Supreme Court Advocacy : PSLC's Expertise and Authority

Matrimonial disputes are the most contested and debated matters which dwells between the question of what is right and what is the law. It is not uncommon that husband or wife initiates false / counterblast proceedings, package of cases such as under Hindu Marriage Act, 1955, Code of Criminal Procedure, 1973, Protection of Women From Domestic Violence Act, 2005, and Bharatiya Nyaya Sanhita, 2023 (Previously known as India Penal Code, 1860) all at once, against one another, even roping their relatives who never visited them, and when none of the parties are prepared step back first after prolonged litigation, they eventually come to a settlement.

The matrimonial disputes approach the Court in the most uncertain way, be it as a question of law or a question of fact. In many instances, the Hon’ble Supreme Court has recognised the fact of “irretrievable breakdown of marriage” and further exercised its powers under Article 142 of the Constitution of India to grant divorce to the parties on such ground, even though there is no law effected by the legislature on the same.

The maintenance to the wife is also the most pursued subject matter where uncertainty and ambiguity clouds the difference between right, justice, welfare and the law. The judiciary on numerous occasions have come across instances such as where the conduct of the wife is abominable. Would she still be entitled to maintenance?

There have been many loops and lack of legislative approach as to the fact that even though the married couples have been in such a wedlock for a few months, the wife or husband would still be entitled to maintenance.

It is a matter of interest that the Hindu Marriage Act, 1955 recognises the rights of people belonging to scheduled tribes, and allow them to follow their customs and rituals, which even includes polygamy. In this aspect, the Hon’ble Supreme Court had observed that in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offense under Section 494 of the Indian Penal Code, 1060 (Presently Section 82(1) of Bharatiya Nyaya Sanhita, 2023) could possibly be made out.

The divorce by mutual consent is further becoming more and more preferable, wherein the parties mutually agree to settle their differences and disputes, without contesting against each other. In this regard, if the parties have come to a settlement agreement, in view of which the parties have approached for mutual divorce, it poses another question as to what if one of the parties withdraws his or her consent at a later stage of trial or after the conclusion of trial. Would it be a contempt of court? Is it a contract? If yes, then could the other party institute an execution petition?