Introduction:
The ground of irretrievable breakdown of marriage is not a ground for divorce under law. However,the Supreme Court in Shilpa Sailesh v. V. Varun Sreenivasan delivered on May 1, 2023 held that from now on, it can exercise its discretionary powers to grant divorce on this ground, albeit with great care and caution and keeping in mind several factors. The marriage has to be totally unworkable, emotionally dead and beyond salvation before the Court can decide that dissolution of the marriage is the only way forward. In this post we will delve deeper into the judgement.
Hindu marriage is traditionally considered to be a sacred union; a devout relationship that lasts till eternity. The Hindu Marriage Act provides the right to approach the court for dissolution of Hindu marriage by grant of a decree of divorce on the grounds mentioned in Section 13 thereof. The provisions of the Hindu Marriage Act have undergone considerable changes over a period of time. Section 13(1)(i-a) was enacted by the Marriage Laws (Amendment) Act, 197631 to provide for divorce in cases of cruelty. Section 13-B of the Hindu Marriage Act was introduced for providing divorce by mutual consent. Explanation was added to Section 9 of the Hindu Marriage Act, which relates to restitution of conjugal rights, stating that where a question of whether there has been reasonable excuse for withdrawal from society arises, the burden of proving reasonable excuse shall be on the person who has so withdrawn from the society. The effect of the said amendment, as noticed below, partially dilutes the rigours of subsection (1)(a) to Section 23 of the Hindu Marriage Act, which stipulates that the court, while examining whether any ground for granting relief exists, should be satisfied that the petitioner is not, in any way, taking advantage of his/her own wrong or disability for the purpose of such relief.
Section 13-B(1) of the Hindu Marriage Act states that a decree of divorce may be granted on a joint petition by the parties on fulfilment of the following conditions:
(a) the parties have been living separately for a period of oneyear or more before presentation of the petition;
(b) they have not been able to live together; and
(c) they have mutually agreed that the marriage should be dissolved.
Sub-section (2) to Section 13-B of the Hindu Marriage Act provides that after the first motion is passed, the couple/parties would have to move to the court with the second motion, if the petition is not withdrawn in the meanwhile, after 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 satisfaction that the averments made in the petition are true, a decree of divorce is granted. Clearly, the legislative intent behind incorporating subsection (2) to Section 13-B of the Hindu Marriage Act is that the couple/party must have time to introspect and consider the decision to separate before the second motion is moved. However, 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 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. Here, the procedure should give way to a larger public and personal interest of the parties in ending the litigation(s), and the pain and sorrow effected, by passing a formal decree of divorce, as de-facto the marriage had ended much earlier.
Analysing the provisions of sub-section (2) to Section 13-B of the Hindu Marriage Act, the Supreme Court in Amardeep Singh v. Harveen Kaur went into the question of whether the cooling off period of six months is mandatory or discretionary. It was held that the cooling off period can be waived by the court where the proceedings have remained pending for long in the courts, these being cases of exceptional situations.
Exercise of Powers under Article 142 by the Supreme Court in Divorce Proceedings:
Exercise of jurisdiction under Article 142(1) of the Constitution of India by the Supreme Court in such cases is clearly permissible to do ‘complete justice’ to a ‘cause or matter’. We should accept that the Supreme Court can pass an order or decree which a family court, trial court or High Court can pass. As per Article 142(1) of the Constitution of India, a decree passed or an order made by the Supreme Court is executable throughout the territory of India.Power of the Supreme Court under Articles 136 and 142(1) of the Constitution of India will certainly embrace and enswathe this power to do ‘complete justice’, even when the main case/proceeding is pending before the family court, the trial court or another judicial forum. A question or issue of lack of subject-matter jurisdiction does not arise. 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 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 the Supreme Court exercises the power under Article 142(1) of the Constitution of India, it assists and aids the cause of justice.
However, there is a difference between existence of a power, andexercise of that power in a given case. Existence of power is generally a matter of law, whereas exercise of power is a mixed question of law and facts. Even when the power to pass a decree of divorce by mutual consent exists and can be exercised by the Supreme Court under Article 142(1) of the Constitution of India, when and in which of the cases the power should be exercised to do ‘complete justice’ in a ‘cause or matter’ is an issue that has to be determined independent of existence of the power. This discretion has to be exercised on the basis of the factual matrix in the particular case, evaluated on objective criteria and factors, without ignoring the objective of the statutory provisions. In Amit Kumar v. Suman Beniwal , the Supreme Court has held that reading of sub-sections (1) and (2) to Section 13-B of the Hindu Marriage Act envisages a total waiting period/gap of one and a half years from the date of separation for the grant of decree of divorce by mutual consent. Once the condition for waiting period/gap of one and a half year from the date of separation is fulfilled, it can be safely said that the parties had time to ponder, reflect and take a conscious decision on whether they should really put the marriage to end for all times to come. This period of separation prevents impulsive and heedless dissolution of marriage, allows tempers to cool down, anger to dissipate, and gives the spouses time to forgive and forget. At the same time, when there is complete separation over a long period and the parties have moved apart and have mutually agreed to separate, it would be incoherent to perpetuate the litigation by asking the parties to move the trial court. The Supreme Court in Amit Kumar (supra) has observed that, in addition to referring to the six factors/questions in Amardeep Singh (supra), the Supreme Court should ascertain whether the parties have freely, on their own accord, and without any coercion or pressure arrived at a genuine settlement which took care of the alimony, if any, maintenance and custody of children, etc. .
In Shilpi Sailesh v. Sreenivasan, the Apex court held that , Section 13-B of the Hindu Marriage Act does not impose any fetters on the powers of the Supreme Court to grant a decree of divorce by mutual consent on a joint application, when the substantive conditions of the Section are fulfilled and the Court, after referring to the factors mentioned above, is convinced and of the opinion that the decree of divorce should be granted.
The legislature and the courts treat matrimonial litigations as a special, if not a unique, category. Public policy underlying the legislations dealing with family and matrimonial matters is to encourage mutual settlement, as is clearly stated in Section 89 of the C.P.C., Section 23(2) of the Hindu Marriage Act, and Section 9 of the Family Courts Act, 1984. Given that there are multiple legislations governing different aspects, even if the cause of dispute is identical or similar, most matrimonial disputes lead to a miscellany of cases including criminal cases, at times genuine, and on other occasions initiated because of indignation, hurt, anger or even misguided advice to teach a lesson. The multiplicity of litigations can restrict and block solutions, as a settlement has to be holistic and comprehensive, given that the objective and purpose is to enable the parties to cohabit and live together, or if they decide to part ways, to have a new beginning and settle down to live peacefully. Therefore, in B.S. Joshi and Others v. State of Haryana and Another , the Supreme Court, notwithstanding that Section 320 of the Cr.P.C. does not permit compounding of an offence under Section 498A of the I.P.C., has held that the High Court, exercising the power under Section 482 of the Cr.P.C., may quash prosecutions even in non-compoundable offences when the ends of justice so require. This view has been affirmed by the three judges’ bench in Gian Singh v. State of Punjab and Another and reiterated by another three judges’ bench in Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and Another . The reason is that the courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counter-productive 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. In this regard, the courts only have to enquire and ensure that the settlement between the parties is achieved without pressure, force, coercion, fraud, misrepresentation, or undue influence, and that the consent is indeed sought by free will and choice, and the autonomy of the parties is not compromised. The latter two decisions in Gian Singh (supra) and Jitendra Raghuvanshi and Others (supra) observe that the inherent power on the High Court under Section 482 of the Cr.P.C. is wide and can be used/wielded to quash criminal proceedings to secure the ends of justice and prevent abuse of the process of the court, albeit it has to be exercised sparingly, carefully, and with caution. The Supreme Court, in State of Madhya Pradesh v. Laxmi Narayan and Others , has set out guidelines as to when the High Court may exercise jurisdiction under the inherent powers conferred under Section 482 of the Cr.P.C. for quashing non-compoundable offences in terms of Section 320 of the Cr.P.C. In view of the above legal position and discussion, the Supreme Court, on the basis of settlement between the parties, while passing a decree of divorce by mutual consent, can set aside and quash other proceedings and orders, including criminal cases and First Information Report(s), provided the conditions, as specified in the aforementioned judgments, are satisfied.
Grant of divorce on the ground of irretrievable breakdown of marriage in exercise of jurisdiction and power under Article 142(1) of the Constitution of India:
Meaning of the words “Irretrievable Breakdown of Marriage: A broad ground for divorce that is predicated on the development of incompatibility between marriage partners and that is used in many states as the sole ground of no-fault divorce. called also irremediable breakdown of the marriage, irretrievable breakdown.
Whether the Supreme Court, in exercise of power under Article 142(1) of the Constitution of India, can grant a decree of divorce when, upon the prayer of one of the spouses, it is satisfied that there is complete and irretrievable breakdown of marriage, notwithstanding the opposition to such prayer by the other spouse?
Section 13(1)(i-a) of the Hindu Marriage Act, enacted by Act No. 68 of 1976 with effect from 25th May 1976, reads thus:
“13 Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party—
xx xx xx
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
xx xx xx”
This provision often has to be read with clause (a) to Section 23(1) of the Hindu Marriage
Act, the substantive portion of which was enacted as a part of the main enactment vide
Act No. 25 of 1955, and reads:
“23. Decree in proceedings. — (1) In any proceeding under this Act, whether defended or not,
if the court is satisfied that—
(a) any of the grounds for granting relief exists and the petitioner 40[except in cases where the
relief is sought by him on the ground specified in sub-clause (a), subclause (b) or sub-clause (c)
of clause (ii) of Section 5] is not in anyway taking advantage of his or her own wrong or disability
for the purpose of such relief, and xx xx xx”
In Ashok Hurra v. Rupa Bipin Zaveri , decided in 1997, the apex Court was confronted with a situation where the marriage had fallen apart and the couple had separated in 1983. They did not have any specific issue, but difference of opinion had cropped up between the parties. Further, even after residing separately for thirteen years, the parties were not agreeable to a divorce by mutual consent. This was in spite of the fact that the husband had remarried and had a child. The Supreme Court was of the view that considering the cumulative effect of various factors and the marriage being dead, no useful purpose, both emotionally and practically, would be served in postponing the inevitability and prolonging the agony of the parties or their marriage and, therefore, the curtain should be rung down. The Supreme Court, therefore, exercised the power under Article 142(1) of the Constitution of India to grant a decree of divorce, though the conduct of the husband, it was observed, was blameworthy as he had remarried and conceived a child during the pendency of the proceedings. This decree of divorce by mutual consent was made conditional on payment of Rs.10,00,000/- by the husband to the wife. Only on payment or deposit of the amount in the Court, all proceedings, including those under Section 494 of the I.P.C., were to stand terminated.
In Munish Kakkar v. Nidhi Kakkar and Sivasankaran v. Santhimeenal the court had occasion to use Article 142 . In Munish Kakkar (supra), the parties had been engaged in multifarious litigations, including divorce proceedings, for almost two decades. Yet, they opposed divorce by mutual consent. The respondent – wife was based in Canada, to where she had shifted, and was statedly taking medication for depression. The appellant husband complained of loneliness and lack of co-habitation, causing mental and physical torture. Several attempts to mediate, and efforts made by counsellors, psychologists, the panchayat and even the courts did not yield results. In these circumstances, the Supreme Court exercised the power under Article 142(1) of the Constitution of India, recognising the futility of a completely failed and broken down marriage. While observing that there was no consent of the respondent – wife for grant of divorce, the Court felt that there was no willingness on her part either to live with the appellant – husband. What was left in the marriage were bitter memories and angst, which increased with the passage of time, as the respondent – wife was reluctant to let the appellant husband live his life by getting a decree of divorce. In view of the aforesaid position, the SupremeCourt exercised the power under Article 142(1) of the Constitution of India to do ‘complete justice’ between the parties. It was also directed that the appellant – husband would continue to pay the specified amount per month to the respondent – wife, which amount could be enhanced or reduced by taking recourse to appropriate proceedings.
In Sivasankaran (supra), the marriage had taken place in February 2002, and after about a year, divorce proceedings were initiated and the decree of divorce was passed in 2008 under Section 13(1)(i-a) of the Hindu Marriage Act. The appellant husband had remarried within six days of the passing of the decree of divorce. The respondent – wife filed an appeal and the dispute had remained pending till it reached the SupremeCourt. Attempts to resolve the dispute through mediation and settlement between the parties bore no fruit. The respondent – wife was resistant to accept the decree of divorce, even though she was aware that the marriage was but only on paper. Observations on the difficulty faced by women in the form of social acceptance after a decree of divorce, and also the need to guarantee financial and economic security were elucidated. However, the Supreme Court, relying on the earlier decisions in Munish Kakkar (supra) and R. Srinivas Kumar v. R. Shametha , observed that there was no necessity of consent by both the parties for exercise of powers under Article 142(1) of the Constitution of India to dissolve the marriage on the ground of irretrievable breakdown of marriage, albeit the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others. Accordingly, the SupremeCourt passed a decree of divorce by exercising the jurisdiction under Article 142(1) of the Constitution of India.
In Shila Sailesh v. Sreenivasan, the Supreme Court clearly state that grant of divorce on the ground of irretrievable breakdown of marriage by the Supreme Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties. It is obvious that the Supreme 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. That the marriage has irretrievably broken down is to be factually determined and firmly established. For this, several factors are to be considered such as
the period of time the parties had cohabited after marriage; 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, cumulative impact on the personal relationship;
whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc.
The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But 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, 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. 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 court held that it would not like to codify the factors so as to curtail exercise of jurisdiction under Article 142(1) of the Constitution of India, which is situation specific. Some of the factors mentioned can be taken as illustrative, and worthy of consideration.
Whether a party can directly canvass before the Supreme Court Court the ground of irretrievable breakdown by filing a writ petition under Article 32 of the Constitution?
In Poonam v. Sumit Tanwar , a two judges’ bench of the Supreme Court has rightly held that any such attempt must be spurned and not accepted, as the parties should not be permitted to file a writ petition under Article 32 of the Constitution of India, or for that matter under Article 226 of the Constitution of India before the High Court, and seek divorce on the ground of irretrievable breakdown of marriage. The reason is that the remedy of a person aggrieved by the decision of the competent judicial forum is to approach the superior tribunal/forum for redressal of his/her 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. Judicial orders passed by the court in, or in relation to, the proceedings pending before it, are not amenable to correction under Article 32 of the Constitution of India.Therefore, a party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage directly from the Supreme Court.