A five-judge constitution bench had on May 1 held in Shilpa Shailesh vs Varun Sreenivasan that the 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. The court had declared that it had to keep in mind several factors ensuring that ‘complete justice’ is done to both parties.
The court had also held that it 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 court held that it has to factually determine and firmly establish that the marriage has irretrievably broken down.
For this, the court ought to consider several factors such as the period of time the parties had cohabitation 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 through mediation; and when the last attempt was made, etc.
More importantly, the period of separation should be sufficiently long, and anything above six years or more will be a relevant factor, it had held. The court, however, had refrained from codifying the factors so as not to curtail the exercise of jurisdiction under Article 142(1) of the constitution of India, which it held, is situation specific.
However, in Shilpa Shailesh, the bench did not have to deal with a situation in which one of the parties opposed the dissolution of marriage, despite living separately for many years.
On Tuesday, October 10, the Supreme Court bench of Justices Aniriddha Bose and Bela M. Trivedi, had to deal with a case in which it was satisfied that there was an irretrievable breakdown of marriage between the couple, but one of the spouses opposed the prayer for dissolution of marriage.
The wife, who is 82 years old, was willing to tend to her husband, who is 89, despite living separately for several years. The wife had taken care of her three children since 1963, despite the fact that the appellant-husband had exhibited total hostility towards them. She is still ready and willing to take care of her husband and does not wish to leave him alone at this stage of life, the bench noted. She also expressed her sentiments that she does not want to die with the ‘stigma’ of being a “divorcee” woman.
In defence of marriage as an institution
The bench agreed that in contemporary society, divorce may not constitute stigma, but did not want to ignore her sentiment. Therefore, the bench concluded that dissolving the marriage between the parties on the ground of irretrievable breakdown of marriage would not be doing “complete justice” to the parties, but would rather be doing injustice to the respondent-wife. The bench, therefore, dismissed the appeal of the husband against the high court’s refusal to dissolve the marriage.
The court observed that the institution of marriage occupies an important place and plays an important role in society. Despite the increasing trend of filing divorce proceedings in courts of law, the institution of marriage is still considered to be a pious, spiritual and invaluable emotional life net between the husband and the wife in Indian society, the bench added. It is governed not only by the letters of law but by the social norms as well; so many other relationships stem from and thrive on the matrimonial relationships in the society, the bench noted.
The above observations are significant, especially as a constitution bench of the apex court is expected to give its verdict in the case involving the right of same-sex couple to marry. The Union of India opposed the petition on the ground that it is against the institution of marriage, which it claimed, is heterosexual.
Therefore, it would not be desirable to accept the formula of “irretrievable breakdown of marriage” as a straitjacket formula for the grant of relief of divorce under Article 142 of the constitution, the bench concluded.
In the instant case, the bench agreed that there is no dispute that the parties have been separated for many years and all efforts to bring them together had failed. Under the circumstances, one may presume that the marriage is emotionally dead and beyond salvation and that there is an irretrievable breakdown of marriage between the parties.
The judgment, authored by Justice Trivedi, had also concluded that the appellant-husband had failed to prove that the respondent-wife had treated him with “cruelty” or that she had “deserted” him as contemplated in Section 13(1)(ia) and 13(1)(ib) respectively of the Hindu Marriage Act, 1955. The Chandigarh district court had accepted the husband’s contention and granted him a divorce, which was reversed by both the single judge and the division bench of the Punjab and Haryana high court.
