Source: Times of India dated 10.10.2019
-- Amit Anand Choudhary, New Delhi
Though ‘irretrievable breakdown of marriage’ is not a ground for divorce under the Hindu Marriage Act and Special Marriages Act, the Supreme Court has, in a significant ruling, said divorce can be granted if a marriage is totally unworkable, emotionally dead and beyond salvage.
Coming to the rescue of a man fighting a legal battle for divorce for the last two decades, a bench of Justices S K Kaul and M R Shah invoked the SC’s inherent powers under Article 142 to do “complete justice” and allowed his plea saying the marriage had broken irretrievably. The man’s plea had been earlier rejected by a lower court and the Andhra Pradesh high court after his wife refused consent for separation. The couple had been living separately for the last 22 years after their relationship ran into rough weather just a few years into their marriage in 1993.
SC rejects woman’s plea that her consent must for divorce
The apex court, in a series of verdicts, has asked the Centre to amend the law to introduce irretrievable breakdown as one the grounds for divorce, but the law remains unamended and divorce is denied even if a couple has not lived together for years and their relationship bruised beyond repair. This effectively denies them an opportunity to explore life afresh as their marriage survives in law even if not in substance.
Even the Law Commission, in its reports in 1978 and 2009, had recommended that the Centre take “immediate action” to amend the laws with regard to “irretrievable breakdown” where a “wedlock has become a deadlock”. As the Centre failed to act on the suggestions, the apex court has from time to time invoked Article 142 to grant divorce even though the existing laws do not recognise the ground for divorce.
“This court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce can be granted,” the court said.
It added, “In the present case, admittedly, the husband and wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore, we are of the opinion that while protecting the interest of the respondent wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 to dissolve the marriage between both the parties.”
The bench rejected the wife’s plea that the marriage cannot be dissolved without her consent, and granted relief to the husband after noting that all efforts to continue the marriage had failed and there was no possibility of a reunion because of the strained relations between the parties.
“If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties does not agree...only then the powers under Article 142 of the Constitution are required to be invoked to do the substantial justice between the parties, considering the facts and circumstances of the case,” the bench said.
Times View: Forcing people to continue in unhappy marriages does nobody any good. Far from strengthening the institutions of marriage and family, the constant misery and strife it entails undermines them like little else can. There is good reason, therefore, for the law to make it as easy and painless as possible for people unhappy in a marriage to end it.
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