ABSTRACT
This article deals with an evolving concept of irretrievable breakdown of marriage. Through this analysis, we will discuss the grounds of irretrievable breakdown of the marriage. Whether the Court has powers under Article 142(1) of the Constitution of India to grant the divorce in cases in which the other spouse opposes the prayer. Whether irretrievable breakdown of marriage should be used as a ground to grant the decree of divorce when there is no legislation to support this ground and what are the legal, social, and ethical implications of this concept for India.
KEYWORDS:
Divorce, Article 142 of the Indian Constitution, Irretrievable breakdown of marriage, Hindu Marriage Act.
INTRODUCTION
The current jurisprudence of divorce is based on the doctrine of fault or mutual consent divorce. The irretrievable breakdown of the marriage concept would help to dissolve the marriage without engaging in the adversarial system of finding faults because marriage is a kind of arrangement between the parties in which it is very difficult to find faults and impose liabilities because it is a unique kind of relationship between the parties and it is not legally viable in every case for the third party to intervene and determine the liabilities. The multiple cases and the long-drawn process take a toll on the emotional and financial burden on both the parties involved. Due to the nature of the divorce process, the parties are unable to restart their lives by re-marrying or healing their emotional health. The ground of irretrievable breakdown of marriage as a ground of divorce helps in the expedition of the process of courts by timely resolution and amicable solution of the problem.
Article 142 of the Indian Constitution
Article 142 of the Indian Constitution provides the Supreme Court of India a unique power and the jurisdiction to do complete justice to the parties. The provisions of Article 142 provide that in case of absence of law or statute or there is some question of law which has not yet been resolved by legislature, the Supreme Court has powers to resolve the issues by using its discretionary power based on facts of each case. Due to the legislative vacuum as well as the availability of special powers under Article 142 of the constitution, the Supreme Court has held clarifying its power to grant a divorce under Article 142 in Shilpa Sailesh v Varun Sreebnivasan that this article does not confer the right of divorce rather it is a discretion granted to the Supreme Court. The Supreme Court will analyze each case based on factors such as the period of separation, the nature of the allegation made by the parties, how many times the courts have intervened, etc
LEGAL, SOCIAL AND ETHICAL IMPLICATIONS:
According to the Hindu sacred texts as well as the customs, marriage between two people is considered as marriage between two souls to create a future generation in a systematic method so that a healthy society can be created. The marriage is also solemnized with societal acceptance which means Divorce has a severe influence on spouses’ social and economic standing. Therefore, divorce has a huge bearing on society and every effort must be made to preserve and prevent the breakdown of this social institution. Since the doctrine of irretrievable breakdown of marriage does not require the fixing of liabilities and responsibilities, it could provide an easy way for couples to end their relationship which could be preserved with the efforts of both spouses. This concept could possibly increase the rate of divorce in society which has the potential to gravely harm the institution of marriage.
The positive societal implication of the doctrine of irretrievable breakdown of marriage is the amicable end of divorce which also helps in normalizing the situation of divorce which is usually considered a taboo in Indian Society and hence provides an opportunity to both parties to end their legal obligation towards each other when their relationship has deteriorated beyond repair. The ground of irretrievable breakdown of the marriage can be claimed unilaterally by the one party which might result in placing individual rights over the rights of both parties in marriage and this granting of divorce without the consent of both parties could result in feelings of injustice and unfairness towards other spouse.: The entire jurisprudence of irretrievable breakdown of the marriage lies on the discretionary powers of the judges under Article 142 of the Constitution which have the potential to originate the inconsistency in the decisions of the judges and which could cause injustice to parties
Law Commission and Legislative Approach
The Law Commission in its 71st Report whereby it proposed that the restriction of divorce grounds causes injustice to both the parties involved in the case who are unwilling to stay in the marriage. It gave instances of various cases in which parties are not able to prove or impose the matrimonial fault on each other and hence unable to get a divorce due to the fault-based mechanism of the Hindu Marriage Act’s Section 13.
It also stated that the sanctity of a marriage does not lie in refusing to sever the marital ties but the wisdom lies in recognition of this fact and ultimately “declaring defunct de jure what is already defunct de facto”
It recommended the legislature to amend Section 13 of the Hindu Marriage Act 1955 and include “irretrievable breakdown” as the ground to claim the divorce. Hence it was recommended to consider it a valid ground. Despite the recommendations of the Law Commission, there have been no changes made in Section 13 of the Hindu Marriage Act, of 1955. The legislature is not yet accepting the concept of divorce based on no particular fault of either of the spouses. On the basis of the Law Commission Report, the Marriage Laws (Amendment) Bill, 1981 was introduced in Parliament. However, this bill has lapsed due to persistent opposition from women’s rights organizations.
Potential arguments and counterarguments:
The opposition to the findings of the Law Commission states that there already exists the provision of mutual divorce and the inclusion of an “irretrievable breakdown of marriage” would further make the divorce proceedings very complex both for the courts and the leading parties. such instances of the application of Section 142 of the Constitution, the discretionary powers of the Supreme Court are involved which can be considered as a threat to the institution of marriage and would also increase the intervention of the Supreme Court in family matters. The current divorce provisions of the Hindu Marriage Act 1955 are inadequate to provide solutions to the problems confronted by courts in cases wherein a marriage is totally devoid of its substance, yet no proviso of seeking divorce is legally available. The current position is that the ground of irretrievable breakdown of marriage can only be invoked by the Supreme Court by using its special powers under 142 of the Constitution. This process is inaccessible to the majority of the population of India due to financial and geographical challenges.: Apart from using the irretrievable breakdown of marriage, the Supreme Court has proceeded to convert the petition of divorce into mutual consent under Section 13-B of the Act which provides for the mutual consent of the parties to divorce. In 2017, the Supreme Court in the case of “Amardeep Singh v Harveen Kaur” had attempted to refrain from using Section 142 and had provided a waiver of the cooling off period and this opened the door for the application of Section 13-B (2) to subordinate courts. In recent cases, the High Court has used its discretionary power to settle matrimonial disputes in 2021, in the case of “Suresh S. v. Lakshmi”, the High Court dissolved the marriage through mutual consent after the parties agreed to the settlement and further, the cooling-off period has also been waived by the High Court.
CONCLUSION
The making of changes in the provisions of divorce by the legislature in Section 13 might be a long-drawn process due to the regulation of the “sacred institution” of marriage by societal norms. However, society would not stop facing situations in which dissolution will be the only resolution for relationships that have turned dead, and freeing the parties from the shackles of the marriage is the best way for the healthy survival of both parties. Due to the unavailability of the residual provisions in Section 13 for granting divorce on “just and equitable grounds”. The appellate powers of the High Court can help in reviewing the facts and findings of the lower courts and can allow the petition for mutual consent divorce at the appellate stage after conducting settlement and negotiations between the parties involved.
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WRITTEN BY MUSKAN.
