ARTICLE ON DIVORCE LAW

WHETHER IN RECENT TIMES JUDGEMENTS PASSED BY THE SUPREME COURT, IN MATRIMONIAL CASES HAS CHANGED THE CONCEPT OF DIVORCE LAW IN INDIA?

INTRODUCTION:-

In the ancient times, there was no concept of Divorce in Hindu Marriages and once marriage solemnised between the male and female, it could not be broken down by either of the spouse and marriage runs up to the death of the parties .Since inception of Hindu marriage concept, Marriage is a religious sacrament and it was considered to an act of GOD which was not allowed to be broken by the married couple and was carried till last breath. The object behind it was that having regard to the High ideals which the Hindu community has always lived up to, Divorce should not be made easy and the law should be so framed as to provide the maximum opportunities for mutual adjustment But after enactment of the Hindu Marriage Act 1955 the concept about the marriage and its spirit has been changed as mainly, the Hindu Marriage Act 1955 allowed dissolution of marriage and judicial separation under the order of the court. Under section 10 of HMA 1955 it is prescribed that either spouse can seek judicial separation and under section 13 of HMA it is prescribed that either spouse can seek Divorce on the ground mentioned under section 13 of HMA 1955. Having provided, a law for dissolution of Hindu Marriage, even then it is very difficult to get a divorce on the grounds mentions in the section 13 of HMA 1955 unless both partners give their consent .If one partner objects, the other spouse has to prove allegations on the ground under which he or she wants divorce which in practical is very difficult to prove as it takes years to culminate the trial. Further if one party succeed in the trial court other party who is aggrieved from the judgements can go in appeal which again takes time and in this legal battle both parties almost spent their golden time in legal fights. Before the apex Court few cases come in light where parties were indulged in legal fight for 20 to 30 years or more. One more legal aspect which is more important and need to be discussed here is “whether Irretrievable breakdown of Marriage” is a legal ground under the Hindu marriage Act 1955?. Meaning thereby when a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, can a distressed person to the marriage seek dissolution of his/her marriage on this ground? The answer is no but it established that the Supreme Court under its extra ordinary powers under Article 142 of the Constitution of India can dissolved the marriage on the ground of “Irretrievable breakdown of marriage”. Few instances when Supreme Court has exercise the extraordinary jurisdiction to grant Divorce to the parties who were fighting each other since last 20-30 years are discussed herein below where the Supreme Court also feels that Irretrievable breakdown of Marriage should be a ground for divorce in the Hindu Marriage Act 1955.

JUDICIAL PRONOUNCEMENTS:-

In the case of Ms.Jorden Diengdeh Vs. S.S. Chopra AIR 1985 SC 935, the Supreme Court Observed that “It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as ground of Divorce in all cases..... We suggest that the time has come for the intervention of the legislature in those matters to provide for a uniform code of Marriage and Divorce and to provide by Law for a way out of the unhappy situation in which couples like the present have found themselves”

In the case of “ Naveen Kohli V. Neelu Kohli (AIR 2006 SC1675)  The Supreme Court of India has recommended the Union Of India to seriously consider bringing an amendment in the Hindu Marriage Act 1955 to incorporate irretrievable breakdown of marriage as a ground for the Divorce.

In the case of “ Geeta Mullick V. Brojo Gopal Mullick AIR 2003 Cal.321” the High Court of Calcutta has held that:

In our considered opinion, the marriage between the parties cannot be dissolved by the trial Court or even by the High Court only on the Ground of marriage having been irretrievably broken down, in the absence of one  or more grounds as contemplated under section 13(1) of the Hindu Marriage Act 1955.

In the Case of “ Krishna Vs. Som Nath (1996) DMC 667 P & H High Court  held that marriage is broken down irretrievably and it is in the interest of justice that the decree of Divorce be granted so that both the parties can live on peace. When the Court finds in facts as well as from talks of resettlement or reconciliation between parties that there was no possibility of reunion between husband and wife and refusal of decree of Divorce would only prolong the agonies of the spouses, it can dissolve the marriage on this ground.

In the case of “Savitri Pandey v. Prem Chandra Pandey AIR 2002 SC 591 the Supreme Court has held that: marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down and no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of the Supreme Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses.

In the case of “Vinita Saxena v. Pankaj Pandit  JT 2006 SC587  the Supreme Court  noticed the facts that  the marriage between the parties lasted only for five months. Both of them were living separately for over 13 years. Marriage also was not consummated. Wife filed a petition for the dissolution of marriage on the ground of physical and mental cruelty and insanity on the part of the husband. Trial court however dismissed the petition. High Court also dismissed the appeal despite the failure of the husband to appear before the court. On appeal of the wife, a division bench of the Supreme Court held that the orders of the courts below had resulted in grave miscarriage of justice to the wife who had been constrained into living with a dead relationship for over 13 years and that the fact situation clearly showed that the husband and wife can never ever stay as husband and wife and the wife’s stay with the respondent husband would be injurious to her health. Accordingly, a decree of divorce was granted in favour of the wife against the husband. The Supreme Court further held that “ As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.  If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be reach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing an intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matter charged.”

In the case of “Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511” the Supreme Court  has  occasion  to examined  71st report of the law Commission of India which was prepared on “ irretrievable Breakdown of Marriage” In the said Report, it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet such a situation has arisen in which the marriage cannot survive. The marriage has all the external appearances of marriage, but none in reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bonds which are of the essence of marriage have disappeared. It is also mentioned in the said Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavor to reconcile the parties; yet, if it is found that the breakdown is irreparable, and then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.”

CURRENT OBSERVATIONS OF THE SUPREME COURT:-

In very recent judgments also, the observations of the Supreme Court through its verdicts shows similar thought which are mentioned in nutshell:-  

In the case of Manish Kakkar Vs. Nidhi Kakkar Civil Appeal No.9318 of 2014 dated 17.12,2019, the Supreme Court has held that:

Marriage being a dead letter can be dissolved by exercising of  jurisdiction under Article 142 of the Constitution of India.

 In the Case of “Krishnaveni Vs. Pankaj Rai & Anr. Crl.Appeal No. 321 of 2020 dated 19.02.2020” it has been held  by the Supreme Court that Marriage Solemnized during a pendency of appeal from a decree of Divorce  would not ab-initio void and certainly not when such appeal is filed after expiry of limitation period to file an appeal against decree of Divorce.

In the case of Rani Nirshimha sastry Vs. Rani Suneela Rani Civil Appeal No. 8871 of 2019 Dated 19.11.2019, the Supreme Court has held that:

A person who has faced the trial for the offence under section 498A IPC and he has been acquitted  of all the charges of offence under section 498A of IPC ,alleged by wife against the Husband , amount to cruelty on the Husband as such the Husband is entitled to a decree of a Divorce .

In the Case of “Vijay Kumar Ram Chandra Bhate Vs. Neela Vijay Kumar Bhate (2003) 6 SCC 334, the Supreme Court has Held that:

Averments, accusations and character assassination of the wife by the Husband in written statement constitute mental cruelty for sustaining the claim of Divorce under section 13 of HMA 1955.

In the Case of “ R.Sri Nivas Vs. R.Shametha Civel Appeal no.4696 of 2013 dated 04.10.2019, the Supreme Court has held that:

Article 142 of the Constitution of India can be invoked to do complete and substantial justice between the parties  by granting Divorce, even when one party is not agree for the Divorce, keeping in view of the fact that marriage has been broken down irretrievably.

CONCLUSION:-

From the above cited judgments, its transpired that the intention of the court is very much clear that forcing people to continue in unpleasant marriages are not good for litigating parties or others who are in similar situation .For strengthen the institution of marriage, compelling circumstances ought not to be encouraged rather it is in the welfare of the society at large to provide them comfort way to part ways. Law of the Divorce should be make easy and painless as possible for the people who are unhappy in a marriage to end it without burdening and waiting for decade and that is why the Supreme Court in series of pronouncement has recommended the Union of India and Ministry of Law and Justice to bring suitable change in the existing Laws of Divorce to incorporate Irretrievable breakdown as a ground of Divorce because if divorce is denied to the couple who are not living together for years and their marital relationship broken beyond repair which resulted to denied them an opportunity to explore afresh life and that is why in absence of suitable law, the Supreme court is exercising its inherent powers under article 142 of the constitution of India for dissolution of marriage where the court finds that the marriage is totally unworkable and emotionally dead.

*The writer is practicing Advocate in the Supreme Court of India. The views are personal which are based on judgments passed by the Hon’ble High Court & Hon’ble Supreme Court. The contents are not for the purpose of legal advice.

* By Mahesh Tiwari Advocate