Marriage is among one of the significant societal institutions. Hindus believe marriage as sacred, also not soluble and eternal. There was no concept of divorce in the beginning for Hindus, later Divorce was added by way of Hindu Marriage Act, 1955. As per this Act, marriage solemnized previously or after the enactment of it, those can be dissolved only on grounds provided under Section 13 of the Act. Later, Sec 13(1) clauses (viii) and (ix) were amended in 1964, furthering the theory of breakdown, and divorce by mutual consent was established in 1976. In order to meet the transforming societal needs, the Indian legislature has attempted to make irretrievable breakdown of marriage as a ground for divorce.
Irretrievable breakdown of marriage means a circumstance in which one or both the spouses cannot live together or not liking to live together, also ending their husband and wife relationship with no desire of continuing their spousal duties[1]. There is no chance of spouses cohabiting together as husband and wife, where both became indifferent to each other and no fault on both sides, but the circumstances made them to get separated.
In 1976, an amendment was made that included the idea of divorce by mutual consent. A divorce cannot be granted until six months have passed following the filing of the divorce petition by mutual consent, according to Section 13B (2) of the Hindu Marriage Act, 1955 (the Act). The time frame in question was established to give the parties an opportunity to reconsider, with the intention that the court would only issue a divorce by consent if there were no prospects for reconciliation.[2]
Both the concepts of Irretrievable breakdown of marriage and waiving period are in limelight due to the Supreme Court’s recent landmark judgment in Shilpa Sailesh V Varun Sreenivasan.
The Apex Court in this judgment in this case dealt with the SC’s power in granting divorce with the help of Article 142 under Irretrievable breakdown of marriage, whether the parties can claim divorce as a right under this ground of marriage, when would waiting period of 6 months under Hindu Marriage Act be waived and factors to be considered for it . The researcher in this article would analyse all these issues in addition to defining irretrievable breakdown of marriage’s journey as a divorce ground in various Supreme Court decisions, law commission reports and so on.
Waiving of Cooling Period under Hindu Marriage Act
According to Section 13-B(1) of the Hindu Marriage Act, if the following requirements are met, a decree of divorce may be granted on a joint petition by the parties:
a)the parties have lived separately for a period of one year or more prior to presentation of the petition;
b) they have been unable to live together; and
c) they have mutually agreed that the marriage should be dissolved.
According to Section 13-B subsection(2), if the petition is not withdrawn within six months and no later than eighteen months after the first motion, the couple/parties must file a second motion with the court. The parties cannot take any action before six months have passed from the initial motion. A divorce decree is given after the court conducts an investigation into the second motion and determines that the claims made in the petition are true. It is clear that the purpose of adding subsection(2) to Section 13-B of the Hindu Marriage Act is to give the spouse or party time tot reflect and evaluate their desire to split before moving the second motion.
In Amardeep Singh v Harveen Kaur the court looked into the question of this cooling period being compulsory or discretionary. It was decided that in case of proceedings which are pending for long time in the courts, also in exceptional situations the cooling period can be waived by the court. The court can consider some of the factors like how long parties have been married, how long the case is pending, how much time they have been staying separately, any other proceeding between the spouses, parties attending of mediation or conciliation, any frank settlement made between parties regarding alimony, child custody or any pending disputes between them. It would also be granted when there is no hope of further reconciliation and parties were separate for long time, than period specified in Sec13-B(2). The time lapse is intended to give the parties time to reflect, consider their options, and decide carefully. The goal of the cooling period is not to prolong an already failing marriage or the suffering of the parties when there is no likelihood of the union succeeding[3]. As a result, once all attempts to save the marriage have been made, there is no chance of reconciliation or cohabitation. The court must be convinced beyond a reasonable doubt that the marriage has broken beyond repair before waiving the requirement.[4]
In Amit Kumar V, Suman Beniwal, the court ruled that after the condition for waiting period of 18 months from the separation date is satisfied, it can be said that the parties had sufficient time to think, analyse and take a reasonable decision whether they had to end their marriage. This separation period prevents rash and careless marriage breakdown, allows tempers to cool, anger to fade, and gives couples time to forgive and forget. At the same time, where there has been a lengthy period of complete separation and the parties have moved apart and mutually agreed to separate, it would be incoherent to continue the litigation by requesting the parties to transfer it to the trial court[5].
Irretrievable breakdown of marriage
The concept of irretrievable breakup of marriage was introduced for the first time in New Zealand, where it was recognised that it is not required for a spouse to have some fault or other for wanting to opt out of a marriage, and therefore the law must recognise and adapt to that necessity. In New Zealand, the court issued the first divorce on the ground of irretrievable collapse of marriage in 1921. The Court ruled that “when matrimonial relations have ceased to exist, it is neither in the interests of the parties nor in the public interest to keep the man and woman bound in law as husband and wife.”
Although Section 13 of the Hindu Marriage Act, 1955 does not list irretrievable collapse of marriage as a reason for divorce, several judgements have made conclusions based on the principle.
In the case of V. Bhagat v. D. Bhagat[6], the Supreme Court stated, “We come to this conclusion of granting divorce without any mental compunction because it is evident that, for whatever reasons, this marriage has broken down and the parties can no longer live together as husband and wife; if such is the situation, it is better to close the chapter”.
In Naveen Kohli V. Neelu Kohli [7]the Supreme Court has once again made a strong plea for including irretrievable breakdown of the marriage as a separate ground of divorce under Section 13 of the Hindu Marriage Act 1955. The husband had filed a petition for divorce from his wife on various grounds of cruelty, alleging that the wife had criminal complaint against her. The couple was nothing but simply unhappy with one other’s presence and desperately wanted to part ways. The Court held that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to the parties and no use of continuing the matrimonial bond which is beyond repair.[8] Excessive reliance on fault as a reason for divorce according to the judges, fosters marriage transgressions, heightens hostility, and extends the continuous schism between the parties. After considerable efforts for reconciliation have been made, it is discovered that divorce should not be delayed because separation is unavoidable and the damage is irreversible.
In its seventy-first report, the Law commission of India proposed that irretrievable breakdown of marriage be added as a reason for divorce. According to the paper “restricting the ground of divorce to a specific offence or matrimonial disability causes injustice in cases where neither party is at fault, or the fault is of such a nature that the parties to the marriage cannot be worked”. When the emotional and other relationships that are the essence of marriage have vanished, there is little point in keeping the marriage as a façade.” The Law Commission of India, in its 217th Report, suggested the inclusion of irretrievable collapse of the marriage as another cause for divorce in 2009[9].
The versions of irretrievable breakdown are as follows:
1. According to the law, the marriage has been broken down and should be dissolved.
2. The legislation requirements for marriage breakdown; if the grounds are met, the court has no choice except to dissolve the marriage.
3. Even after judicial separation, the parties are not ready to live together.[10]
The Apex Court after analysing all the aspects, held that the divorce grant on the basis of irretrievable breakdown of marriage by this court is not a right which can be claimed by the parties, but a discretion which the court exercises with significant care and caution, considering various factors to see that ‘complete justice’ is done to the both parties.
The court can grant divorce on this ground when it is wholly persuaded and satisfied that the marriage is not workable, emotionally dead and beyond salvation, hence marriage dissolution is the perfect and only solution. For doing his various factors are to be considered like:
1.period of time the parties had cohabited after marriage
2.when the parties had last cohabited
3. the nature of allegations made by the parties against each other and their family members
4. the orders passed in the legal proceedings from time to time an its cymulative impact on personal relationship
5. whether and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when was the last attempt made etc.
6. Further, the separation period should be long and anything above six years or more would also be a relevant factor.
These factors should be analysed and checked keeping in mind the economic and social status of the parties, inclusive of 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 ways the party seeking divorce intends to take care and provide for the spouse or the children. Other aspects to be considered are custody and minor children welfare, fair and adequate alimony for the wife, and children’s economic rights and other pending issues.[11]
Granting of divorce under Article 142 by SC on the grounds of Irretrievable breakdown of marriage
Article 142 of Indian Constitution says that “In the exercise of its jurisdiction, the Supreme Court may pass such decree or make such order as it is necessary for doing complete justice in any cause or matter pending before it, and any such decree or order shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by parliament and, until such provision is made, in such manner as the President may by order prescribe.”
In such instances, exercising jurisdiction under Article 142(1) of the Indian Constitution by this Court is plainly permissible in order to provide “complete justice” to a “cause or matter.” We must agree that this Court can issue an order or decree that a family court, trial court, or High Court can issue that is enforceable in Indian territory. The Supreme Court can also do entire justice while a case is ongoing before a family court, trial court, or other judicial venue using the powers conferred by Articles 136 and 142(1) of the Constitution.
There is no dispute or problem of lack of subject-matter jurisdiction. Settlements in marital cases generally bring to an end several legal actions, including criminal proceedings in many courts and locations. In such circumstances, the parties must file separate applications in numerous courts, including the jurisdictional High Court, for proper remedy and closure, as well as case disposition and/or dismissal. This places a load on the courts in the form of listing, paperwork, formalities, verification, and so on. Parallel to this, parties must incur the costs, appear before many forums/courts, and final orders are postponed, producing tension and fear. In this respect, when this Court exercises its authority under Article 142(1) of the Indian Constitution, it assists and aids the cause of justice.
The discretionary power granted to the SC in the form of article 142 has been exercised based on a factual matrix in the specific case, judged on objective criteria and factors, without ignoring the statutory provisions goal. For example, in the Amit Kumar case, after fulfilling the statutory requirement of a waiting period of one and a half years, the parties mutually agreed to separate and were granted divorce under Article 142.
In Ashok Hurra V Rupa Bipin Zaveri case this Court was confronted with a situation where the marriage had fallen apart and the couple had separated in 1983. They did not between the parties have any specific issue, but difference of opinion had cropped up. The 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. This Court, therefore, exercised the power under Article 142(1) of the Constitution of India to grant a decree of divorce.
The court also held that it would not read the provisions of the Hindu Marriage Act, their underlying intent, and any fundamental specific issue of public policy, as barring this Court from dissolving a broken and shattered marriage in exercise of the Constitutional power under Article 142(1) of the Constitution of India. If at all, the underlying fundamental issues of public policy, as explained in the judgments of V. Bhagat, Ashok Hurra, and Naveen Kohli, support the view that it would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue.
The court was of view that not every time Fault theory which is considered while granting divorce, in which the party whose fault is more is considered guilty is observed and divorce is granted should be followed, but in rare and exceptional matrimonial conditions, it needs to dilute this theory of apportioning blame and greater fault in case of irretrievable breakdown of marriage by granting divorce under Article 142(1) of the Constitution for doing ‘complete justice’ in a particular case.
In Munish Kakkar v. Nidhi Kakkar and Sivasankaran v. Santhimeenal, the court held that there is no requirement of consent by both parties for dissolving marriage under the powers granted by Article 142(1) of the Constitution in the ground of irretrievable breakdown of marriage.[12]
Conclusion:
The Judgement in Shilpa Sailesh V Varun Sreenivasan is of great importance as it laid down irretrievable breakdown of marriage as ground for divorce which is only to be exercised by court and not by parties reducing the suffering of the parties, also providing them freedom to live separately. It also gave the SC power to grant divorce to parties on this ground to do complete justice and also it said that when there is irretrievable breakdown of marriage, then cooling period can be waived off. These observations by the court are of significance to both legal fraternity and the parties, in case of legal fraternity, it allows judiciary to reduce paper costs of dealing with cases by orders etc, prevents the multiple proceedings on same divorce case allowing the court to deal with many other important cases, also saving the courts valuable time. In case of parties, it reduces the agony and suffering of parties due to unworkable marriage, providing them a ground of divorce when there is no other solution rather to get separated even after many efforts to resolve the dispute failed, further waiving off waiting period is also an appreciable step as it reduces the time gap for granting divorce to parties.
[1] Network, L.L.N. (2021) Irretrievable breakdown of marriage: Need of an hour, LexForti. Available at: https://lexforti.com/legal-news/irretrievable-breakdown-of-marriage-need-of-an-hour/ (Accessed: 14 May 2023).
[2] Waiver of the Statutory period of Six months for Dissolution of Marriage (no date) Waiver of the statutory period of six months for dissolution of Marriage. Available at: https://www.indialawoffices.com/legal-articles/waiver-of-statutory-period-for-dissolution-of-marriage (Accessed: 19 May 2023).
[3] -, D.R.S. et al. (2020) Should the cooling off period be waived in cases of consensual divorces, iPleaders. Available at: https://blog.ipleaders.in/cooling-off-period-waived-cases-consensual-divorces/ (Accessed: 24 May 2023).
[4](2017) 8 SCC 746
[5] (2021) SCC Online SC 1270
[6] (1994) 1 SCC 337
[7] (2006) 4 SCC 558
[8] Network, L.L.N. (2021) Irretrievable breakdown of marriage: Need of an hour, LexForti. Available at: https://lexforti.com/legal-news/irretrievable-breakdown-of-marriage-need-of-an-hour/ (Accessed: 22 May 2023).
[9] Network, L.L.N. (2021) Irretrievable breakdown of marriage: Need of an hour, LexForti. Available at: https://lexforti.com/legal-news/irretrievable-breakdown-of-marriage-need-of-an-hour/ (Accessed: 22 May 2023).
[10] Singh, N. (no date) Irretrievable breakdown of marriage: A critical study” – pen acclaims. Available at: http://www.penacclaims.com/wp-content/uploads/2021/12/Niyati-Singh.pdf (Accessed: 22 May 2023).
[11] Khan, A. (no date) Debriefed: What is irretrievable breakdown of marriage? can couples move supreme court for divorce?, Bar and Bench – Indian Legal news. Available at: https://www.barandbench.com/columns/debriefed-what-is-irretrievable-breakdown-of-marriage-can-couples-move-supreme-court-for-divorce (Accessed: 24 May 2023).
[12] 2023 SCC OnLine SC 544
Author: Bhavana Ayyapa Reddy Gari
Juris Centre 