The Bench, however, made it clear that the grant of divorce on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion which is to be exercised with great care and caution by courts.
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IN a significant judgment, a five-judge Constitution Bench of the Supreme Court has held that it can, in the exercise of its inherent power under Article 142 of the Constitution, dissolve a marriage that has irretrievably broken down.
Article 142 confers plenary power upon the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
The Bench comprising Justices S.K. Kaul, Sanjiv Khanna, Vikram Nath, A.S. Oka and J.K. Maheshwari passed the order to this effect on Monday.
Departure from fault theory
The Bench opined that apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases, as the rules of evidence under the Indian Evidence Act, 1872 are rules of procedure.
“When the life-like situation is known indubitably, the essence and objective behind Section 13(1)(i-a) of the Hindu Marriage Act that no spouse should be subjected to mental cruelty and live in misery and pain is established. 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,” the Bench held.
Presently, the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and the Indian Christian Marriage Act, 1872 recognise only fault-based divorce. As per this, in order to get divorced, either of the parties to the marriage is required to prove fault on the part of the spouse, which includes factors such as adultery, cruelty, desertion, conversion and insanity, among others.
The Bench, however, made it clear that the grant of divorce on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion which is to be exercised with great care and caution by a court, keeping in mind several factors to ensure that ‘complete justice’ is done to both parties. For doing so, the Bench held, the court should be fully convinced and satisfied that 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 gave the following illustrative list of factors to determine that the marriage has irretrievably broken down:
- The period of time the parties had cohabited after marriage, and when the parties had last cohabited
- The nature of allegations made by the parties against each other and their family members
- The orders passed in the legal proceedings from time to time, and their cumulative impact on the spouses’ personal relationship
- Whether, and if so, how many attempts were made to settle disputes by intervention of the court or through mediation, and when the last attempt was made
- The period of separation should be sufficiently long, and anything above six years or more would be a relevant factor, the court ruled
The Bench clarified that these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age and educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children.
Besides, it held that the question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations.
The Bench made it clear that it was not codifying the factors so as to curtail the exercise of jurisdiction under Article 142(1) of the Constitution, which is situation-specific. Some of the factors mentioned could, however, be taken as illustrative and worthy of consideration, it noted.
Six months cooling-off period can be dispensed with
Section 13B(2) (divorce by mutual consent) of the Hindu Marriage Act provides that after the first motion is passed by both the spouses for mutual divorce, they would have to move the court with a second motion, if the petition is not withdrawn in the meanwhile, after at least six months and not later than eighteen months of the first motion. No action can be taken by the parties before the lapse of six months since the first motion. When the second motion is filed, the court is to make an inquiry, and on the satisfaction that the averments made in the petition are true, a decree of divorce is granted.
The Constitution Bench approved a two-judge Bench decision of the Supreme Court in Amardeep Singh versus Harveen Kaur (2017) in which it was held that the six months cooling-off period was not mandatory. The Bench held that there are cases of exceptional hardship where after some years of acrimonious litigation and prolonged suffering, the parties, with a view to have a fresh start, jointly pray to the court to dissolve the marriage and seek a waiver of the need to move the second motion.
“On account of irreconcilable differences, allegations and aspersions made against each other and the family members, and in some cases multiple litigations including criminal cases, continuation of the marital relationship is an impossibility. The divorce is inevitable, and the cooling off period of six months, if at all, breeds misery and pain, without any gain and benefit.
“These are cases where the object and purpose behind sub-section (2) to Section 13-B of the Hindu Marriage Act to safeguard against hurried and hasty decisions are not in issue and question, and the procedural requirement to move the court with the second motion after a gap of six months acts as an impediment in the settlement. At times, payment of alimony and permanent lump-sum maintenance gets delayed, while anxiety and suspicion remain,” the Bench observed.
On this count, the Bench held that the procedure should give way to a larger public and personal interest of the parties in ending the litigation, and the pain and sorrow effected, by the passing of a formal decree of divorce by the court, as de facto the marriage had ended much earlier.
Further, the Bench added that the time gap is meant to enable the parties to cogitate, analyse and take a deliberate decision not to stretch the already disintegrated marriage, or to prolong their agony and misery when there are no chances of the marriage working out.
“Once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant divorce. The waiver is not to be given on mere asking, but on the court being satisfied beyond doubt that the marriage has shattered beyond repair,” the Bench held.
Supreme Court can grant a divorce even if proceedings are pending in family court
The Bench held that the Supreme Court can pass an order to dissolve a marriage even when the main case or proceeding is pending before a family court, a trial court or another judicial forum.
“Settlements in matrimonial matters invariably end multiple legal proceedings, including criminal proceedings in different courts and at diverse locations. Necessarily, in such cases, the parties have to move separate applications in multiple courts, including the jurisdictional high court, for appropriate relief and closure, and disposal and/or dismissal of cases. This puts burden (sic) on the courts in the form of listing, paper work, compliance with formalities, verification etc.
“Parallelly, parties have to bear the cost, appear before several forums/courts and the final orders get delayed causing anxiety and apprehension. In this sense, when this court exercises the power under Article 142(1) of the Constitution of India, it assists and aids the cause of justice. Exercise of jurisdiction under Article 142(1) of the Constitution of India by this court in such cases is clearly permissible to do ‘complete justice’ to a ‘cause or matter’,” the Bench held.
The court had appointed senior advocates Indira Jaising, V. Giri, Meenakshi Arora and Dushyant Dave as amici curiae. Jaising, Giri and Arora took a common stand that the Supreme Court has the power to dissolve a marriage on the ground of its irretrievable breakdown, while Dave contended, to the contrary, that in no circumstances can the court dissolve a marriage under Article 142. Their detailed arguments can be read here.
Parties can’t file petition directly at Supreme Court
The Bench also held that parties seeking divorce couldn’t be allowed to file a writ petition or, for that matter, move a high court under Article 226 of the Constitution of India, and seek divorce on the ground of irretrievable breakdown of marriage.
It opined that the remedy of a person aggrieved by the decision of a competent judicial forum is to approach the superior tribunal/forum for redressal of their grievance.
“The parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution of India, as the case may be. Secondly, and more importantly, relief under Article 32 of the Constitution of India can be sought to enforce the rights conferred by Part III of the Constitution of India, and on the proof of infringement thereof,” the Bench held.
It added that the judicial orders passed by the court in, or in relation to, the proceedings pending before it, are not amenable to correction under Article 32. Thus, a party cannot file a writ petition under Article 32 and seek relief of dissolution of marriage directly from the Supreme Court.
Click here to read the judgment.
