SC’s ruling on divorce should spark a debate - Hindustan Times
close_game
close_game

SC’s ruling on divorce should spark a debate

ByGeeta Ramaseshan
May 05, 2023 07:00 PM IST

The guidelines laid by the court should be an indicator to start the discussion on introducing the concept of irretrievable breakdown as a ground for divorce

Matrimonial litigations in India are highly contentious with acrimony being compounded by both procedural and substantive laws. Divorce is based on “fault finding”, where a spouse has to prove a wrong such as cruelty, adultery, desertion or mental illness. This requires collecting evidence and facing a trial where spouses are examined and cross-examined about the minutest details of their lives. It often results in colouring facts, and any good aspects of the relationship are obscured in the pleadings, on the grounds that it may be considered by the court as having condoned the act. Condonation can result in the case being dismissed under the law.

Most countries that have irretrievable breakdown (or “no fault”) as a ground for divorce, also invoke other safeguards, but even in such systems, there are criticisms that a party at fault manages to move the court and the judge does not have any power of inspecting the conduct of the spouses. But the process does remove acrimony. (HT PHOTO) PREMIUM
Most countries that have irretrievable breakdown (or “no fault”) as a ground for divorce, also invoke other safeguards, but even in such systems, there are criticisms that a party at fault manages to move the court and the judge does not have any power of inspecting the conduct of the spouses. But the process does remove acrimony. (HT PHOTO)

Added to this are the multiple forums where cases have to be filed. If it is a case for divorce, custody or maintenance, it is in the family court, while a case for domestic violence has to be filed in the magistrate’s court. If the proceedings have to be filed in a district where there are no family courts, Hindus file them in a sub-court, while Christians are required to file before the district court. Multiple proceedings result in parties having to often run to different courts for their cases, and most proceedings require their personal appearance. This often results in loss of pay and sometimes employment, and it is daunting and fatiguing for all. If one is lucky, a trial can get over in two years, but there are cases that have gone on for 10 years. Even then, it does not end but goes up on appeal.

In 2011, a bill was introduced in Parliament to introduce the concept of “irretrievable breakdown” as a ground for divorce. Women’s groups expressed concerns about introducing this concept without following it up with legislation on the division of matrimonial property. It was rightly pointed out that just having this as a ground without backing it up with other rights would cause serious harm. Men could drive women out of the home and approach the courts for a divorce on this ground and not care about any other rights that would safeguard women. In the face of the uproar, the bill was referred to a select committee, and it subsequently lapsed.

Most countries that have irretrievable breakdown (or “no fault”) as a ground for divorce, also invoke other safeguards, but even in such systems, there are criticisms that a party at fault manages to move the court and the judge does not have any power of inspecting the conduct of the spouses. But the process does remove acrimony.

The recent verdict of the Supreme Court (SC) has considered this factual situation and has introduced the ground of irretrievable breakdown, with only the apex court having the power to dissolve the marriage. Before this, there were divergent views in earlier judgments on this subject. Some judgments held that the SC under Article 142 can do complete justice, while other orders had taken a contrarian view. The Constitution bench has now settled this issue.

The court has laid down certain parameters in this regard. Seeking a divorce on this ground is not a matter of right but a discretion that the court will exercise with care and caution. The court has to consider whether the marriage is “totally unworkable, emotionally dead and beyond salvation.” To determine this, several factors are to be taken note of, such as: The period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by theintervention of the court or through mediation, and when the last attempt was made. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. Thus, divorce is not for the asking, as in some other countries, but has to be carefully granted by the judges and would vary from case to case.

The court is also required to consider the economic and social status of the parties, including their educational qualifications, children and their age and educational qualification, the dependency of the spouse and the children and the obligation of the spouse seeking divorce to take care and provide for them. The question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations. These are not exhaustive.

The power of dissolving a marriage on this ground only rests with the SC. And not all parties can approach the apex court. The guidelines laid by the court should, therefore, be an indicator to start the discussion on introducing the concept of irretrievable breakdown as a ground for divorce in our marriage laws.

Geeta Ramaseshan is a senior lawyer practising at the Madras high court The views expressed are personal

Unveiling 'Elections 2024: The Big Picture', a fresh segment in HT's talk show 'The Interview with Kumkum Chadha', where leaders across the political spectrum discuss the upcoming general elections. Watch Now!

Continue reading with HT Premium Subscription

Daily E Paper I Premium Articles I Brunch E Magazine I Daily Infographics
freemium
SHARE THIS ARTICLE ON
Share this article
SHARE
Story Saved
Live Score
OPEN APP
Saved Articles
Following
My Reads
Sign out
New Delhi 0C
Thursday, March 28, 2024
Start 14 Days Free Trial Subscribe Now
Follow Us On