On September 13, the Supreme Court of India passed a detailed judgment reiterating that a couple cannot be forced to live together in a marriage that has not worked and cannot work.
This observation came at the end of a 20-year long litigation, with the Court dissolving a marriage on twin grounds: cruelty under the Hindu Marriage Act and on account of irretrievable breakdown of marriage in exercise of the Court’s powers under Article 142 of the Constitution of India.
The judgment passed by Justices Sanjay Kishan Kaul and Hrishikesh Roy discussed at length the grounds for irretrievable breakdown. The Bench relied on an observation in a Law Commission report from 1978 to described the ground, that such marriages are merely a shell out of which the substance is gone.
Difficult for women to retain social acceptance after divorce
The Court in this judgment spoke to the rationale that is often taken to oppose such a decree of divorce. It was asserted that marriage is understood differently in different countries and under Hindu Law, it is considered a sacrament making it difficult for women to retain social acceptance after a divorce.
It read, “Under the Hindu Law, it (marriage) is sacramental in character and is supposed to be an eternal union of two people - society at large does not accept divorce, given the heightened importance of marriage as a social institution in India.”
Pending Constitution Bench reference
Over the last few years, the top court has been forced to exercise its jurisdiction under Article 142 that sanctions the Court to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it,” for the purpose of granting divorce.
This is a result of the absence of a ground allowing divorce on irretrievable breakdown of marriage under the Hindu Marriage Act, 1955 (HMA).
In 2016, the Supreme Court, while hearing an application for dissolution of marriage filed directly before it for consideration under Article 142, questioned the direct use of this power. Therefore, it referred two questions to be considered by a Constitution Bench.
“1. What could be the broad parameters for exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act.
2. Whether the exercise of such jurisdiction under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case.”
The reference before the Constitution Bench remains pending to this day.
Recommendations of Law Commission Reports
In the 71st report of the Law Commission of India in 1978, authored under the Chairmanship of Justice HR Khanna, the fault theory of divorce was departed from, and a situation where the husband and wife reach a breaking point with no possibility of reconciliation was considered.
The report discussed the changing nature of the family unit and found that such a ground must be considered. It averred that the family was becoming more democratic and egalitarian, that the husband and wife were sharing not only the family house but, in some cases, each other’s earnings.
“Because of the rising rate of female activity, the family unit is more of a coalition,” the report pointed out.
It recommended that irretrievable breakdown of marriage should be a ground for the grant of divorce under the Hindu Marriage Act.
Another Law Commission Report in 2009 reiterated this recommendation, which culminated in the Marriage Laws (Amendment) Bill of 2013 that incorporated divorce on ground of irretrievable breakdown of marriage. However, the Bill was never passed.
The systemic cruelty in divorce proceedings
Bar & Bench spoke to Malavika Rajkotia, a seasoned divorce lawyer and the author of Intimacy Undone: Marriage, Divorce and Family Law in India.
On the need for the ground of irretrievable breakdown she said,
“People’s lives are getting stuck for years and years in trials. If one party is saying as far as I’m concerned, the marriage is over, the other party saying otherwise cannot breathe life into a marriage. After all, that requires two people.”
Calling the entire exercise systemic cruelty, she described the lengths a couple must go to for a formal dissolution of their marriage.
“That is why there is this enormous wastage of time where all we can hope for is go through the rigmarole, go to the Supreme Court where we hope that 142 will be exercised, by that time it takes ten years. That is systemic cruelty.”
When asked why the ground has not been included within the Hindu Marriage Act despite several recommendations by the Law Commission and the Supreme Court as well as the evident need for transformation, Rajkotia ascribed the lack of change to unrealistic societal anxiety that if divorce is made easy, society will fall apart.
“What society are they talking about? Invariably it is the legislators’ own anxiety. It may not even reflect the truth even in their constituencies. Having said that, every society when it goes through such a radical change, does go through its moments of frozen anxiety.”
In the absence of legislation to ease the divorce process, aggrieved couples who want to move on look to the courts for succour. However, this could change if the Constitution Bench decides to limit the scope of invoking Article 142 to grant divorce decrees on the ground of irretrievable breakdown of marriage.
The way forward is for the legislature to take into account the observations of the Court in this judgment as well as the recommendations made by the Law Commission on the need for introducing such a ground in our statute books.