Irretrievable Breakdown Of Marriage

Marital Fiction : Till Courts do us apart 

The Rom-Coms and social media especially persuades one to believe in the beautiful concept of ‘Till death do us apart’. ‘Don’t be fooled by them’ is my advice that I dispense quite succinctly to anyone willing to lend an ear. You may call me a pessimist, but I shall stick to being a ‘realist’. The headline would have definitely made you think that this was going to be a serious article but, in my defense, what is life without a little bit of satire. Enough said, here I go, lawyering up.

A friend sent me the judgment ‘Sivasankaran Vs. Santhimeenal’ penned by Hon’ble Mr. Justice Sanjay Kishan Kaul. We exchanged our usual notes on our clients who will stand to benefit from this judgment and the ones who will hopefully read the ‘writing on the wall’. To read it was a delight, the empathy for ‘divorced women’ was touching.

The brief facts of the case is like this. The Appellant-husband was married to the Respondent-wife. On the first day of being married, the wife took off saying that she was forced to marry. The relatives intervened yet it was not fruitful; the marriage was never consummated. The appellant-husband left with no recourse sent a notice for divorce on grounds of cruelty. Surprisingly, the Respondent-Wife filed a Restitution of Conjugal Rights petition. A trial took place which went on for 5 years and divorce decree was granted. The Appellant-husband got married within 6 days of the decree whereas the wife filed an appeal. The Appellate Court set aside the decree of divorce and allowed Restitution of Conjugal Rights. A second appeal took place before the Hon’ble High Court by which time it was already some 16 years since the marriage took place. The decree granted by the Trial Court was restored. The Respondent-wife then filed a Review Petition on the ground that the trial court granted decree of divorce on ground of irretrievable breakdown of marriage which was beyond its jurisdiction. The review petition was allowed and therefore the instant petition was filed by appellant-husband.  

After I finished reading it, I felt quite uneasy. The judgment forced me to look again at the impossibility that our laws impose in giving an honorable burial to an otherwise dead relationship. Marriages ‘sometimes’ work, at other times, it cannot work. It could be for variety of reasons, and I don’t want to give a lecture on social anthropology and why we do what we do. My argument is on the ‘irretrievable breakdown of marriage’ and why should it be a ground for divorce.

The fault theory of divorce is archaic. It does more harm to the institution of marriage by not only giving rise to frivolous litigation; the pleadings are filled with ‘imagined cruelty ‘and ‘holier-than-thou’ picturization which can give run for money to any prime time saas-bahu saga. The truth is not all marriages are inflicted with atrocities that find mention in these pleadings. A lot of times people grow apart, people change and to be then tied into such marriages ‘merely a shell out of which the substance is gone’ is a form of cruelty in itself. This is marital fiction. There is nothing that survives in a marriage, but a fiction created to put up with the farce of a marriage only in eyes of law. This concept finds place in Naveen Kohli (Naveen Kohli vs. Neelu Kohli (2006) where a three-judge Bench of the Hon’ble Supreme Court observed, ‘…where there has been a long period of continuous separation, it may be fairly surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.’

The Law Commission had variously recommended for law to be amended in such a manner that ‘irretrievable breakdown of marriage’ becomes an additional ground of divorce. To that effect, Marriage Laws (Amendment) Bill, 2013 was introduced however, the same never saw the light of the day. The argument for not introducing irretrievable breakdown of marriage as a ground of divorce is that law does not guarantee economic and financial security to women in event of breakdown of marriage. To my mind, there are enough recourses available legally for a woman to fight for the economic and financial security. But, remember the operating word here ‘fight’. Even statutorily provided basic rights like maintenance don’t reach the spouse for years at a stretch and in case they do, it is only after repeated interventions by the Courts.       

So what survives then is the Hon’ble Supreme Court exercising its jurisdiction under Article 142 of the Constitution of India, to complete justice between the parties. The judgment talks about the three instances in which this unique jurisdiction can be exercised:

i) Cases where parties withdraw allegations levelled against each other and by mutual consent, divorce is granted.

ii) Cases in which parties accept that there is irretrievable breakdown of marriage and themselves request for a decree of divorce.

iii) Cases where one party acknowledges irretrievable breakdown of marriage whereas the other party wants to stay in the marriage.

The instant judgment deals with the last scenario especially in the absence of consent of the parties. Reliance was placed on few judgments  (R.Srinivas Kumar vs. R.Shametha (2019) & (Munish Kakkar vs. Nidhi Kakkar (2020) while deciding that no consent was important while exercising powers under Article 142 of Constitution of India to dissolve marriage on ground of irretrievable breakdown of marriage. In Munish Kakkar, it was observed by the Hon’ble Supreme Court, ‘.. 21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do ‘complete justice’ between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case..’

Interestingly a very vital aspect was also covered in Sivasankaran judgment which is often ignored while deciding divorce cases and that is of ‘cruelty’. What happens in cases where the Courts below do not find sufficient material to conclude and grant divorce on grounds of cruelty. However, subsequent circumstances may show the conduct of the other party to be amounting to inflicting mental cruelty. The conduct of the Respondent in the instant case where she has tried to harass the appellant by filing criminal cases, trying to get the spouse removed from his job, insulting him before public, threatening of physical harm and other such instances, all amounting to cruelty. As a matter of fact, the Court held that to brush aside these incidents on perception of ‘wear and tear of marriage’ cannot be remotely held true as the couple did not reside together for a long period of time. Undisputedly, the parties did not live together for even a day!

As the Hon’ble Court observed in the first few lines of the judgment, ‘It appears there was a crash landing at the take-off stage itself!’ sums it all. A marriage which never got consummated with parties living separately for almost 20 years, it is perfect example of how important it is to make ‘irretrievable breakdown of marriage’ as a ground for divorce. A case which is perfect example to show that ground of cruelty on account of subsequent facts can favour grant of decree of divorce. And rightly so in the case.    

Now I know one will argue that I did not make any compelling argument for introducing ‘irretrievability’ as a ground for divorce. I may also be accused of ignoring the pain, trial, and tribulation of a fellow woman, not trying to walk in her shoes. I understand the sentiments, I really do but sometimes, in matters of heart, you really can’t hold on to someone, cause the tighter you hold on to them, the more they want to slip away. As lawyers, we counsel our clients about finding amicable settlements. We encourage them to ignore few instances and to look at a larger picture of them being at peace and happy in the longer run. Very few listen to our advice. Here is hoping that this judgment may help many people in achieving closures that they are searching for in Court corridors.