What if a couple reaches a stage where the breakdown of their sacred social institution “Marriage” is such that it cannot be revived and they seek divorce? This is when the concept of “Irretrievable Breakdown of Marriage” comes into the stream. In a recent historic judgment, a Constitution Bench of the Hon’ble Supreme Court examined the question of exercising its powers under Article 142 to pass the decree of divorce on the ground of “Irretrievable Breakdown of Marriage”. In this blog, we will discuss the highlights of the landmark judgment.
WHAT IS THE IRRETRIEVABLE BREAKDOWN OF A MARRIAGE?
Section 13 in The Hindu Marriage Act, 1955 (“The HMA”) deals with the “Grounds of Divorce” which does not include “Irretrievable breakdown of marriage” which infers that it is not a statutory ground to seek divorce in India. There is no fixed definition of the term but it can be understood as a situation in which the separation of the couple is inevitable, the damage is irreparable and there is no possibility of reviving their marital relationship.
WHY DID THE CONSTITUTION BENCH CONSIDER THE ISSUE?
The Hon’ble Supreme Court in the Shilpa Shailesh v. Varun Sreenivasan [TP(C) No. 1118/2014], issued notice to the Attorney General for India (AGI) to consider arguments on a few issues which included “The stand of the Government with regard to statutory incorporation of irretrievable break-down of marriage as one of the conditions for grant of divorce.” To this, the AGI suggested that the matter may also require to be considered by a Constitution Bench. Accordingly, the court formulated two questions of law.
The other bench of two judges also examined the formulated questions by the court in the above case and accepted the submission of AGI. It was left to the discretion of the Constitution Bench to consider the questions indicated by the AGI. Accordingly, the Constitution Bench heard both parties and formulated another question of law that was: “whether the power under Article 142 of the Constitution of India is inhibited in any manner in a scenario where there is an irretrievable breakdown of marriage in the opinion of the Court but one of the parties is not consenting to the terms”.
MAIN RULING OF THE COURT
- After observing various judgments, the Court concluded that granting divorce on the ground of “Irretrievable Breakdown of Marriage 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.”
- The court further held that under the powers of Article 142(1) of the Constitution of India, the “Supreme Court has the discretion to dissolve the marriage on the ground of its irretrievable breakdown.”
FACTORS TO BE CONSIDERED BY THE COURT
The court held that the marriage has irretrievably broken down is to be factually determined and firmly established and that the court should be fully convinced that the dissolution of the marriage is the only solution.
For the same purpose, it suggested some of the factors which need to be considered by the court while deciding the same, which includes the time period and last time when the parties had cohabited after marriage; attempts made to resolve their disputes; nature of allegations; and the period of separation should be sufficiently long (six or more years would be a relevant factor). These factors are required to be evaluated while considering the economic, social, and educational status of both parties and whether the child or the other spouse is dependent, among others.
WHETHER THE WRIT PETITION BE FILED UNDER ARTICLE 32 OR ARTICLE 226?
The court while accepting the view enshrined in the Poonam v. Sumit Tanwar [(2010) 4 SCC 460] also clarified that a writ petition under Article 32 or Article 226 of the Constitution of India cannot be filed to seek divorce on the “ground of irretrievable breakdown of marriage” directly from the Supreme Court or High Court respectively. The court opined that “Parties should not be permitted to circumvent the procedure and 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.”
This judgment by the Hon’ble Supreme Court in the Shilpa Shailesh v. Varun Sreenivasan is a landmark judgment as it provides the court with the authority to exercise its plenary powers under Article 142 of the Indian Constitution to pass a decree of divorce on the grounds of Irretrievable Breakdown of Marriage and do “complete justice” to the parties when the court is satisfied with the fact 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.”
Author’s Name: Gunjeeta (National Law Institute University, Bhopal)