmani, 2019).

Pethrus et al. (2019) conducted a matched cohort study on marriage and divorce among Swedish soldiers after military deployment to Afghanistan. The study highlights the complexities and unique circumstances surrounding divorce in the context of military deployment in Afghanistan.

Armenia

Divorce was first legalised in Armenia in 1918, but it was allowed only under limited circumstances, such as adultery, desertion, or abuse (Semerdjian, 2016). During Soviet rule, divorce laws were liberalised, giving both men and women the right to initiate divorce and permitting no-fault divorce in certain cases (Platz, 1995).

Armenian law allows a spouse to file for divorce without the other spouse’s unilateral consent, provided they meet specific requirements like being separated for a certain period or having irreconcilable differences (Semerdjian, 2016). The no-fault theory of divorce, introduced in Armenia in 2004, simplified the process by removing the need for individuals to prove fault or wrongdoing by their spouse (Platz, 1995).

As per Article 19 of the Armenian Family Code, a divorce may be granted if one or both spouses file a joint or individual petition with a court (Semerdjian, 2016). The court can grant the divorce if it determines that the marriage has broken down and reconciliation is impossible. Additionally, the court may grant a divorce if one spouse is recognized as missing or has been absent for at least a year (Semerdjian, 2016).

Azerbaijan

Divorce was first legalized in Azerbaijan after it gained independence from the Soviet Union in 1991 (Emami-Yeganeh, 1984). The first Family Code of Azerbaijan was adopted in 1999 to establish the country’s legal framework for marriage and divorce (Bayramov, 2021).

In Azerbaijan, divorce can be granted in cases of mutual agreement between spouses or on the grounds of irretrievable marriage breakdown, usually established through a court process. According to the Family Code of Azerbaijan, both parties must agree to a divorce for it to be granted. If one party does not agree to the divorce, the case can be taken to court, where the judge will consider the circumstances of the marriage and make a decision on whether to grant the divorce (Bayramov, 2021).

Couples can obtain a divorce by mutual consent after a one-month waiting period without having to prove any fault. Suppose one party wishes to obtain a divorce unilaterally, they can do so after a three-month cooling-off period based on the no-fault theory. Under Azerbaijan’s Family Code, either spouse may file for divorce without stating any grounds for divorce through unilateral divorce provisions. The spouse who files for divorce must notify the other spouse and provide a copy of the divorce petition. If the other spouse does not object or the court rejects the objection, the divorce will be granted based on the petitioner’s request (Bayramov, 2021).

However, in cases involving children, the court may require a joint custody agreement to be reached before granting the divorce (Bayramov, 2021).

Bahrain

In Bahrain, divorce laws have undergone various changes (Al Gharaibeh, 2011; Jones, 2007). The history of Bahrain’s divorce laws can be traced back to the country’s legal system, which is based on Islamic law. Traditionally, Islamic law required fault-based grounds for divorce, such as adultery or cruelty, and the husband had the unilateral right to initiate the divorce process (Jones, 2007).

However, in recent years, Bahrain has modernised its divorce laws to provide more options for couples seeking to end their marriages (Al Gharaibeh, 2011). In 2009, the country passed a new Personal Status Law that introduced the concept of “irretrievable breakdown of marriage” as a new ground for divorce, which does not require fault to be established by either party (Jones, 2007).

In Bahrain, divorce by mutual consent is recognised under the Personal Status Law, which allows both spouses to request a divorce without specifying any grounds for divorce. To obtain a divorce by mutual consent, both spouses must request the divorce jointly in the presence of the court clerk, agree on the divorce terms, and ensure that the court verifies that all the conditions for the divorce have been met (Al Gharaibeh, 2011).

In Bahrain, the right to initiate divorce unilaterally is generally only available to men under Sharia law (Jones, 2007). However, women may obtain a divorce through court proceedings or through khula. Additionally, Bahraini law now allows women to initiate divorce proceedings, and the courts may also order reconciliation or counselling before granting a divorce (Al Gharaibeh, 2011). Khula is a term used in Islamic law to refer to a form of divorce initiated by the wife. It allows a Muslim woman to seek a divorce from her husband through a legal process. In khula, the wife initiates the divorce by offering financial compensation or relinquishing her financial rights to the husband in exchange for the dissolution of the marriage. This process is based on mutual consent and requires the involvement of a religious authority or a court, depending on the jurisdiction. The specific details and procedures for khula may vary across different countries and schools of Islamic law.

Bangladesh

In Bangladesh, the divorce laws have undergone several changes since its independence in 1971 (Alam, Saha, & Van Ginneken, 2000; Parvez, 2011). Both men and women have the right to divorce unilaterally under Muslim law, while divorce can be obtained through court proceedings or by seeking khula. In 2011, Bangladesh introduced the “irretrievable breakdown of marriage” concept as a no-fault ground for divorce under its Muslim Family Laws Ordinance. The ordinance also provides for the dissolution of marriage through mutual consent and allows women to initiate divorce proceedings under certain conditions. Additionally, the ordinance allows for mediation and counselling before granting a divorce (Parvez, 2011).

However, fault-based grounds for divorce, such as adultery or cruelty, still exist under Bangladesh’s family law (Alam, Saha, & Van Ginneken, 2000). The country’s legal system also recognizes the importance of reconciliation and encourages efforts to save the marriage before granting a divorce (Parvez, 2011).

Overall, the divorce laws in Bangladesh have evolved to provide more rights and protection for women while still upholding traditional Islamic legal principles (Alam, Saha, & Van Ginneken, 2000; Parvez, 2011).

Bhutan

In Bhutan, divorce laws have changed significantly, reflecting the country’s unique cultural and legal traditions (Kaul, 2013; Lhamo, 2019). Before the Bhutanese Marriage Act of 1980, divorce in Bhutan was governed by traditional customary laws and practices, which varied widely across different regions and communities. The Bhutanese Marriage Act of 1980 introduced a fault-based system of divorce, which allowed parties to seek a divorce on the grounds of adultery, cruelty, or desertion, but also provided for the possibility of no-fault divorce. In 2005, the Bhutanese Parliament passed the Marriage (Amendment) Act, which introduced mutual consent divorce, requiring parties to undergo counselling before the divorce is granted. In 2011, the Marriage (Amendment) Act 2011 recognized the irretrievable breakdown of marriage as grounds for divorce, which also requires parties to undergo counselling before the divorce is granted (Kaul, 2013). Bhutan’s history of divorce laws reflects the country’s efforts to balance traditional values and cultural practices with modern legal principles and concepts (Kaul, 2013; Lhamo, 2019).

Brunei

In Brunei, a predominantly Islamic country, family law matters, including divorce, are governed by Islamic law, or sharia (Minarrahmah, 2020; Ibrahim, 2015). Divorce in Brunei is typically fault-based, with grounds such as adultery, cruelty, desertion, or other specified faults (Ibrahim, 2015).

In addition to fault-based divorce, Brunei recognises the concept of khula, a form of no-fault divorce initiated by the wife (Ibrahim, 2015). Unilateral divorce is not recognised in Brunei, and a party seeking a divorce must typically obtain the consent of their spouse or go through a legal process to establish fault (Minarrahmah, 2020). The concept of irretrievable breakdown of marriage is not recognised in Brunei’s legal system, but parties may seek a divorce on the grounds that the marriage has become “untenable” (Ibrahim, 2015).

Cambodia

In Cambodia, current divorce laws are based on the Civil Code introduced in 2007, allowing for both fault-based and no-fault divorce (Brickell, 2014). In a fault-based divorce, one spouse must prove the other committed a severe offence, such as adultery, domestic violence, or abandonment, leading to the breakdown of the marriage (Brickell & Platt, 2015). In a no-fault divorce, both parties can agree to dissolve the marriage without assigning blame or fault. After one year of separation, either spouse can seek a divorce without proving fault based on the no-fault theory (Brickell, 2014). However, the law also requires couples to attempt mediation before seeking a divorce, providing for the division of property and child custody arrangements (Brickell & Platt, 2015). Cambodia does not recognise the “irretrievable breakdown of marriage” as grounds for divorce.

It is important to note that divorce is still a sensitive issue in Cambodia, particularly in rural areas where traditional values and beliefs about marriage and family remain strong (Brickell, 2014). Many couples prefer to resolve their marital issues through informal means, such as mediation or counselling, rather than pursuing a formal divorce (Brickell & Platt, 2015).

China

In China, the current divorce laws are governed by the Marriage Law of the People’s Republic of China, enacted in 1980 and amended in 2001 (Chen, Rizzi, & Yip, 2021). The law provides for both fault-based and no-fault divorce (Yi & Deqing, 2000).

Under the fault-based system, a divorce may be granted based on grounds such as adultery, domestic violence, desertion, separation due to irreconcilable differences, criminal conviction, and mental illness (Yi & Deqing, 2000). Additionally, parties may seek a divorce on the basis of mutual consent, which requires a one-month cooling-off period (Chen et al., 2021).

China allows for unilateral divorce under its Marriage Law, where either spouse can file for divorce with a local marriage registration office, but a 30-day cooling-off period is required (Chen et al., 2021). The Marriage Law recognises “irretrievable breakdown of marriage” as a ground for divorce, allowing both parties to file a joint application without having to prove fault or other grounds (Yi & Deqing, 2000).

It is important to note that the law applies equally to both men and women, with no gender bias in divorce proceedings (Chen et al., 2021). Additionally, the law requires that marital property be divided equally between the parties in the event of divorce (Yi & Deqing, 2000).

Cyprus

In Cyprus, the history of divorce laws reflects the country’s cultural and legal traditions and its changing social and political landscape (Jennings, 1993; Sampson, 2005). Until 1990, Cyprus had a fault-based system of divorce, influenced by the country’s Greek Orthodox Christian heritage (Sampson, 2005). The Cypriot Parliament passed the Family Law (Amendment) Law in 1990, introducing no-fault divorce, which required at least three years of separation (Sampson, 2005).

The Family Law (Amendment) Law 2003 introduced the concept of unilateral divorce, allowing parties to seek a divorce without their spouse’s consent after at least five years of separation but also allowed for contested divorce where fault had to be established (Sampson, 2005). In 2015, the Family Law (Amendment) Law 2015 recognised the irretrievable breakdown of marriage as grounds for divorce, requiring parties to undergo counselling before the divorce was granted (Sampson, 2005).

Overall, Cyprus’s divorce laws reflect the country’s ongoing efforts to balance traditional cultural and religious values with modern legal principles and concepts (Jennings, 1993; Sampson, 2005).

Egypt

In Egypt, the divorce laws have been shaped by a complex interplay of legal, religious, and cultural factors (Mashhour, 2005; Mendoza, Tolba, & Saleh, 2019). The country’s current legal system primarily relies on fault-based divorce, where grounds for divorce include adultery, cruelty, desertion, or other specified faults. These grounds must be proven in court for the divorce to be granted, often leading to lengthy and adversarial proceedings.

Egypt also recognizes the concept of khula, a form of no-fault divorce initiated by the wife. Under khula, a wife can obtain a divorce by returning her husband’s dowry or providing financial compensation in exchange for ending the marriage. This practice allows women to dissolve their marriage without having to prove any misconduct by their spouse.

In addition to khula, Egypt acknowledges unilateral divorce, which enables a husband to divorce his wife without her consent under specific conditions. This practice is rooted in traditional Islamic law and can lead to unequal power dynamics in the divorce process.

Although the concept of the irretrievable breakdown of marriage is not explicitly recognized in Egypt, some courts have interpreted khula as a form of irretrievable breakdown in certain cases (Mashhour, 2005). This interpretation allows for the dissolution of a marriage without establishing fault, thus providing a more accessible option for couples seeking to end their relationship.

Overall, Egypt’s divorce laws reflect the country’s complex legal, religious, and cultural traditions (Mashhour, 2005; Mendoza, Tolba, & Saleh, 2019). While the legal system acknowledges both fault-based and no-fault divorce options, the process remains rooted in these traditions, which can create challenges for those seeking to navigate the system. As society continues to evolve, there may be opportunities for further reform and modernization of Egypt’s divorce laws to ensure a more equitable and accessible process for all individuals involved.

Georgia

In Georgia, the country’s divorce laws have undergone significant transformations over time, influenced by various political, social, and cultural factors. Historically, Georgia’s divorce system was influenced by Marxist principles, which promoted a more accessible and simplified process. Over time, the legal system shifted towards a traditional, fault-based system, where one spouse had to prove the misconduct of the other for the divorce to be granted (Censer, 1981; Welch III & Price-Bonham, 1983).

In 2008, Georgia introduced a new family code that recognizes both fault-based and no-fault grounds for divorce. This reform allowed couples to dissolve their marriages without assigning blame, making the process more accessible and less adversarial. The new family code also permits unilateral divorce, enabling one spouse to initiate the divorce process without the consent of the other (Welch III & Price-Bonham, 1983).

However, there are certain requirements and restrictions in place for unilateral divorce, such as a mandatory six-month cooling-off period and mandatory counselling sessions. These measures are designed to provide couples with the opportunity to reconsider their decision, resolve disputes, and potentially reconcile before finalizing the divorce.

In summary, Georgia’s divorce laws have evolved significantly over the years, transitioning from a Marxist-influenced system to a traditional, fault-based system, and ultimately to a system that recognizes both fault-based and no-fault grounds for divorce. The introduction of the new family code in 2008 has provided more options for couples seeking to end their marriages and has implemented safeguards to encourage reconciliation and amicable resolutions.

India

In India, divorce laws have evolved over time and are primarily governed by various personal laws based on religion (Dommaraju, 2016). Further, Dommaraju reported that fault-based grounds such as adultery, cruelty, or desertion were the main reasons for divorce before 1976. These fault-based grounds required one spouse to prove the misconduct of the other in order to obtain a divorce, often leading to lengthy and adversarial proceedings.

The Hindu Marriage Act of 1955 marked a significant shift in Indian divorce law by introducing the concept of irretrievable breakdown of marriage as grounds for divorce. This reform allowed couples to file for divorce by mutual consent after living separately for one year, without needing to assign blame to either party (Amato, 1994). The introduction of no-fault divorce made the process more accessible and less contentious for couples seeking to end their marriages.

In addition to the Hindu Marriage Act, other personal laws, such as the Muslim Personal Law and the Christian Marriage Act, also govern divorce proceedings in India. These laws allow for divorce on specific grounds, but the procedures and requirements may differ based on the couple’s religion (Dommaraju, 2016). This complex legal landscape can create challenges for couples navigating the divorce process, particularly when their religious beliefs or practices conflict with the available legal options.

Social and cultural attitudes continue to shape divorce laws and practices in India, often making the process complex and challenging, particularly for women (Amato, 1994). Traditional gender roles and societal expectations can create additional barriers to divorce, particularly for women seeking to end their marriages. In some cases, women may face social stigma, financial insecurity, or limited access to legal resources, which can make it difficult for them to obtain a divorce or protect their rights during the process.

Despite the introduction of no-fault divorce and the recognition of irretrievable breakdown of marriage as grounds for divorce, the Indian legal system still grapples with challenges related to gender equality, social norms, and religious diversity. These challenges can create disparities in the divorce process and outcomes for different segments of the population, making it difficult for all individuals to access the same level of justice and support.

In recent years, there have been efforts to reform Indian divorce laws to address some of these challenges and promote greater equality and fairness in the process. For example, the Marriage Laws (Amendment) Bill seeks to introduce the concept of irretrievable breakdown of marriage as a universal ground for divorce, regardless of religion, and provide for equitable division of marital assets (Dommaraju, 2016).

In conclusion, India’s divorce laws have evolved over time, moving from a primarily fault-based system to one that recognizes both fault-based and no-fault grounds for divorce. However, the complex interplay of personal laws, social norms, and cultural attitudes continues to shape the divorce process in India, often making it challenging and complex for those seeking to end their marriages. Efforts to reform and modernize the legal system are ongoing, with the goal of creating a more equitable and accessible process for all citizens, regardless of religion or gender.

Indian Supreme Court in a recent judgment (2023) of Shri Rakesh Raman v. Smt. Kavita has ruled that the irretrievable breakdown of a marriage can be considered as cruelty under Section 13(1)(ia) of the Hindu Marriage Act, allowing for the dissolution of the marriage. The decision was made in the case of a husband living separately from his wife for 25 years. In 2009, the Family Court granted the husband’s petition for divorce based on cruelty, but the High Court of Delhi reversed the decision in 2011. The Supreme Court’s recent ruling acknowledges that a marriage that has broken down irretrievably results in cruelty for both parties and can thus be a valid reason for dissolution. The court also directed the husband to pay the wife INR 3,000,000 as permanent alimony. The author also suggests that if there is a deadlock, the marriage may be declared as dead.

The 59^th (1974), 71^st (1978) and 217^th (2009) Law Commission of India reports, quoting Indian and foreign Judgements have recommended the enactment of laws on irretrievable breakdown of marriage, but the Indian Parliament has yet to pass such legislation. This has created a situation where parties unable to obtain a divorce due to fault-based laws may be forced to remain in an unhappy marriage, leading to societal and personal implications.

The demand for an irretrievable breakdown as a new law and ground of divorce is driven by the changing social landscape, where traditional societal norms and values have given way to more modern attitudes towards marriage and relationships. The law must reflect these changes to remain relevant and practical, as the authors have concluded in the impugn research.

Other countries have addressed the irretrievable breakdown of marriage through the enactment of no-fault divorce laws. These laws provide a more compassionate and equitable approach to divorce, focusing on the needs and rights of both parties.

The failure to enact laws on IBM in India highlights a disconnect between the law and society. It is essential to consider the social bearing of laws and their implementation, as it directly affects the lives of citizens.

When divorce is allowed on the no-fault theory, it may be less likely for questions of maintenance to arise. In the modern scenario in India, both men and women are educated, and woman are not behind in any area; they are not deprived of education. The right to education in Article 21A, Constitution of India, has been inserted to ensure proper education dissemination, irrespective of sex. In the present time, a woman is less dependent on men, and are more likely to feel shy about taking help from her husband.

Simply put, women may be more independent and less likely to perform her household job as it was considered decades back her essential job. They may be more likely to prefer servants to perform these household jobs and prefer servants for their childcare. This prevailing practice in society may put a financial burden on a person. It is the authors’ opinion that when a spouse has sufficient earnings, they must not be allowed to get any expenses from the other spouse, and the trial courts must strictly follow the law relating to the same as verbatim laid down in Section 24 in The Hindu Marriage Act, 1955. According to this law, if the wife has an independent income, then the husband does not have to pay the expenses to her. From the authors’ experiences, these expenses are often given to the wife by the husband, even if she has an independent income. This is a clear violation of the statute on divorce. The court may sometimes order a large sum of money to be paid to the husband. Nevertheless, the husband may be considered a criminal while the wife could refuse continuing the marriage by accompanying the husband for a month after their marriage and leaving soon after. The wrongdoer is liable to be punished by the court, and the innocent should be free because the law is enacted for this purpose.

Indonesia

In Indonesia, divorce laws have evolved from being primarily governed by Islamic law, which allowed divorce in cases of fault, to a more secular system introduced by the 1974 Marriage Law, which applies to both Muslims and non-Muslims (Heaton, Cammack, & Young, 2001). The Marriage Law recognizes several grounds for divorce, including adultery, desertion, cruelty, and a no-fault ground based on the irretrievable breakdown of the marriage (Heaton & Cammack, 2011). Despite these changes, access to divorce remains challenging for many women in Indonesia, particularly Muslim women who must often obtain their husband’s consent or go through a lengthy court process to obtain a divorce (Heaton et al., 2001).

Iran

In Iran, divorce laws have undergone significant changes, particularly since the Islamic Revolution of 1979, which led to the implementation of a new family law based on Islamic principles (Aghajanian & Thompson, 2013). This law allows for both fault-based and no-fault divorce, as well as unilateral divorce in cases of irretrievable breakdown of the marriage (Doherty, Kalantar, & Tarsafi, 2021). Fault-based divorce requires the spouse seeking divorce to prove fault on the other spouse’s part, with grounds including adultery, cruelty, drug addiction, and mental illness (Aghajanian & Thompson, 2013). No-fault divorce is possible through a process called khula, in which the wife can seek divorce without having to prove fault on the part of her husband, and unilateral divorce is possible through a process called talaq-e-tafwid (Doherty et al., 2021).

Iraq

In Iraq, divorce laws have undergone significant changes, and the current legal system recognizes both fault-based and no-fault divorces (Odah, Bager, & Mohammed, 2018). Fault-based divorce requires the spouse seeking divorce to prove fault on the part of the other spouse, with grounds including adultery, cruelty, and abandonment (Anderson, 1960). No-fault divorce is possible in cases of irretrievable breakdown of the marriage, allowing either spouse to initiate divorce proceedings without having to prove fault on the other spouse’s part (Odah et al., 2018). Unilateral divorce is allowed in Iraq, but only under certain conditions, such as when a husband’s wife has committed a serious offense or is unable to perform marital duties due to a physical or mental disability (Anderson, 1960). Implementation of these laws may vary based on the interpretation of religious and cultural practices in different regions of the country (Odah et al., 2018).

Israel

In Israel, divorce laws have evolved since the state’s establishment in 1948, with the current legal system allowing for both fault-based and no-fault divorces, as well as unilateral divorce under certain conditions (Shiloh, 1970; Hacker, 2008). Fault-based divorce requires the spouse seeking divorce to prove fault on the other spouse’s part, with grounds including adultery, cruelty, and severe violence (Shiloh, 1970). No-fault divorce is possible through a process called “divorce by agreement,” in which couples can mutually agree to divorce without having to prove fault on the part of either spouse (Hacker, 2008). Unilateral divorce is possible under certain conditions, such as when a husband gives his wife a formal notice of divorce and pays her a sum of money known as a ketubah (Shiloh, 1970). In cases of irretrievable breakdown of marriage, either spouse can initiate divorce proceedings without having to prove fault, but the process may involve mediation and counseling sessions aimed at reconciliation before granting the divorce (Hacker, 2008).

Japan

In Japan, divorce laws have evolved over time, with the current legal system allowing for both fault-based and no-fault divorces, as well as unilateral divorce under certain conditions (Fuess, 2004; Ono, 2006). Fault-based divorce is possible but requires the spouse seeking divorce to prove fault on the other spouse’s part, with grounds including adultery, cruelty, and abandonment (Fuess, 2004). No-fault divorce is possible through “divorce by mutual consent,” which allows couples to divorce without proving fault as long as certain conditions are met (Ono, 2006). Unilateral divorce is allowed under certain circumstances, such as when a spouse has committed a serious offence or has a severe marital relationship breakdown (Fuess, 2004).

The concept of “irretrievable breakdown of marriage” was introduced in 1948 and allowed for divorce without requiring proof of fault as long as the marriage has broken down and there is no possibility of reconciliation (Fuess, 2004). However, the legal system in Japan still heavily relies on fault-based divorce, and there have been ongoing debates and efforts to reform the system to provide more options for no-fault and mutual consent divorce (Ono, 2006).

Jordan

In Jordan, divorce laws have undergone changes over the years, with the legal system based on Islamic law that traditionally required fault-based grounds for divorce and gave the husband the unilateral right to initiate the divorce process (Kumaraswamy, 2001; Khataybeh, 2022). In 2001, Jordan introduced a new family law that expanded the grounds for divorce to include “irretrievable breakdown of marriage” as a no-fault ground for divorce, and allowed women to initiate divorce proceedings under certain conditions, such as if the husband had been absent for a specified period of time or if he had mistreated her. However, fault-based grounds for divorce, such as adultery or cruelty, still exist under Jordan’s family law. The law also requires a waiting period of up to three months before a divorce is granted, during which the couple may attempt to reconcile (Khataybeh, 2022).

Kazakhstan

In Kazakhstan, a former Soviet republic, significant changes in divorce laws have occurred since gaining independence in 1991 (Dall’Agnola & Thibault, 2021; Zhankubayev et al., 2021). Under the Soviet system, divorce was relatively easy to obtain, but after the collapse of the Soviet Union, Kazakhstan underwent a legal reform process to establish a more liberal, market-oriented legal system (Zhankubayev et al., 2021). Kazakhstan has since adopted a no-fault divorce system, allowing couples to divorce based on the irretrievable marriage breakdown without establishing fault, and divorce can be initiated unilaterally by either spouse. Despite the liberalization of divorce laws, there are still significant social and cultural barriers to divorce in Kazakhstan, particularly for women, as divorce is stigmatized in Kazakh society (Dall’Agnola & Thibault, 2021).

North Korea

In North Korea, divorce is believed to be allowed, but the process and grounds for divorce are not well-defined. Divorce in North Korea is considered a rare occurrence and carries a significant social stigma, with societal pressure to maintain traditional gender roles and family structures. It is unclear whether North Korea recognizes fault-based or no-fault divorce, or whether there are provisions for unilateral divorce or the concept of irretrievable breakdown of marriage. However, given the highly controlled nature of the North Korean legal system, it is likely that divorce is subject to strict regulation and limited in scope (Kim, 1973).

Republic of Korea

In the Republic of Korea, the no-fault divorce system allows couples to obtain a divorce without establishing fault, and either spouse can initiate the process unilaterally (Lee, Seol, & Cho, 2006). The law includes provisions to protect vulnerable spouses, such as a mandatory conciliation process and the possibility of requesting spousal support. The Republic of Korea’s Family Law recognizes “irretrievable breakdown of marriage,” which allows for divorce even if fault cannot be proven. However, there are still social and cultural barriers to divorce in the Republic of Korea, particularly for women, and ongoing debates around the need for further reforms to address these issues (Lee et al., 2006).

Kuwait

In Kuwait, divorce laws are predominantly fault-based, requiring a party seeking a divorce to establish that their spouse committed a wrongful act justifying the dissolution of the marriage. No-fault divorce is recognized through the concept of khula, allowing women to seek a divorce without proving fault, but requiring them to offer to return their dowry or other property received from the husband. Unilateral divorce is recognized in Kuwait but with certain restrictions and requirements. Although the concept of irretrievable breakdown of marriage is not explicitly recognized in Kuwaiti law, some courts have interpreted khula as a form of irretrievable breakdown in certain circumstances (Al-Kazi, 2008; Tetreault & Al-Mughni, 1995).

Kyrgyzstan

In Kyrgyzstan, the history of divorce laws has been influenced by traditional Islamic and Soviet-era legal systems, with the country moving from a no-fault system during the Soviet era to a more flexible approach that recognizes both fault-based and no-fault grounds for divorce after gaining independence. The Family Code enacted in 1994 allowed for fault-based and no-fault divorce, with a requirement of a three-year separation for no-fault divorce. In 2003, unilateral divorce was introduced, requiring a two-year separation, but still necessitating fault in contested divorces. In 2019, the law on “irretrievable breakdown of marriage” was passed, allowing for divorce without establishing fault, but requiring counseling before the divorce is granted (Childress, 2018; Namazie & Sanfey, 2001).

Laos

In Laos, the history of divorce laws has been influenced by the country’s cultural and legal traditions and its socialist political system. The legal framework governing divorce in Laos is based on the 2006 Law on Family, which recognizes both fault-based and no-fault grounds for divorce. Under the current legal system, no-fault divorce can be granted after a one-year separation, enabling couples to end their marriages without assigning blame to either party. This approach aims to make the divorce process more accessible and less adversarial for those seeking to dissolve their unions. Unilateral divorce is also allowed in Laos, meaning that one spouse can initiate the divorce process without the consent of the other. However, in contested divorce cases, fault must be established in order for the divorce to be granted. This requirement can lead to prolonged and contentious proceedings as the parties attempt to prove the other’s misconduct. Although the concept of irretrievable breakdown of marriage is not currently recognized as grounds for divorce in Laos (Meredith & Rowe, 1986; Gordon, 2004), the availability of no-fault divorce based on a one-year separation offers a similar option for couples who wish to end their marriages without establishing fault.

In summary, Laos’ divorce laws have been shaped by its cultural and legal traditions, as well as its socialist political system. The current legal framework, based on the 2006 Law on Family, recognizes both fault-based and no-fault grounds for divorce, with unilateral divorce allowed under certain conditions. The country does not currently recognize the irretrievable breakdown of marriage as grounds for divorce, but no-fault divorce based on a one-year separation provides a comparable alternative.

Lebanon

Lebanon’s history of divorce laws has undergone several changes, including adopting fault and no-fault theories, unilateral and mutual consent divorce, and recognizing the irretrievable breakdown of marriage (Tarabey, 2013; Fournier, Malek-Bakouche, & Laoun, 2018). The transition from a fault-based system to a more flexible approach has been marked by the introduction of various laws, such as Law No. 542 (1983), Law No. 347 (1998), and Law No. 293 (2011) (Tarabey, 2013; Fournier, Malek-Bakouche, & Laoun, 2018). These laws have gradually broadened the grounds for divorce, allowing couples to seek divorce without establishing fault and requiring either mutual consent or a court order (Tarabey, 2013; Fournier et al., 2018).

Malaysia

Malaysia’s legal system, influenced by Islamic law and English common law, provides for both fault-based and no-fault divorce, allowing both men and women the right to initiate divorce proceedings. The Islamic Family Law Act of 1984 expanded the grounds for divorce to include “irretrievable breakdown of marriage” as a no-fault ground, while civil laws also recognize no-fault divorce on the same grounds. Malaysian law requires a waiting period of up to three months before a divorce is granted, and mutual consent divorce is recognized for non-Muslims under the Law Reform (Marriage and Divorce) Act 1976 (Reddy, 1995; Jones, 1981).

Maldives

In the Maldives, the legal system is based on Islamic law, which has traditionally required fault-based grounds for divorce and granted husbands the unilateral right to initiate the divorce process. However, in 2000, the family law was reformed to expand the grounds for divorce and improve gender equality in the divorce process (Shanoora et al., 2020; Rauf & Noman, 2021).

The 2000 family law introduced the “irretrievable breakdown of marriage” as a no-fault ground for divorce, allowing couples to end their marriage without assigning blame. Additionally, the law permitted women to initiate divorce proceedings under certain conditions, providing them with greater autonomy in the process (Shanoora et al., 2020).

Despite these reforms, fault-based grounds for divorce and a waiting period of up to three months before a divorce is granted still exist in the Maldives. The waiting period is meant to allow for reconciliation efforts, but it can prolong the process and create additional challenges for couples seeking to end their marriage (Rauf & Noman, 2021).

In summary, the Maldives has made progress in modernizing its divorce laws, moving away from traditional fault-based grounds and providing women with more rights. However, aspects of the legal system still require further reform to ensure fairness and gender equality in divorce proceedings.

Mongolia

In Mongolia, the divorce process is guided by the Civil Code of Mongolia (2019), which does not require fault-based grounds for divorce. Couples can mutually consent to divorce after a one-month waiting period without the need to prove any wrongdoing by either party. This waiting period is intended to give couples the opportunity to reconsider their decision and potentially reconcile before finalizing the divorce.

For individuals seeking a unilateral divorce, there is a three-month waiting period and a mediation requirement in place. The mediation process aims to resolve disputes and facilitate an amicable agreement between the parties before the divorce is granted.

Mongolia does not have a specific legal provision for the irretrievable breakdown of marriages, but the no-fault divorce approach reflects a similar principle, allowing couples to end their marriages without establishing fault.

The country underwent significant legal changes in the 20th century, including revisions to family law and divorce procedures after the fall of the Soviet Union (Kim et al., 2017; Holmgren, 1986). These changes aimed to modernize the legal system and provide a more equitable and accessible divorce process for Mongolian citizens.

In summary, Mongolia’s divorce process is based on a no-fault approach, with waiting periods and mediation requirements in place to encourage reconciliation and amicable agreements. The country has undergone substantial legal reforms in recent decades to modernize its family law system and make the divorce process more equitable.

Myanmar

In Myanmar, the legal system recognizes both fault-based and no-fault divorce, with fault-based grounds including adultery, desertion, and cruelty under the Myanmar Buddhist Women’s Special Marriage and Succession Act of 1954 (Htoo, n.d.). No-fault divorce is allowed based on mutual consent, and the concept of “irretrievable breakdown of marriage” allows for unilateral divorce without proving fault after three years of separation (Molina & Tanaka, 2023). However, social and cultural factors may make it difficult for women to exercise their rights under these laws (Molina & Tanaka, 2023).

Nepal

In Nepal, the legal system recognizes both fault-based and no-fault divorce. Under the Nepalese Marriage Registration Act of 2028 (1971), fault-based grounds for divorce include adultery, cruelty, and desertion (Bala, 2005). In addition to fault-based divorce, Nepal allows for divorce by mutual consent on a no-fault basis, with both parties required to agree to the divorce and wait at least one year from the date of marriage to file for divorce (Jennings, 2014). Nepal also recognizes the concept of “irretrievable breakdown of marriage,” which allows for unilateral divorce without proving fault on the other spouse’s part after three years of separation (Jennings, 2014).

Oman

In Oman, the legal system is based on Islamic law, which traditionally required fault-based grounds for divorce and gave the husband the unilateral right to initiate the divorce process (Al-Azri, 2011). The 2005 family law introduced the concept of “irretrievable breakdown of marriage” as a no-fault ground for divorce and allowed women to initiate divorce proceedings under certain conditions. Fault-based grounds for divorce, such as adultery or cruelty, still exist under Oman’s family law (Mansour et al., 2020). The Omani government has introduced reforms to the country’s family law to provide more excellent protection for women in divorce proceedings (Al-Azri, 2011). Oman’s family law also requires up to three months before a divorce is granted, during which the couple may attempt to reconcile (Mansour et al., 2020).

Pakistan

In Pakistan, the divorce process is regulated by the Muslim Family Laws Ordinance, which was enacted in 1961 to codify Islamic family law and standardize divorce procedures throughout the country (Cherry, 2001). This ordinance provides for both fault-based and no-fault divorce options, allowing couples to dissolve their marriages either by proving misconduct or by claiming the irretrievable breakdown of the marriage.

Under Pakistani law, men have the legal right to unilaterally divorce their wives without any grounds, a practice known as “talaq.” However, in 2018, the government took steps to curb the misuse of this practice by making “triple talaq” illegal and punishable by up to three years in prison (Yefet, 2011). Triple talaq is a controversial form of divorce in which a man can instantly end the marriage by pronouncing “talaq” three times in succession. The 2018 reform aimed to protect women’s rights and ensure fairer divorce proceedings.

Despite these reforms, the divorce process in Pakistan still faces challenges related to gender inequality, cultural traditions, and religious interpretations. The Muslim Family Laws Ordinance was an important step toward standardizing divorce procedures and addressing some of these issues, but there is still room for improvement to ensure fairness and justice for all parties involved in a divorce.

Palestine

In Palestine, divorce laws have undergone significant changes throughout history, particularly in the last century under British, Jordanian, and Israeli rule (Cohen & Savaya, 2003; Urbanik, 2005). Today, Palestine’s divorce laws remain complex and vary depending on the region and religious affiliation of the individuals involved, with Islamic law still playing a significant role in divorce proceedings. However, Palestinian civil law also allows for no-fault grounds for divorce, such as “irretrievable breakdown of marriage,” under certain circumstances (Cohen & Savaya, 2003).

Philippines

In the Philippines, divorce has a complex history and is currently not legal, except for limited circumstances in which a marriage can be annulled, such as psychological incapacity, fraud, or lack of parental consent (Abalos, 2017; Reyes, 1953). Efforts to legalize divorce in the Philippines have faced resistance from religious groups and conservative politicians. There is no legal provision for no-fault divorce in the Philippines, with divorce only granted on specific grounds (Abalos, 2017).

Qatar

In Qatar, the issue of unilateral divorce, particularly the practice of talaq, has been controversial and debated (Al-Ammari & Romanowski, 2016; Bahry & Marr, 2005). The Personal Status Law in Qatar provides for no-fault divorce based on mutual consent, and in 2020, Qatar passed Law No. 22 of 2020, which addresses unilateral divorce by not recognizing it and mandating counselling and mediation for couples seeking a divorce. While the irretrievable breakdown of marriage is not explicitly addressed in the Personal Status Law, a court could grant a divorce based on this ground if one of the parties can demonstrate it (Al-Ammari & Romanowski, 2016).

Russia

In Russia, both fault-based and no-fault divorce systems are available (Freeze, 1990; Keenan, Kenward, Grundy, & Leon, 2013). No-fault divorce, introduced in 2004, allows parties to divorce with mutual consent on the basis of no fault theory after a one-month waiting period. Unilateral divorce may be granted without proving fault after a three-month cool-down period, and the court may order a period of conciliation before granting the divorce (Keenan et al., 2013). Fault-based divorce is also available in cases such as adultery and cruel treatment, but it may involve longer waiting periods and more complex legal procedures (Freeze, 1990).

Saudi Arabia

In Saudi Arabia, divorce laws are primarily governed by Islamic law based on the Quran and the Hadith (Saleh & Luppicini, 2017; Abdulrahman & Alamri, 2021). The divorce laws in Saudi Arabia are mainly fault-based, with men having the exclusive right to initiate divorce without having to prove fault on the part of their wives. Conversely, women generally need to provide grounds for divorce, such as abuse, neglect, or abandonment (Saleh & Luppicini, 2017).

Men can unilaterally divorce their wives without any separation requirement and without having to provide proof of fault, a practice known as “talaq” (Saleh & Luppicini, 2017). However, there have been some reforms to the divorce laws in Saudi Arabia in recent years, particularly concerning women’s rights. In 2019, a new law was passed requiring courts to notify women when their husbands file for divorce, which was seen as a step forward in protecting women’s rights in divorce proceedings (Abdulrahman & Alamri, 2021).

The concept of “irretrievable breakdown” as a legal ground for divorce does not exist in Saudi Arabian law (Saleh & Luppicini, 2017; Abdulrahman & Alamri, 2021).

Singapore

In Singapore, divorce is regulated by the Women’s Charter, which provides for both fault-based and no-fault divorce (Sun, Chong, & Lim, 2014; Quek Anderson, Chua, & Ning, 2022). According to Section 95 of the Women’s Charter (2009), a party can apply for divorce on the basis of the irretrievable breakdown of the marriage, which can be established through either three years of separation with the consent of both parties or four years of separation without the consent of one party. Additionally, fault-based divorce is available when one party can demonstrate that the other has committed adultery, behaved unreasonably, or deserted them for a continuous period of at least two years (Sun, Chong, & Lim, 2014).

Under the Women’s Charter, both parties to a divorce may also be entitled to maintenance. Spousal maintenance is available if one spouse is unable to support themselves and the other party has the financial means to provide support. Child maintenance is also provided for, and both parents have a legal obligation to provide financial support for their children after a divorce (Quek Anderson, Chua, & Ning, 2022).

Sri Lanka

In Sri Lanka, the history of divorce can be traced back to the country’s colonial past. Prior to British colonisation in the 19th century, there was no formal legal system governing divorce in Sri Lanka. Instead, marriages were typically dissolved through informal means, such as separation or abandonment (Wazeema & Jayathunga, 2017). Under British rule, Sri Lanka’s legal system was modernised, and laws governing divorce were introduced. Divorce was only permitted on fault-based grounds, such as adultery or cruelty. However, in 1959, the law was amended to allow for no-fault divorce in cases of irretrievable breakdown of the marriage (Amaratunga, 2018). Despite this change, mutual consent divorce is not recognised under Sri Lankan law. Instead, divorce can only be obtained through court proceedings, and the petitioner must provide evidence of fault on the other spouse’s part (Wazeema & Jayathunga, 2017). Additionally, there is no provision for unilateral divorce on the basis of no fault theory.

The process of obtaining a divorce in Sri Lanka can be complex and time-consuming, with several legal requirements that must be met before a divorce can be granted (Amaratunga, 2018). For example, the parties may be required to undergo counselling before the divorce can be finalised, and there may be a waiting period of up to two years before the divorce can be granted (Wazeema & Jayathunga, 2017).

Overall, the history of divorce in Sri Lanka has been marked by a strong emphasis on fault-based grounds and a reluctance to recognise mutual consent as a basis for divorce (Amaratunga, 2018). While there have been some reforms in recent years to simplify the divorce process, divorce remains complex and often difficult for many couples in Sri Lanka (Wazeema & Jayathunga, 2017).

Syria

Divorce in Syria is governed by the Personal Status Law, which was last amended in 2019 (Van Eijk, 2016). The law provides for both fault-based and no-fault divorce.

Under the Personal Status Law, a spouse may file for divorce on the grounds of harm, whether physical or psychological, or on the grounds of a severe defect in the other spouse, making the marriage’s continuation impossible (Van Eijk, 2012). Additionally, a spouse may file for divorce on the grounds of the other spouse’s abandonment for two years or more, or if the spouses have been separated for three years or more (Maktabi, 2010).

The law also allows for no-fault divorce based on the spouses’ mutual consent. If both parties agree to the divorce, they can submit a joint petition to the court (Van Eijk, 2016).

Unilateral divorce is permitted for men under Islamic law. A husband may divorce his wife without her consent by pronouncing talaq, the Islamic form of divorce. However, the husband must provide financial support to his ex-wife for a period of three months following the divorce (Van Eijk, 2012). This is stated in the Personal Status Law of Syria, which governs divorce in the country.

In cases where children are involved, the Personal Status Law also addresses issues such as child custody, child support, and visitation rights (Maktabi, 2010).

Tajikistan

In Tajikistan, the Family Code recognises both fault-based and no-fault divorce (Cleuziou, 2021). A spouse may file for divorce on the grounds of harm, whether physical or psychological or on the grounds of a serious defect in the other spouse, making the marriage’s continuation impossible (Cleuziou & Dufy, 2022). Additionally, a spouse may file for divorce on the grounds of the other spouse’s abandonment for a period of one year or more, or if the spouses have been living separately for a continuous period of two years or more (Cleuziou, 2021).

The Family Code also allows for no-fault divorce based on the mutual consent of the spouses (Cleuziou, 2021). If both parties agree to the divorce, they can submit a joint petition to the court (Cleuziou & Dufy, 2022).

Unilateral divorce is permitted in Tajikistan, but it is subject to certain restrictions (Cleuziou, 2021). A husband may divorce his wife without her consent by pronouncing talaq, the Islamic divorce form (Cleuziou & Dufy, 2022). However, the husband must provide financial support to his ex-wife for a period of three months following the divorce (Cleuziou, 2021).

In cases involving children, the Family Code addresses issues such as child custody, child support, and visitation rights (Cleuziou & Dufy, 2022).

Thailand

In Thailand, prior to 2019, fault-based divorce was the prevailing system (Teerawichitchainan, 2004). However, under the current Thai Civil and Commercial Code, both mutual consent divorce and no-fault divorce are recognised (Limanonda, 1995). Mutual consent divorce can be filed when both parties agree to end the marriage, while no-fault divorce can be filed by one party if the couple has been living separately for at least one year (Teerawichitchainan, 2004). The court may also require the couple to participate in mediation to resolve any property disputes (Limanonda, 1995). If no agreement is reached, the court will make a final decision on the division of property (Teerawichitchainan, 2004).

Timor-Leste

In Timor-Leste, divorce is regulated by the Family Code, which was enacted in 2009 and revised in 2016 (Niner, 2012). The Family Code provides for both fault-based and no-fault divorce (Grenfell, 2006). Under the Family Code, a spouse may file for divorce on the grounds of severe or repeated violation of marital duties, irretrievable breakdown of the marriage, or separation of the spouses for more than two years (Grenfell, 2006). The court may also grant a divorce if both spouses agree to it. In cases where children are involved, the Family Code addresses issues such as child custody, child support, and visitation rights (Niner, 2012).

Turkey

In Turkey, the historical background of divorce can be traced back to the Ottoman Empire, where Islamic law governed family matters (Caarls & de Valk, 2018). However, during the modernisation period in the early 20th century, secular family law was introduced, recognizing the concept of civil marriage and divorce (Demir, 2013). In 1926, the Turkish Civil Code was enacted, establishing civil marriage and divorce procedures (Caarls & de Valk, 2018).

Today, fault-based divorce is the default system in Turkey, but parties can opt for divorce based on mutual consent under the no-fault theory (Demir, 2013). In 2011, Turkey passed a law that introduced unilateral divorce without the need to prove fault on the basis of the no-fault theory (Caarls & de Valk, 2018). Under this law, if one party requests a divorce and the other party agrees, the court can grant a divorce without requiring proof of fault or a waiting period (Demir, 2013). If the other party contests the divorce, a two-year separation period must be established before a unilateral divorce can be granted on the basis of the no-fault theory (Caarls & de Valk, 2018).

Turkmenistan

In Turkmenistan, the Family Code governs divorce proceedings, allowing for divorce either by mutual consent or by a court decision (Khamidov, 2015; Liczek, 2005). In cases where one spouse seeks a divorce without the other’s consent, they must apply to the court and provide evidence of fault-based grounds, such as adultery, abandonment, or cruel treatment. There is no specific provision for no-fault divorce based on an irretrievable breakdown of the marriage, nor for unilateral divorce by one spouse without the other’s consent (Liczek, 2005). The Turkmenistan Family Code also addresses the division of property and custody of children in divorce cases (Khamidov, 2015; Liczek, 2005).

United Arab Emirates

In the United Arab Emirates (UAE), divorce is governed by the Personal Status Law, which was last amended in 2005 (Al Gharaibeh & Bromfield, 2012; El-Alami & Hinchcliffe, 1996). The law provides several grounds for divorce, including mutual consent, harm caused by one spouse to the other, and failure to provide for the family (Al Gharaibeh & Bromfield, 2012). However, there is no specific provision for no-fault divorce based on the irretrievable breakdown of marriage (El-Alami & Hinchcliffe, 1996).

If both spouses agree to the divorce, they can apply to a court for an uncontested divorce (Al Gharaibeh & Bromfield, 2012). In cases where one spouse seeks a divorce without the consent of the other, they must demonstrate to a court that there are valid reasons for the divorce (El-Alami & Hinchcliffe, 1996).

The UAE courts have jurisdiction to hear divorce cases if one or both spouses are UAE nationals or residents (Al Gharaibeh & Bromfield, 2012). Additionally, Sharia law applies to all divorce cases in the UAE, regardless of the religion of the parties involved (El-Alami & Hinchcliffe, 1996).

Uzbekistan

The Uzbekistan Family Code governs the divorce process and allows for fault-based grounds for divorce, such as adultery, abuse, and abandonment. However, no-fault divorce is also available, which is based on the irretrievable breakdown of the marriage (Nazarovna, Azamkulovich, & Ziyadullayevich, 2020; Dedahonovich & Ferdinandovna, 2020).

During divorce proceedings, the court addresses critical issues, including the division of property, spousal support, child custody, and child support. The court’s primary goal is to make decisions in the best interests of the children involved and ensure a fair division of marital property (Nazarovna et al., 2020). Factors such as the duration of the marriage, contributions of each spouse, and the needs of any dependent children are taken into account when dividing assets.

In conclusion, the Uzbekistan Family Code provides for both fault-based and no-fault divorce options. The court plays a central role in handling various aspects of the divorce process, ensuring that decisions are made in the best interests of the children and achieving a fair distribution of marital property.

Viet Nam

In Viet Nam, the divorce process is governed by the Law on Marriage and Family, which addresses key aspects such as the division of property, child custody, and child support. The court plays a crucial role in overseeing these matters, with the aim of ensuring a fair division of marital assets and making decisions in the best interests of the children involved (Vu et al., 2014; Thi, 2021).

The division of property in Viet Nam typically involves an equitable distribution of marital assets, taking into consideration factors such as the duration of the marriage, the contributions of each spouse, and the needs of any dependent children. The court has the discretion to divide assets in a manner that it deems fair and just, which may not necessarily result in an equal split (Vu et al., 2014).

Child custody arrangements in Viet Nam are determined based on the best interests of the child, with the court considering factors such as the child’s age, the parents’ capacity to care for the child, and the child’s preferences when making decisions about custody and visitation rights. Both parents have an obligation to provide financial support for their children, and the court can determine the appropriate level of child support based on each parent’s income and the needs of the child (Thi, 2021).

Domestic violence is a significant issue in Viet Nam and is recognized by the law as grounds for divorce. When domestic violence is present in a relationship, it can have implications for the division of property and child custody arrangements. Courts may take into account the severity of the violence, the impact on the victim, and the safety of the children when making decisions about these matters (Vu et al., 2014).

The introduction of no-fault divorce in Viet Nam has provided more options for couples seeking to dissolve their marriages. This reform allows couples to obtain a divorce without having to prove any misconduct by either party, streamlining the process and reducing the potential for conflict. However, the divorce process still requires the involvement of the courts to address issues such as property division and child custody (Thi, 2021).

As social norms continue to evolve and the needs of the population change, the Vietnamese legal system is gradually adapting to better serve its citizens. Despite the progress made, there is still room for improvement in areas such as the protection of vulnerable parties during the divorce process and the promotion of gender equality within the legal framework.

Yemen

In Yemen, the divorce process is primarily governed by Sharia law, which is the Islamic legal system derived from the Quran and the Hadith. The country’s legal framework is heavily influenced by traditional customs and Islamic jurisprudence (Gaimani, 2006; Würth, 2003). Consequently, the rights and responsibilities of spouses during and after a divorce are determined by these sources of law, reflecting the nation’s deeply rooted religious and cultural traditions.

Yemeni family law is a combination of tribal customs, Islamic legal principles, and state regulations. Although the Yemeni constitution guarantees gender equality, in practice, women often face discrimination, particularly in matters of marriage and divorce. Under the Yemeni Personal Status Law, a man can unilaterally divorce his wife by pronouncing the “talaq” (divorce declaration) three times, while a woman must seek a court’s permission for a divorce by proving her husband’s misconduct or inability to support her financially (Gaimani, 2006).

In addition to the unequal rights of men and women in initiating a divorce, Yemeni law does not recognize the concept of no-fault divorce, which allows couples to dissolve their marriage without proving any wrongdoing (Gaimani, 2006; Würth, 2003). This lack of legal progress reflects the challenges faced by the country in adopting more modern and egalitarian legal frameworks, which are often hindered by conservative social, cultural, and religious norms.

Child custody, child support, and property division are also addressed within the framework of Sharia law in Yemen. In the case of child custody, mothers are generally granted custody of young children until they reach a certain age, at which point custody is typically transferred to the father. This age varies depending on the child’s gender and the specific school of Islamic jurisprudence followed in a particular region (Würth, 2003). Despite being granted custody, mothers often face challenges in obtaining and maintaining custody rights due to cultural and societal pressures.

Fathers, on the other hand, are responsible for providing financial support for their children, regardless of custody arrangements. Child support in Yemen is determined according to the father’s income and the children’s needs and is usually paid directly to the mother or her guardian (Würth, 2003).

Property division in Yemen is guided by Islamic inheritance laws, which allocate assets based on a fixed share system. Women are generally entitled to a smaller portion of the marital property than men. However, women can negotiate for better property rights through their marriage contract, which can include provisions for dowries, maintenance, and other forms of financial support (Gaimani, 2006).

Efforts to reform family law in Yemen have been slow and challenging, as they must navigate the complexities of the country’s social, cultural, and religious norms. While some progress has been made, particularly in the areas of women’s rights and legal representation, there is still a long way to go to achieve gender equality and ensure that Yemeni citizens have access to fair and equitable divorce processes.

Limitations

While the research paper provides valuable insights into the social bearing of laws and their implementation regarding the irretrievable breakdown of the marriage (IBM) in India and other Asian countries, it also has certain limitations that should be acknowledged:

Limited scope: The study mainly focuses on Asian countries, which may not provide a comprehensive picture of the legal landscape of IBM in the world. Different countries and regions within may have unique legal frameworks and cultural contexts.

Cross-cultural comparison challenges: Comparing laws and their social implications across different countries can be challenging due to variations in legal systems, cultural norms, and societal expectations. The study may need to account for all the nuances and complexities involved in such comparisons.

Temporal constraints: The study is based on the legal and social context at the time of its publication, which may not remain constant. Changes in legislation, social attitudes, and cultural practices can affect the relevance and accuracy of the findings over time.

Suggestions

The study suggests amendments to Indian divorce legislation to include irretrievable breakdown of marriage (IBM) as a ground for divorce, following the lead of other Asian countries. This measure aims to streamline the divorce process, better protect individual rights, and reduce the need for courts to investigate deeply personal or contentious issues that may have contributed to the breakdown of the marriage.

Complementary efforts include public awareness through social media campaigns, education about IBM-related rights, and improved community support services like counselling, legal aid, and mediation. The study also recommends incorporating alternative dispute resolution methods and extra-judicial divorce, reducing the burden on the judicial system and potentially providing a more amicable speedy resolution.

The use of IBM as grounds for divorce also has implications when parties are unwilling or unable to disclose personal issues leading to the marriage breakdown. IBM, therefore, can facilitate divorce proceedings, avoiding the need for divulging personal or painful details.

Finally, the study suggests that being non-specific to any religion or community, IBM can be uniformly applied to all citizens, contributing to the realization of a Uniform Civil Code in India.