By: Saachi Singh, Symbiosis Law School, Hyderabad
Abstract
The institution of marriage holds significant importance in Hindu society, often considered a sacrament with indissoluble and eternal bonds. However, historical interpretations of Hindu law have led to inherent injustices, particularly disadvantaging wives. To address these inequalities and uphold the sanctity of marriage, the Hindu Marriage Act of 1955 was enacted, providing remedies for marital disputes. Marriage is the cornerstone of family and societal structure, essential for civilisation. The Act strictly enforces monogamy, allowing dissolution only through specified grounds outlined in Section 13. Before the divorce, neither spouse can enter a second marriage.
This emphasis on monogamy contrasts with traditional interpretations of Muslim law, which permit multiple marriages with conditions of justice between wives. Hindu law traditionally viewed marriage as a sacrament, not readily dissolved except through recognised customs or legal grounds.
Despite the sacramental nature of marriage, Hindu law acknowledges the validity of customs in dissolution, demonstrating an inverse relationship between legal statutes and recognised customs. Overall, the Hindu Marriage Act seeks to balance societal interests, moral values, and individual rights within Hindu society’s framework of marriage and divorce.
Analysis
In India, the evolution of divorce law reflects a shift from the belief in the sanctity of marriage to recognising individual autonomy and protection, particularly for women. Historically, marriages were considered unbreakable bonds, but social reformers started advocating for women’s rights trapped in unhappy or abusive unions. Despite resistance from the British Government, the Hindu Marriage Act of 1955 was passed to address marital issues. Section 13 of this act outlines the grounds for divorce, allowing individuals to dissolve their marriages under specific conditions legally.
The case of N.G. Dastane versus S. Dastane, which was decided in 1975, established important precedents in divorce law in India. It focused particularly on the interpretation of ‘cruelty’ as a ground for dissolution of marriage under the Hindu Marriage Act. The court emphasized that if the fact of cruelty is proven by a preponderance of probabilities, it is considered established. This means that the court believes it to exist or considers its existence probable. The court also clarified that proceedings under the Hindu Marriage Act are civil in nature. Therefore, the satisfaction of the court must be based on a preponderance of probabilities, not beyond a reasonable doubt.
The court further elaborated on the meaning of ‘cruelty’, stating that it encompasses wilful and unjustified conduct causing danger to life, limb, or health, or giving rise to a reasonable apprehension of such danger. However, the court noted that mere impossibility for the spouses to live together, without any harm or injury to health, may not constitute cruelty. Instead, harm or injury to health, reputation, career, or similar factors should be considered in determining cruelty.In V. Bhagat v. D. Bhagat, pronounced in 1993, the court expanded the definition of cruelty to include both mental and physical aspects. It emphasized that cruelty must be such that it causes injury to health or an apprehension of it, taking into account the temperament and specific circumstances of the spouses. The court also recognized that cruelty may be unintentional and subjective, depending on individual backgrounds and circumstances.
In addition, the court in Ashok Hurra v. Rupa Bipin Zaveri, which was decided in 1997, used its power under Article 142 of the Constitution to grant a divorce decree. The court recognized that prolonging the agony of the parties or their marriage would not serve any useful purpose. This case highlighted the court’s authority to intervene in divorce matters to achieve justice and prevent further misery for the parties involved.
Lastly, in the 2006 case of Naveen Kohli v. Neelu Kohli, the court emphasized that although irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, it should be considered when serious attempts at reconciliation have failed and separation is inevitable. The court acknowledged the changing social concepts and standards of living, emphasizing that continued bitterness and misery in a broken marriage serve no public interest. Therefore, the court granted divorce, acknowledging the pragmatic reality of the situation and directing maintenance to the wife. These cases underscore the evolving interpretation of ‘cruelty’ and the court’s role in divorce proceedings in India. They emphasize the need to consider individual circumstances and promote justice and fairness in marital disputes.
In conclusion, divorce represents the legal separation of individuals who no longer wish to stay together. However, it is important to note that the courts play a crucial role in ensuring that justice and fairness prevail in the process. remain bound in marriage, allowing them to pursue personal growth and fulfilment. This legal framework mirrors a broader societal recognition of the importance of individual happiness and the right to escape harmful or untenable relationships.
However, the case of Naveen Kohli v. Neelu Kohli highlighted the complex issues surrounding marital dissolution in India. The Supreme Court recognised that irretrievably broken marriages should be allowed to end for the well-being of all parties involved. This concept has faced criticism, mainly from the High Courts and the Government of India.
High Courts have expressed reservations about introducing irretrievable breakdown as a ground for divorce, citing the difficulty in determining whether a marriage is genuinely beyond repair. They argue that rifts between spouses, while significant, may not necessarily signify the end of a marriage. Nevertheless, they acknowledge that prolonged marital discord cannot be allowed to persist indefinitely. Similarly, the Government of India has questioned the necessity of introducing irretrievable breakdown as a divorce ground, citing existing provisions in the Hindu Marriage Act and the Marriage Laws Amendment Act, 1976, which cover situations of irretrievable breakdown.
Despite criticisms, there is a growing recognition of the need for a legal framework that acknowledges irretrievable breakdown as a valid reason for divorce. Marriage is a fundamental institution, but dissolution may be the best option for both parties when it becomes a continuous source of misery. The shift from guilt-based divorce to mutual consent reflects an evolving understanding. In cases where reconciliation is impossible and mutual consent is not feasible, recognising irretrievable breakdown allows spouses to move on with their lives rather than being trapped in futile legal battles. Embracing the irretrievable breakdown theory can facilitate the common betterment of both spouses and promote the pursuit of new and fulfilling lives beyond the confines of a broken marriage.
The Shilpa Sailesh v Varun Sreenivasan case marked a watershed moment in India’s evolution of divorce law. In a unanimous judgment, the Constitution Bench of the Supreme Court asserted the court’s jurisdiction to grant divorce on the grounds of ‘irretrievable breakdown of marriage’ under Article 142 of the Constitution.
The Bench elucidated that Article 142 confers the authority to ensure justice, equity, and good conscience upon the Supreme Court, enabling it to transcend procedural and substantive legal constraints to deliver complete justice in any cause or matter. However, the Bench underscored the importance of exercising this power judiciously while safeguarding fundamental principles enshrined in the Constitution.
At the heart of the judgment lay the interpretation of the procedure for divorce outlined in Section 13B of the Hindu Marriage Act, 1955, which mandates a cooling-off period of 6-18 months for divorce by mutual consent. The Bench pronounced that these procedural stipulations do not bind the Supreme Court and can grant divorce under Article 142, notwithstanding opposition from one party. Moreover, the Court has the prerogative to waive the cooling-off period if it deems the marriage irretrievably broken down.
In adjudicating irretrievable breakdown, the Court suggested considering various factors such as the duration of cohabitation post-marriage, the last instance of cohabitation, the nature of allegations exchanged between spouses, efforts made to reconcile disputes and a significant period of separation. This pragmatic approach seeks to balance procedural safeguards and the recognition that certain marriages are irrevocably fractured, warranting prompt dissolution.
The judgment reaffirms the Supreme Court’s competence to grant divorce in pursuing justice, even when statutory requirements are not strictly met. However, such decisions must align with foundational constitutional principles and be exercised responsibly. By articulating a nuanced approach to irretrievable breakdown, the Court signals its commitment to evolving divorce law in India better to serve the interests of justice and individual autonomy.
Some factors to be considered before determining whether a marriage is irretrievably broken down are:
- Duration of cohabitation after marriage
- Last time the parties cohabited
- Nature of allegations made by the parties against each other
- Attempts to settle disputes between the parties
- A sufficiently long period of separation
In conclusion, the evolution of divorce law in India reflects a significant shift from the traditional belief in the sanctity of marriage towards recognizing individual autonomy and protection, particularly for women. Over time, societal changes and the recognition of individual rights have led to the acknowledgment that some marriages are irretrievably broken and must be dissolved for the well-being of all parties involved.
Key legal cases, such as N.G. Dastane v. S. Dastane and Naveen Kohli v. Neelu Kohli, have played pivotal roles in shaping divorce law in India. These cases have highlighted the interpretation of ‘cruelty’ as a ground for divorce and emphasized the court’s authority to grant divorce in cases of irretrievable breakdown of marriage.
The recent landmark judgment in Shilpa Sailesh v. Varun Sreenivasan further underscores the Supreme Court’s commitment to evolving divorce law to better serve the interests of justice and individual autonomy. By affirming the court’s jurisdiction to grant divorce on the grounds of irretrievable breakdown under Article 142 of the Constitution, the judgment reflects a nuanced understanding of the complexities surrounding marital dissolution.
In light of these developments, it is essential to recognize the need for a legal framework that acknowledges irretrievable breakdown as a valid reason for divorce. While marriage is a fundamental institution, dissolution may sometimes be the best option for both parties when it becomes a continuous source of misery. Embracing the irretrievable breakdown theory allows spouses to move on with their lives and pursue new and fulfilling paths beyond the confines of a broken marriage.
Overall, the evolution of divorce law in India reflects a broader societal recognition of individual rights and the importance of promoting justice and fairness in marital disputes. As the legal landscape continues to evolve, it is crucial to ensure that the rights and well-being of all parties involved are safeguarded, ultimately fostering a more equitable and just society.
