Synopsis: It is a well-known fact that the Indian courts are always flooded with appeals and petitions, and the situation is the same or even worse in family courts. The process is so tedious and sluggish that the cases are often left unfolded. In a way to solve this matrix a five-judge bench in a recent judgment has ruled that marriage can be dissolved if it is ‘irretrievably broken’ and the parties need not wait for the 6-18 months’ time period for the divorce decree to be passed.
The constitution bench which was led by Hon’ble Justice Sanjay Kishan Kaul held that the court could, in the exercise of this power, waive the mandatory six-month waiting period for divorce under the Hindu Marriage Act (HMA), 1955, and allow the dissolution of the marriage on grounds of irretrievable breakdown even if one of the parties was not willing. The power talked about here is the ‘Plenary power’ of the Supreme Court under Article 142 of the Constitution to do “complete justice.” In this blog, I shall be discussing the concept of the irretrievable breakdown of marriage and the powers of court u/a 142 in the purview of the recent judgment by the Supreme Court of India.
Introduction: Irretrievable Breakdown of Marriage
Hindu marriage is usually viewed as a holy union, an enduring devotional bond that lasts forever. According to Section 13 of the Hindu Marriage Act, one may apply to the court for a divorce on the reasons listed therein in order to dissolve a Hindu marriage. Over time, the Hindu Marriage Act’s stipulations have undergone significant revisions. The Marriage Laws (Amendment) Act, 1976 established Section 13(1) (i-a) to allow for divorce in instances of cruelty. The Hindu Marriage Act was amended to include Section 13-B, which allows for divorce by mutual agreement.
Section 9 of the Hindu Marriage Act, which deals with the restoration of conjugal rights, now has an explanation stating that, in cases where it is disputed whether a person’s withdrawal from society was justified, it is their responsibility to provide such justifying evidence. According to the effect of the amendment, which is noted below, the requirements of Sub-section (1)(a) of Section 23 of the Hindu Marriage Act, which states that the court must be satisfied that the petitioner is not, in any way, taking advantage of his or her own wrong or disability for the purpose of such relief, are partially relaxed. Apart from these with time the cases of irretrievable breakdown of marriage increased and there were many petitions wherein it was repeatedly requested to waive-off the cooling period of 6-12 months which was given before passing the final decree of divorce. But 6-12 months became the minimum time period in such cases and the delay itself became a case of mental cruelty for the victims of such failed marriages.
After this, it can easily be understood that neither the process nor the legislations are simple, which makes the process tiring and time-consuming. Through this landmark judgment of Shilpa Sailesh v. Varun Sreenivasan, the Supreme Court answers some very important questions regarding divorce due to the irretrievable breakdown of marriage and the extent of the court’s powers under Article 142 of the Indian Constitution to take such steps, and whether any party can approach the apex court under Article 32 or any High court under article 226 of the Constitution.
Irretrievable Breakdown of Marriage
The concept of “Irretrievable Breakdown of Marriage” comes into the stream when a couple reaches a stage where the breakdown of their “Marriage” is such that it cannot be revived and they seek divorce, the parties here live separately and share no rights over each other like that of a couple and they have no intention to live together in the future. It is covered by Section 13 (1A) of the Hindu Marriage Act, 1955 as a ground of divorce. Here, the parties after having mutually consented to separate have to wait for 6-18 months for the decree of divorce to be passed because the idea is to give the couple time to rethink as to whether they should maintain their sacred union or not. But it was also accepted by various higher courts that the time between the consent and the divorce decree itself becomes the infliction of mental cruelty on the couple.
In this historic judgment, a Constitution Bench of the Hon’ble Supreme Court observed that the time period itself is torture and puts an unnecessary burden on the parties to be bound by the unnecessary litigation. The bench also examined the question of exercising its powers under Article 142 to pass the decree of divorce on the ground of “Irretrievable Breakdown of Marriage” to do complete justice to the parties. Section 13 in The Hindu Marriage Act, 1955 deals with the Grounds of Divorce which does not include “Irretrievable breakdown of marriage” which infers that it is not a statutory ground to seek divorce in India. There is no fixed definition of the term but it can be understood as a situation in which the separation of the couple is inevitable, the damage is irreparable and there is no possibility of reviving their marital relationship.
As a result, the court gave the verdict that the period of 6-18 months should be waived off when there is no chance that the couple will reunite and the gap itself becomes mental torture. Also, the court gave certain points that need to be examined while granting divorce under the irretrievable breakdown of marriage.
Importance Of The Issue And Ruling Of The Court
The Hon’ble Supreme Court in the Shilpa Shailesh v. Varun Sreenivasan, issued notice to the Attorney General for India (AGI) to consider arguments on a few issues which included the stand of the Government with regard to statutory incorporation of irretrievable break-down of marriage as one of the conditions for grant of divorce. To this, the AGI suggested that the matter may also require consideration of a Constitution Bench.
It was left to the circumspection of the Constitution Bench to consider the questions indicated by the AGI. Accordingly, the Constitution Bench heard both parties and formulated another question of law that was: “whether the power under Article 142 of the Constitution of India is inhibited in any manner in a scenario where there is an irretrievable breakdown of marriage in the opinion of the Court but one of the parties is not consenting to the terms”.
The court held that, “the marriage has irretrievably broken down is to be factually determined and firmly established and that the court should be fully convinced that the dissolution of the marriage is the only solution.” For the same purpose, it suggested some of the factors which need to be considered by the court while deciding the same, which includes the time period and last time when the parties had cohabited after marriage; attempts made to resolve their disputes; nature of allegations; and the period of separation should be sufficiently long (six or more years would be a relevant factor). These factors are required to be evaluated while considering the economic, social, and educational status of both parties and whether the child or the other spouse is dependent, among others.
After observing various judgments, the Court concluded that granting divorce on the ground of “Irretrievable Breakdown of Marriage is not a matter of right, but a discretion, which should be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both the parties.”
Role Of Article 142 Of The Constitution
The court further held that under the powers of Article 142(1) of the Constitution of India, the Supreme Court has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. It is a plenary power of the court and the court can take such steps even in the presence of separate laws to serve complete justice. But the court also held that not every case of divorce can be brought under this ruling and they must be dealt with using the Marriage laws of the country, but when there is a case of Irretrievable breakdown of marriage, the period of 6-18 months can be waived off and the same can be done under Article 142(1) of the constitution but the court must be completely satisfied that the union has completely ended. The couples should not directly file writ petitions under Article 32 or Article 226 but should go to respective family courts first.
This step is a commendable one, the Supreme Court has set another example where it took the step to ensure equitable justice over the codified provisions. It is not unknown that society transforms with time and laws legislated at one time cannot fit the society for eternity. Also, it has to be admitted that the purpose of the ‘cooling period’ was also for the benefit of the parties but where it was evident that there lies no future for the bond to exist, in such cases, the period itself became a mental setback. It gets even more difficult because the parties cannot marry someone during the period and, has to face societal pressures.
Through this verdict, the court has shown the direction to the respective family courts too that the period of 6-18 months can be rightly waived off for the benefit of the parties ensuring all the points mentioned. This forward-looking approach of valuing mental peace and speedy redressal in divorce cases makes this judgment a historic one.
This article is written and submitted by Aditya Madhav during his course of internship at B&B Associates LLP. Aditya is a B.A. LLB 2nd year student at Rajiv Gandhi National University of Law, Patiala (RGNUL).