INTRODUCTION
Today, I will discuss the case of Sivasankaran
v. Santhimeental, Civil Appeal Nos. 5984-4985 of 2021, wherein the Hon’ble
Supreme Court discussed the broad contours under which a Decree of Divorce
could be passed directly by the Supreme Court of India, without referring the
parties to the Family Court, in exercise of powers under Article 142 of the Constitution
of India.
ARTICLE 142
The facts of the case are not relevant for the
purposes of this show and hence, the same are not being discussed. Before
adverting any further, let us briefly go through Article 142 of the Constitution
of India. It provides that the Supreme Court has the power to pass any decree
or order “for doing complete justice in any cause or matter pending before
it.” Whether this power encompasses the power to pass a decree of divorce
or not is a question that was answered by the Court in the present case. Now, let
us discuss the important observations by the Supreme Court.
OBSERVATIONS BY THE COURT
Firstly, the Court noted that irretrievable
breakdown of marriage does not exist as a ground of divorce under the Hindu Marriage
act, 1955 or the Special Marriage Act, 1954. Thus, in such light, the Supreme
Court “has granted decrees of divorce exercising its unique jurisdiction
under Article 142 of the Constitution of India, to do complete justice between
the parties.”
Secondly, the Supreme Court explained that it has
granted decrees of divorce to put a quietus to the matrimonial dispute in cases
where the parties themselves accept irretrievable breakdown of marriage. The
Court admitted that it has to walk a tight rope in cases where only one of the
parties is willing to acknowledge irretrievable breakdown of marriage and the
other is not.
Thirdly, the Court also observed that under the
Hindu Law, marriage is a sacrament and is ideally supposed to be an eternal
union. Further, the social acceptance of divorces in India is quite low. Thus,
it is also in this light that the Supreme Court occasionally exercises powers
under Article 142 to grant divorce.
Fourthly, the Court discussed the idea of marriage
by stating that: -
“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 a 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.”
Fifthly, the clarified that though a Reference
Petition in relation to exercise of powers under Article 142 to grant divorce
decrees where there is mutual consent is pending, yet in cases where there is
no mutual consent of parties, there is nothing that bars the Court to dissolve
a marriage on the ground of irretrievable breakdown of marriage in exercise of
powers under Article 142.
Sixthly, the Court cited the case of Hitesh
Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, to explain that “courts
can dissolve a marriage as irretrievably broken down only when it is impossible
to save the marriage, all efforts have been made in that regard, the Court is
convinced beyond any doubt that there is actually no chance of the marriage
surviving, and it is broken beyond repair.”
Seventhly, the noted that “marriage is a tie
between two parties. If this tie is not working under any circumstances, we see
no purpose in postponing the inevitability of the situation merely because of
the pendency of the reference.”
And lastly, the Court pointed out that filing
multiple and repeated cases in courts against the spouse amounts to mental
cruelty even if such cases are filed after instituting the Divorce Petition
before the Family Court. Further, such conduct “shows disintegration of
marital unity and thus disintegration of the marriage.” In such cases,
the Supreme Court has the power under Article 142 to grant a decree of divorce
not only on account of irretrievable breakdown of marriage but also on the
ground of cruelty enshrined under Section 13 (1) (i-a) of the Hindu Marriage
Act, 1955.
Those were the observations by the Court. So, what
are my concluding remarks?
CONCLUDING REMARKS
Irretrievable breakdown of marriage is indeed a
real thing, and it is quite unfortunate that such an important ground has not
yet been codified in our matrimonial laws. It is high time that the legislature
takes cognizance of this fact and include the same in our laws. It would save a
lot of heartburning of the parties as well as their time and money.
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