Family Law – Divorce – Irretrievable Breakdown of Marriage
Highlights of the Blog
- Marriage is the fundamental of a family structure creating a basic social unit.
- ‘Conjugal rights’ arise due to the institutions of marriage, which means such sexual rights or privileges that evolve through the marriage.
- Divorce rates are increasing due to lack of tolerance, male dominance, the unequal status of women/wife, domestic violence, etc.
- Domestic violence is an abusive continuous behavioral pattern by one partner over another in a marital or intimate relationship.
We may define marriage as social and religious ties between a man and a woman, known as husband and wife. Are matters relating to families and family life, a matter of concern for law? Yes. Certain areas like Solemnization & Validity of the marriage, Divorce, Maintenance, Child Custody, guardianship, Adoption, Marital Property, Prenuptial and Postnuptial Agreements, etc. are governed by law.
Divorce is the final termination of a marital relationship making the legal duties null and void. Divorce laws vary around the globe, however in India, with Hindus, marriage was thought-out as a sacrament and not considered to be disintegrated.However, the Hindu Marriage Act now recognizes the divorce. If only one of the parties to the marriage wants to dissolve the marriage, the decree has to be obtained by way of contested judicial proceedings. However, if both parties are willing to divorce, divorce happens by mutual consent.
In case Shilpa Sailesh vs Varun Sreenivasan, both the parties went to Hon’ble Supreme Court to seek divorce by mutual consent under Section 13(b) of Hindu Marriage Act,1955 on the ground that their marriage is broken down irretrievably.
Article 142 of Constitution of India
The said Article deals with the Supreme Court’s power to exercise its authority to pass an order for doing complete justice to any matter pending before the court.It gives apex courts extraordinary powers to pass a decree for those people who are suffering from injustice and traversed illegality in the course of legal proceedings.
Article 142[1] states that “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice, and decree so passed shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by parliament,and until provision in that behalf is so made,in such manner as the President may by order prescribe”.
To get through divorce proceedings, there is a time limit of 6 to 18 months to get aided with final divorce.The time period is ‘cooling off’ period,this period is given so that couples might change their mind and their marriage can be saved. Irretrievable breakdown of marriage being non-statutory is no ground prescribed for the divorce.
Section 13[b] of Hindu Marriage Act,1955
Divorce by mutual consent –
A petition for dissolution of marriage by a decree of divorce may be filed by both the parties in the court on the ground that both of them have not been living together for a year or more and both of them decided mutually to dissolve the marriage.
After filing the petition they are given 6 to 18 months to change their mind and withdraw the petition. If the petition is not withdrawn the parties are granted with a decree of divorce.
So,in the Supreme Court’s authority; whether it , in its juridical power, can grant the divorce on the ground of irretrievable breakdown of marriage or not. According to Article 142(1) of the Constitution of India, it can grant an order of divorce, even if one spouse opposes the divorce.
Author: Deepika Jain, a Student of BM Law College
