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IRRETRIEVABLY BREAKDOWN OF MARRIAGE
Team SoOLEGAL 10 Oct 2024

IRRETRIEVABLY BREAKDOWN OF MARRIAGE

The institution of marriage holds significant importance and plays a crucial role in society. Despite the rising trend of divorce cases being filed in courts, marriage is still regarded as a sacred, spiritual, and deeply emotional bond between husband and wife in Indian society. It is governed not only by legal frameworks but also by societal norms. Numerous other relationships arise from and flourish through matrimonial bonds.

Divorce, in simple terms, is the legal ending of a marriage through the Court, but the process and laws differ depending on religion in India. Hindus, Muslims, and Christians each have different procedures. Divorce involves not only the separation of husband and wife but also decisions about child custody and property division.

Theories of Divorce

There are three main theories about divorce:

1.     Fault Theory:

In this theory, one spouse can seek a divorce if the other spouse has committed a wrongdoing or matrimonial offense. Section 13 of the Hindu Marriage Act outlines the grounds for this type of divorce.

2.     Mutual Consent Theory:

This type of divorce is covered under Section 13-B of the Hindu Marriage Act. It allows both the husband and wife to agree to a peaceful divorce. Before proceeding, they must settle issues like alimony and child custody. The two key conditions for this type of divorce are: (i) mutual consent, and (ii) the couple must have lived separately for at least one year.

3.     Irretrievable Breakdown of Marriage Theory:

This theory applies when the husband and wife can no longer live together, and the marriage is beyond repair. For example, if they are constantly quarrelling or living apart, it could lead to an irretrievable breakdown. Unlike the other two, there is no specific law for this in India yet. The Court examines the facts and evidence to decide if the marriage can be saved or not.

On May 1st, 2023, a Constitution Bench of the Supreme Court gave a unanimous judgment in the case of Shilpa Sailesh v Varun Sreenivasan. The Court ruled that it has the power to directly grant a divorce on the grounds of ‘irretrievable breakdown of marriage’ under Article 142 of the Constitution.

Background

The Bench explained that Article 142 gives the Supreme Court special powers to ensure justice, fairness, and good conscience. This article is unique because it allows the Court to go beyond normal legal procedures and laws to achieve 'complete justice'. However, the Bench also noted that this power must be used with caution and responsibility, while respecting basic principles like fundamental rights, secularism, and federalism, which are key parts of the Indian Constitution. Additionally, any specific public policy expressed in laws should also be protected.

Supreme Court's Power to Grant Divorce Under Article 142

According to Section 13B of the Hindu Marriage Act, 1955, couples seeking a mutual consent divorce must wait for 6-18 months after filing a joint application. If the application is not withdrawn during this time, the court can move ahead and grant the divorce. The Bench ruled that under Article 142, the Supreme Court is not required to follow this waiting period and can grant a divorce even if the case is still ongoing in a Family Court. The Court can also grant a divorce due to an ‘irretrievable breakdown of marriage’, even if one spouse disagrees, if it is necessary for justice.

The Bench acknowledged that the waiting period can be a barrier in cases where a marriage is clearly beyond saving, but it also stressed the importance of this time gap, which gives couples the chance to reconsider their decision. The waiting period can only be skipped if the Court believes that the marriage is completely beyond repair.

Before deciding if a marriage is irretrievably broken, the Court will consider factors like:

·       How long the couple lived together after marriage

·       The last time they lived together

·       The nature of the accusations made against each other

·       Any attempts to resolve their issues

·       A sufficiently long period of separation between them.

 

"Irretrievable breakdown of marriage" is not a direct reason for divorce. However, when reviewing the evidence to decide if there are valid grounds for divorce, the Court can consider the circumstances. Divorce cannot be granted on this basis if the person seeking it is at fault themselves.

Divorce on the grounds of irretrievable breakdown can be allowed when both partners have made such serious accusations against each other that the marriage seems beyond saving and they can no longer live together. The Court should use this power very carefully and only in special cases where it is truly in the best interest of both spouses.

Recent cases like Rajib Kumar Roy v. Sushmita Saha (2023) confirmed that forcing a couple to stay in a broken marriage can amount to cruelty. Another landmark case was Naveen Kohli v. Neelu Kohli (2006), where the Court observed that when a marriage is beyond repair, it is unfair to continue the legal relationship. The judgment emphasized that compelling a couple to stay together in such cases would only result in greater emotional and psychological harm.

The SC carefully considers various factors, including how long the couple has lived apart, the last time they cohabited, and any efforts to reconcile before concluding that the marriage is irreparable. In such cases, even if one party contests the divorce, the Court can still dissolve the marriage to avoid further harm.

These decisions have made the concept of irretrievable breakdown a valid basis for divorce in exceptional cases, though it hasn't been incorporated into statutory law yet.

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Stephen Allan   24 Oct 2024 4:28am
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