Supreme Court Advocacy : PSLC's Expertise and Authority

Marriage and divorce in India are governed by the personal laws of different communities such as Hindu Marriage Act, 1955 (“HMA”), The Dissolution of Muslim Marriage Act, 1939, Special Marriage Act, 1954, the Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936 etc. There are times, when the marriage between the parties stands such a situation where there is no scope of reforms or restitution. Such a situation is now recognised by the Indian judiciary as irretrievable breakdown of marriage. It is pertinent to mention herein that there is no legislation which presently deals with irretrievable breakdown of marriage and only the Supreme Court has been exercising its jurisdiction under Article 142 [1] of the constitution to grant divorce on this ground.

To assess whether the marriage has been irretrievably broken down, some indications would be that the parties have not been living together for years or they have expressed their clear intent and willingness to not live with each other or they will not be able to live with each other in any circumstances and there is no prospects of a healthy marital relations. Such a wedlock is often called a marriage which is in existence in the eyes of law but not in reality.

Several countries recognise irretrievable breakdown of marriage as a ground for getting divorce or dissolve the marriage but the same has not been added in the personal laws or divorce law of the country. The 71st Report of law commission (1978) perused the issue of irretrievable breakdown marriage and suggested that a new section has to be added in the HMA for this purpose. The Hon’ble Apex Court in the case of “Naveen Kolhi v. Neelu Kolhi” [2], while taking into account the aforesaid report of the Law Commission, also recommended the Government to make such an amendment in the HMA.

Powers under Article 142 of the Constitution

The grounds under the existing personal personal laws especially the HMA and SMA are limited and exhaustive and thus in absence of any such law, the divorce on the ground of irretrievable breakdown cannot be granted by the courts.

The Hon’ble Supreme Court derives its power to do complete justice under Article 142 of the Constitution. Time and again the Hon’ble Court has exercised its powers to grant divorce with immediate effect on the ground and thereby ending the agony and sufferings of the litigating parties.

In the landmark case of “Shilpa Shalesh v. Varun Sreenivasan” [3], the Court has explained the extent of powers under Article 142 of the Constitution. The five judge bench of the Supreme Court comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari, perused the aforesaid issue and stated 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 Hon’ble Court further observed that sharing of blame and finding fault could not be the way to address and adjudicate these rare and exceptional disputes. The Court stated against the fault theory while dissolving the marriage to do complete justice.

The Bench stated that it should be encouraged by the bench that matrimonial disputes are prolonged as such matters would not only prolong the litigation but also detrimental to the litigating parties who have already suffered a lot while litigating at such a young age. The court stated against the hyper technical and counterproductive view of law as then it would cause pain, suffering, loss and harassment. The Court also admitted that it is their and the court’s duty to amicably resolve the disputes and thereby bring the sufferings of the parties to an end.

The Hon’ble Apex court in the aforesaid judgment though did not stated specific factors, however, pointed towards certain broad factors such as, till what time after the marriage had been cohabited, when the parties had last cohabited, what is the nature of allegations levied against each other and their family members, the history of their legal proceedings and orders passed therein and its impact on their relationship, the number of attempts made till date to settle their disputes amicably by the court through mediation and when was the last attempt and the period of separation.

The Court however, stated that all the aforesaid factors have to be considered with the economic and social status of the parties which includes their educational qualifications, their children if any and their age and educational qualification, their dependency and how the parties have planned to take care of their children.

It has been expressly stated by the Apex Court that such decision of granting divorce is not a right but a discretion which is exercised with great care and caution. The court needs to be completely convinced and satisfied that the relationship of marriage between the litigation parties has ended to such an extent that it is mentally and emotionally dead, beyond salvation and the only solution left is to end the marriage.

The Apex Court in Case of “Rajib Kumar Roy v. Sushmita Saha” [4], had passed the order granting divorce to the parties on the ground of irretrievable breakdown of marriage while considering facts and circumstances pointing towards factors such as “continued bitterness, dead emotions and long separation”.

However, the Hon’ble Apex Court has also warned against such hard and fast remedy of obtaining divorce. Recently in case titled “Nirmal Singh Panesar v. Paramjit Kaur Panesar” [5], the Hon’ble Court declined the relief on the ground that the wife was ready and willing to take her matrimonial obligations. Furthermore, in case titled “Delma Lubna Coelho v. Edmond Clint Fernandes” [6], the court had refrained from exercising its power under Article 142 of the Constitution on the ground that good sense would prevail on the parties who have been living together only for 40 days.

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