Separate lives

Is the Supreme Court’s recent decision to grant a divorce based on an irretrievable breakdown of marriage a transformative move or a chaotic one? Tanisha Saxena breaks it down

With each passing day, our sense of family structure is transforming. With urbanisation and socio-economic development, the structure is being disintegrated. Divorce has always been the last resort in Indian society but sometimes marriages reach a point where they can’t be fixed, and the couple decides to file for a divorce. This leads to an irretrievable breakdown of the marriage.

According to the Hindu Marriage Act, spouses have the right to approach the court for the dissolution of Hindu marriage by granting a decree of divorce on the grounds mentioned in Section 13. However, in the recent past, the provisions of the Hindu Marriage Act have undergone considerable changes. There are of course several factors that played a major role in the shift. But what’s crucial is what impact did it all create?

Rules apply

Advocate Subha Rajeswari believes, “Under Section 13 of the Hindu Marriage Act, there are certain specific conditions to be satisfied against the Respondent by the Petitioner whether it is the wife or husband to establish either the ground of cruelty, desertion, insanity, conversion to another religion, incurable leprosy and other diseases. It is mandatory that the application has to be filed before the District Court or Family Courts or any other courts designated by the high court to deal with matters pertaining to matrimonial issues. However, the Hindu Marriage Act does not specify that the marriage can be dissolved on the ground of irretrievable breakdown.”

As such, the trial court and even the high court in appeal are not entitled to pass the divorce on such grounds. But under Article 142 of the Constitution of India, the Supreme Court, in order to do complete justice, can pass such an order and dissolve the marriage even when one of the parties opposes such a dissolution of marriage on that ground. Subha points out:

 The recent five-bench constitutional judgement rendered in Shilpa Sailesh versus Varun Sreenivasan has stated that the Supreme Court of India has the power to dissolve a marriage on the ground that it had broken down irretrievably.

 The parties cannot directly approach the Supreme Court by invoking Article 32 and by approaching high courts under Article 226.

 A Constitution Bench of the Supreme Court has held that it can invoke the special powers under Article 142 of the Constitution of India to waive the waiting period of 6 to 8 months prescribed for seeking divorce through mutual consent.

With power comes
great responsibility

The judgement only dealt with the power of the Supreme Court to pass an order by invoking Article 142 of the Constitution of India in the rarest of rare cases and the exigencies of circumstances but it did not permit the parties to directly approach the Supreme Court of India and dissolve the marriage on the ground of irretrievable breakdown.

In our society, divorce procedures take a toll on the mental health of the spouses. Marriages are made in heaven — this is a narrative we have grown up with.

Grant of divorce on the ground of irretrievable breakdown of marriage is far more complex and depends on several factors. It does not mean people can rush straight to the Supreme Court and get a divorce as fast as possible. There will be factors such as the duration of the marriage, the period of litigation, the time they have stayed apart, the number of attempts at reconciliation and several others. Subsequently, the court should be satisfied that the decision to divorce was not a forceful step. While on the ground, things remain the same, it is merely a step that looks at the power dynamics of the apex court in divorce cases.

Dr Sujatha Rajamani, consultant psychiatrist, KIMS Hospitals, Hyderabad, explains, “In the present day, couples live very complex lives. The breakdown of joint families, equal career opportunities, independent goals, financial independence, family pressures, societal obligations, children’s education etc., have led to marriages getting stressful. Couples are unable to take time out and sort out their differences. They realise it late and often find differences difficult to resolve even with counselling. The legal process should be fast-tracked for the couple to go through the complete proceedings with the least trauma.”

Mental health therapist, Arouba Kabir shares, “The Supreme Court has recognised that irretrievable breakdown of marriage is a valid reason for divorce. This means that people have the right to end their marriage if they feel there is no chance of fixing the problems. This decision shows that our understanding of marriage is changing, and individuals have the right to make choices that make them happy. When these cases go to the Supreme Court, they can have an impact on society. Despite the positive strides made by the court that may empower women, the trauma and emotional toll associated with the dissolution of marriage remain. The mere fact that these cases reach the apex court can reflect the complexity and gravity of the situations involved, which can have a lasting effect on individuals and families.”

These cases also challenge the idea that marriage is always forever and encourage us to understand that relationships can sometimes end.

This understanding helps us approach relationships with more empathy. Along with the legal process, it’s important to provide counselling, mediation, and support networks to help them through the emotional challenges. Society’s response to these cases should prioritise compassion, empathy, and a commitment to safeguarding the best interests of all parties involved.