POINTERS OF JUDGMENT
1. Living together is not a compulsory exercise despite no specific law on Irretrievable Breakdown of Marriage
The Supreme Court held that living together was not a compulsory exercise as it invoked its constitutional powers to separate a couple through a decree of divorce even as the woman resisted dissolution of the marital tie. Insofar as irretrievable breakdown of marriage is concerned, it presently does not exist as a ground of divorce under the Act. The issue has been debated by the Law Commission in its various reports. Breakdown of marriage was incidentally considered by the Law Commission in its 59th report (1974), but the Commission made no specific recommendations in this regard.
2. Law Commission on Irretrievable Breakdown of Marriage
Thereafter in its 71st report (1978), the Law Commission departed from the fault theory of divorce to recognise situations where a marriage has completely broken down and there is no possibility of reconciliation.
Neither party need individually be at fault for such a breakdown of the marriage – it may be the result of prolonged separation, clash of personalities, or incompatibility of the couple. As the Law Commission pithily noted, such marriages are ‘merely a shell out of which the substance is gone. For such situations, the Commission recommended that the law be amended to provide for ‘irretrievable breakdown of marriage as an additional ground of divorce.
The Law Commission in its 217th Report reiterated this recommendation in 2010, after undertaking a suo moto study of the legal issues involved. So far, the Law Commission’s recommendations have not been implemented. In 2010, the government introduced the Marriage Laws (Amendment) Bill, 2010, which inter alia proposed to add an irretrievable breakdown of marriage as a new ground for divorce in both the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. After receiving suggestions from relevant stakeholders, the bill was amended and reintroduced as the Marriage Laws (Amendment) Bill, 2013. This bill was never passed.
One of the more difficult situations is where, in the opinion of the court, there is an irretrievable breakdown of marriage but only one of the parties is willing to acknowledge the same and accept divorce on that account, while the other side seeks to oppose it even if it means carrying on with the marriage.
3. Background of the Case
The court also took note of the fact that the couple had not lived together even for a day after their marriage in February 2002 and they were separated for the last 20 years during which the man married another woman after a trial court in Tamil Nadu granted a decree of divorce in 2008 on the ground of irretrievable breakdown of the marriage. However, the divorce decree was set aside by the Tamil Nadu high court in February 2019, after which the man approach the Supreme Court to save his second marriage.
4. Evaluating absence of Legislative Mandate for Irretrievable Breakdown of Marriage
The ground often taken to oppose such a decree of divorce, apart from the absence of a legislative mandate, is that the very institution of marriage is distinctly understood in different countries. Under the Hindu Law, it is sacramental in character and is supposed to be an eternal union of two people – society at large does not accept divorce, given the heightened importance of marriage as a social institution in India.
Or at least, it is far more difficult for women to retain social acceptance after a decree of divorce. This, coupled with the law’s failure to guarantee economic and financial security to women in the event of a breakdown of marriage; is stated to be the reason for the legislature’s reluctance to introduce irretrievable breakdown as a ground for divorce – even though there may have been a change in social norms over a period of time.
Not all persons come from the same social background, and having a uniform legislative enactment is thus, stated to be difficult. It is in these circumstances that this court has been exercising its jurisdiction, despite such reservations, under Article 142 of the Constitution of India.
A marriage is more than a seemingly simple union between two individuals. As a social institution, all marriages have legal, economic, cultural, and religious ramifications. The norms of marriage and the varying degrees of legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms, and religious dictates.
Functionally, marriages are seen as a site for the propagation of social and cultural capital as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social prestige. Families are arranged on the idea of a mutual expectation of support and amity which is meant to be experienced and acknowledged amongst its members.
Once this amity breaks apart, the results can be highly devastating and stigmatizing. The primary effects of such breakdown are felt especially by women, who may find it hard to guarantee the same degree of social adjustment and support that they enjoyed while they were married.
5. Consent of Parties not necessary for Exercise of Power under Article 142
Two judicial pronouncements in R. Srinivas Kumar v. R. Shametha[ (2019) 9 SCC 409) and Munish Kakkar v. Nidhi Kakkar [(2020) 14 SCC 657.] where it has been clearly opined that there is no necessity of consent by both the parties for the exercise of powers under Article 142 of the Constitution of India to dissolve the marriage on the ground of irretrievable breakdown of the marriage.
In Naveen Kohli [Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558], a three-Judge Bench of this Court has observed as under :
“74. … once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be 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.
85.Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. …
In the similar set of facts and circumstances of the case, this Court in Sukhendu Das [Sukhendu Das v. Rita Mukherjee, (2017) 9 SCC 632 : (2017) 4 SCC (Civ) 714] has directed to dissolve the marriage on the ground of irretrievable breakdown of marriage, in the exercise of powers under Article 142 of the Constitution of India.
In the Munish Kakkar case (2020) 14 SCC 657), the following observations were made:
“19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar v. R. Shametha, to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably.
That was a case where parties had been living apart for the last twenty-two years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing 1(2019) 9 SCC 409 10 that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly.
But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it.
We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both parties. Our only hope is that with the end of these proceedings, which culminate in the divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end.
The provisions of Article 142 of the Constitution provide 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. It is with this objective that we find it appropriate to take recourse to this provision in the present case.
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