Divorce can be granted without waiting period: SC
Supreme Court can grant divorce in cases of "irretrievable breakdown" without sending the parties to a family court, according to a Constitution bench ruling.
Public interest lies in dissolving a “dead marriage” when a relationship has been wrecked beyond hope of salvage, a Constitution bench held on Monday, ruling that the Supreme Court can grant divorce in the event of “irretrievable breakdown” without sending the parties to a family court, where they must wait for at least six months to obtain by mutual consent or by proving accusations against each other.
Granting legitimacy to a ground of separation beyond the statutory provisions under the 1955 Hindu Marriage Act (HMA), the five-judge bench led by justice Sanjay Kishan Kaul said that the apex court can exercise its exclusive powers under Article 142 and grant divorce to do complete justice to the parties in cases where “the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward”.
The bench, also comprising justices Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari, noted that though the irretrievable breakdown of marriage is not a legally recognised ground for dissolving marriage, and that HMA obligates a couple to wait for 6-18 months before a decree can be passed, courts must not encourage matrimonial litigation since it is detrimental to both parties who lose time in chasing a raft of cases against each other.
“Thus, adopting a hyper-technical view can be counterproductive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end. Here, the procedure should give way to a larger public and personal interest of the parties in ending the litigations, and the pain and sorrow by passing a formal decree of divorce, as de facto the marriage had ended much earlier,” stated the judgment, authored by justice Khanna.
Once serious endeavours for reconciliation have been made but it is found that the separation is inevitable and the damage is irreparable, the bench noted, divorce should not be withheld since an unworkable marriage is futile and bound to be a source of greater misery for the parties.
“Public interest demands that the marriage status should, as far as possible, be maintained, but where the marriage has been wrecked beyond the hope of salvage, public interest lies in recognising the real fact. No spouse can be compelled to resume life with a consort, and as such, nothing is gained by keeping the parties tied forever to a marriage which has, in fact, ceased to exist,” it added.
Declaring that the apex court can dispense with the waiting period where the couples have already moved the family courts for divorce, the bench said that the Supreme Court can invoke its powers under Article 142 “to dissolve marriage on settlement by passing a decree of divorce by mutual consent, as well as quash and set aside other proceedings, including criminal proceedings”. It pointed out that the time gap is meant to enable the parties to mull over their decision to separate and not to stretch the already disintegrated marriage.
While the Supreme Court can dissolve a marriage even in cases where one of the spouses is not agreeable to divorce, the Constitution bench clarified that a party cannot approach a high court or the Supreme Court directly for divorce and that he or she must approach the family courts first.
In its judgment, the Constitution bench also indicated certain factors to guide the top court where the marriage can be said to be broken down without any chances of reconciliation. These included the period a couple stayed together and the subsequent period of separation; nature of allegations made by them against each other and their family members; orders passed in the legal proceedings from time to time and attempts made at reconciliation.
In June 2016, a two-judge bench referred to the larger bench of five judges the matter regarding the court’s exercise of powers under Article 142 to grant a divorce without sending the parties to a family court. Citing conflicting views taken by different benches of the top court, it also sought clarity on the broad parameters for the exercise of powers under Article 142 to dissolve a marriage between the consenting parties. The smaller bench had in 2016 appointed senior advocates Indira Jaising, Dushyant Dave, V Giri, and Meenakshi Arora as amici curiae to assist the Constitution bench. The Law Commission of India, in its reports in 1978 and 2009, had recommended adding irretrievable breakdown as an additional ground of divorce.
While settling the point of law on Monday, the five-judge bench highlighted the need of the constitutional court to move away from “fault theory” and “accusatorial principle of divorce” under Section 13 (1) of HMA, which prescribes divorce on grounds where one of the spouses can be held guilty of certain misdeeds such as cruelty, adultery or desertion. Section 13B provides for divorce through mutual consent, but both the provisions require the parties to wait for a period between 6 and 18 months.
Even two perfectly gentle and pleasant individuals having incompatible and clashing personalities can have a miserable and morose married life, said the court, adding that a fault theory that requires apportionment of guilt and blame makes it worse in such cases where the marriage is irretrievably broken down and “dead”.
“These rules of procedure must give way to ‘complete justice’ in a ‘cause or matter’. Fault theory can be diluted by this court to do ‘complete justice’ in a particular case, without breaching the self-imposed restraint applicable when this court exercises power under Article 142(1) of the Constitution of India,” said the bench, underlining the Supreme Court’s powers do ‘complete justice’ is not fettered by the doctrine of fault and blame, applicable to petitions for divorce under Section 13(1) of HMA.
Therefore, once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the bench said, it would be in the best interest of all to give legality in the form of formal divorce to a dead marriage.
Last week, a two-judge bench in a separate judgment said that though irretrievable breakdown of marriage is not a ground for divorce, it can be construed as “cruelty” and be legally recognised as a valid ground of divorce under HMA.
“A marriage which has broken down irretrievably, in our opinion, spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is, therefore, a ground for dissolution of marriage under Section 13 (1) (ia) of the Act,” said the bench of justices Sudhanshu Dhulia and JB Pardiwala said in their judgment on Wednesday last.
