Author :Sagar Mazumdar, a student of Rabindra Shiksha Sammillani Law College, University of Calcutta
To The Point
It has been more than one year since the passing of the landmark judgement by the Hon’ble Supreme Court of India. This judgement is unique in its own way. Through this 61-paged judgement, the Court not only decided one, or two but three issues of public importance. This article is not about pointing out the effects of the judgement or getting into the merits or demerits but this article is about describing the judgement in simpler words. It is an attempt in discussing the important topics the Court emphasized on in determining the various issues. This article is not about ‘how’ is the judgement but ‘what’ is the judgement. Everything is explained in simple terms in a sequential manner.
The issues that the Court had to face are as following:
- Scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India.
- Exercise of Article 142(1) to dispense off with the cooling-off period under Hindu Marriage Act, 1955 and quashing of any other connected proceeding under any statute.
- Exercise of Article 142(1) to grant divorce on the ground of irretrievable breakdown of marriage.
Legal Jargon
Before digging deeper into the topic, the issues which revolves around the provisions or concept of law are to be understood in a simpler form.
- What is Article 142(1) of the Constitution of India?
The Constitution of India has empowered the Supreme Court under Section 142(1) in exercise of its jurisdiction that it may pass such orders or decrees as necessary to do complete justice to a cause or matters pending before it. All such orders or decrees shall be enforceable throughout the territory of India as prescribed by or under any law made by the Parliament of India. In case of absence of any such law, the President may prescribe by any order on that behalf.
In Academy of Nutrition Improvement vs. Union of India, it was held that Article 142 has vested upon the Courts unfettered independent jurisdiction to do complete justice and when it is not contrary to the express provision of law.
- What is Divorce by Mutual Consent under Hindu Marriage Act, 1955?
Divorce by mutual consent is incorporated under Section 13-B of the Hindu Marriage Act, 1955. The first motion required the parties to present a petition for divorce together after staying apart from each other for a period of one year or more. After six months and not more than eighteen months, the party may present another petition. The Court being satisfied after inquiring may grant a decree of divorce.
- Concept of Irretrievable Breakdown of Marriage
It is a phenomenon where the marriage is considered to be a complete breakdown. No sign of reunion can be traced. This may happen due to a lot of reasons, like mental cruelty which the parties have gone through or maybe the aversions made against each other during the litigation rounds. It is often cited as one of the grounds for divorce. This is in addition to the already existing fault theory. In Naveen Kohli vs. Neelu Kohli, the Apex Court has recommended for an amendment in the Hindu Marriage Act, 1955 and incorporate irretrievable breakdown of marriage as a ground. Even the 71st as well as the 217th Law Commission Report has recommended the incorporation of Irretrievable Breakdown of Marriage.
Proof
- Scope and Ambit of Article 142 of the Constitution of India
Silences of the Positive Law: The term positive law in jurisprudential sense means a law which is enacted by the authority. It is but obvious that the authorities enact laws on the basis of the issues it faces. It will be a misnomer to state all the upcoming situations to be covered under a statute. Thus, there may be situations where the law really has no answer and that is the situation when Article 142 acts as a remedy. The purpose of Article 142 is to find a just solution in case where the law is silent.
Equitable Power: Professor C.K. Allen in his book, Law in the Making, has classified equity in two forms: (a) liberal and human interpretation called equity in general and (b) liberal and human modification of law called particular equity. Article 142 is based on the second classification which gives precedence to equity over law. This principle should be used with caution. The Court while invoking Article 142(1) should not ignore the mandate of the express statutory provision. In I. C. Golak Nath and Others vs. State of Punjab and Another, it was held that Article 142 of the Constitution of India enables the Court in formulating new doctrines. The only limitation shall be restraint, reason and injustice. The Constitution bestowing the power only to the Apex Court is with a purpose and will definitely not encroach the powers of legislature.
Meaning of Cause and Matter: In Union Carbide Corporation and Others vs. Union of India and Others, it was held that the expression cause means any criminal proceeding or action and the expression matters means any proceeding in the Court which is not a cause. If together read, it may cover all types of proceedings a Court may deal with. The power under Article 142(1) is of a different level and quality. It further held that prohibitions or limitations contained in any ordinary law cannot prohibit or limit the power of Article 142. This would mean that ordinary statutes override constitutional provisions which will not be a correct notion. It is also stated that the Court has to determine whether the prohibition under the statute is of general public importance or not and has to accordingly use the power to do what constitutes complete justice in the matter.
General and Specific Public Policy: It is to be noted that the power under Article 142(1) is usually unhindered except on the principle that it affects the specific or general public policy. Specific policy refers to any condition that must be adhered to above all other existing conditions due to its paramount importance. General public policy refers to the basic structure of the Constitution of India. It must be maintained by the Court while exercising its power under Article 142(1) that it does not affect the provision of a substantive statute which has expressly prohibited something and that statute is of public importance. It may dispense off from the procedure when the Court is satisfied that it is necessary to do complete justice by departing from the procedure.
Court is a Curator: The Court being a curator and a problem solver should not build a structure on its own when the substantive statute has a different say but it can use its power only when the substantive statute has no answer to a particular issue. The Constitution bestowing this power to the Supreme Court Is of importance because of its mindful utilization by the Court.
- Hindu Marriage Act and Article 142(1)
Reason Behind the Cooling-Off Period: The Legislative intent behind invoking the 6 months cooling-off period after presentation of the petition for divorce is if in case there is any change of mind between the parties. Because a lot of time people out of sheer anger, parties take drastic steps of separation. But according to Hindu Law, marriage being sacramental, the approach should always be to settle the issues among the spouses and not let them part away.
Exceptional Cases: But it has been observed by the Court, that there have been instances when both the parties already involved in years of litigation have finally decided to settle the matters by mutual consent. Having speared venomous aversions against each other and sometimes also against their families, divorce is inevitable. For those cases, another 6 months of waiting is nothing but a prolonged drama of agony, hatred and suffering. It is for them, who wants to start afresh, that this waiver comes as a rescue. It is therefore in public interest, that waiver of the 6 months gap is justified. In general terms, the 6 months cooling-off period is to prevent hasty divorces.
Guided Discretion: While deciding the questions in Amardeep Singh v. Harveen Kaur, the Court looked on whether the cooling off period was mandatory or directory. It was held that 6 months period can be waived off. Many High Courts of Judicature including Andhra Pradesh, Karnataka and Delhi supported the decision. But the Kerala High Court in M. Krishna Preetha v. Jayan Moorkkanatt, decided that Section 13-B (1) was a matter of jurisdiction of the Courts. The petition was maintainable only if it adhered to the conditions under Section 13-B (1). Section 13-B (2) was procedural. It was held that the discretion to waive off was a guided discretion and is depended on the factors of the interest of justice and the parties’ resolution that the marriage is irreconcilable and the parties were already separated for a longer year or contesting for a year longer than Section 13-B (2).
It was also held that the Court should consider the following points:
- Statutory periods of one year or more and the additional statutory period of minimum 6 months in Section 13.
- Any effort by the Court to reunite the family but it was unsuccessful.
- The parties have genuinely settled their issues regarding alimony, maintenance and child custody or any other.
- The not giving divorce would rather increase the agony.
Marriage is Shattered Beyond Repair: The purpose of the cooling-off period is to enable the parties to introspect and analyze before taking any decision. But this does not mean that the objective of the Cooling-off period is to stretch a relationship which is already disintegrated and it being tied into a bond will only increase misery. If the Court is satisfied after making efforts to salvage the marriage that there is no possibility of cohabitation, then the grant of waiver is the only better option available. The waiver should not be given when asked but to the Court’s satisfaction.
Article 142 Aids and Assists the Court of Justice: The Supreme Court under Article 142(1) of the Constitution of India can pass judgements in order to do complete justice to any cause or matter. The issue of lack of subject-matter jurisdiction does not arise. Supreme Court is entitled to pass any decree, judgement or order just like any other court in the Country. It shall be executable all over the territory. This will in turn save the time and money of the parties who are in constant litigation. This will also provide relief to the Courts which are already overburdened.
Public Policy to Encourage Mutual Settlements in Matters Related to Family and Matrimony: The purpose of public policy is to encourage the settlements between the parties. The already suffering parties in their young age by being engaged to constant litigation has never been the objective of the public policy. Therefore, the Court held that the under Section 482 of Cr.P.C, the Court has wide power and can quash proceedings under Section 498A of I.P.C even if it has not been permitted under Section 320 of Cr.P.C. This view has also been accepted Gian Singh vs. State of Punjab & Another.
- Irretrievable Breakdown of Marriage and Article 142(1)
Definition of Cruelty: An expanded meaning has been given to the term cruelty under Section 13(1)(ia). Though defining it comprehensively will be a difficult task. Cruelty includes both physical as well as mental. It depends on several factors such as knowledge or intention of the defending spouse, nature of their conduct, and so on. Cruelty must be assessed on the specific circumstances of each case as marital obligations differ from household to household. Cruelty can be both intentional or unintentional. What may be cruelty according to one person may not be cruelty according to other person, Therefore, cruelty is to be assessed on the specific facts and circumstances of each case.
Shortcomings of Fault Theory: The fault theory which is based on accusatorial principle of divorce needs one party to allege something against the other. Guilt has to be proved in order to grant divorce. There has to be some sort of blame and fault. The Court has to find out whether the parties lacked any heroic virtue or not. Sometimes it becomes difficult for the Court to ascertain blame. The Supreme Court of United Kingdom, while determining Owens vs Owens, held that even two extremely gentle people can have incompatibility with each other. It is not possible that in every case there shall be some fault or misconduct which shall be the ground for divorce. It is in those rare exceptional cases where irretrievable breakdown of marriage can be a proper ground for divorce.
How Irretrievable can be Ascertained: When a marriage is totally unworkable that is it is beyond the stage of salvation, it can be held to be irretrievably broken down. There are certain factors which is to be considered while ascertaining the question whether a marriage is irretrievably broken down or not. Some of which are when was the last time the parties cohabitated, the period of their cohabitation, the nature of the allegations, if any attempt was made by the court to reconcile the marriage, whether the parties have any children, custody of children, alimony, the mental impact on the parties, and so on.
Exercise of Article 142(1) to Dissolve Marriage under the Ground of Irretrievable Breakdown in Earlier Cases: Even though Irretrievable breakdown of marriage is not incorporated as a ground for divorce. There have been many instances when the Court has invoked the power under Article 142(1) to dissolve a marriage under the ground of irretrievable breakdown of marriage. In Munish Kakkar vs. Nidhi Kakkar and R. Srinivas Kumar vs. R. Shametha, the court has passed a decree for divorce under Article 142 of the Constitution of India.
There has also been instance where the Court has refused to grant divorce under the ground of irretrievable breakdown of marriage. One of them is in Shyam Sundar Kohli vs. Sushma Kohli alias Satya Devi, where the Court refused to grant divorce but also observed that it can be granted only under extreme circumstances. In Neelam Kumar vs. Dayarani, divorce was not granted on the view that there was nothing which indicated that the respondent was to be blamed for the irretrievable breakdown of marriage.
Writ Petition under Article 32 for Seeking Divorce: Referring to the judgement in Poonam vs. Sumit Tanwar, the Court held that no person can file a Writ Petition under Article 32 of the Constitution of India and seek divorce on the ground of irretrievable breakdown of marriage. The reason being, firstly, one person should approach the tribunal or the Court assigned for this purpose and secondly, Article 32 is invoked for relief in case of infringement of Fundamental Rights Part III of the Constitution of India and it is not maintainable for correcting judicial orders passed by any Court.
Abstract
- Scope and Ambit of Article 142 of the Constitution of India
The Court held that it can depart from the procedural as well as substantive laws on the ground that the decision is in exercise of public policy. But while exercising its discretionary power, the Court must not ignore the power the substantive law. It must act as a curator and balance the conflicting claims.
- Hindu Marriage Act and Article 142(1)
The Court held that while exercising its power under Article 142(1) it can waive off the cooling period as it is merely a procedure and can also quash any connected proceedings. This power needs to be used with great care and caution.
- Irretrievable Breakdown of Marriage and Article 142(1)
When the Court is satisfied that the marriage has totally failed and shattered and is beyond repair, in those cases the Court can exercise its power under Article 142(1) in granting a decree of divorce to do complete justice on the ground of irretrievable breakdown of marriage. It has also stated that Article 32 cannot be invoked in order to take a decree of divorce.
Case Law
In Prakashchandra Joshi vs. Kuntal Prakashchandra Joshi @ Kuntal Visanji Shah, the Court following the judgement passed in Shilpa Sailesh Case by exercising Article 142(1) has granted divorce on the ground of irretrievable breakdown of marriage to do complete justice.
In Dr. Nirmal Singh Panesar vs. Mrs. Paramjit Singh Panesar @ Ajinder Singh Panesar, the Court did not grant divorce on the ground of irretrievable breakdown of marriage as marriage is considered pious and a spiritual bonding in the Indian society.
Conclusion
As we come to the conclusion, we may find that the Court in total decided five issues which were clubbed in three core issues. This judgement has been affirmed in many cases and has been a guide to providing relief to many issues arising in the field of matrimony.
FAQs
- What is the power and scope of Article 142(1)?
- Can the Court grant divorce even if one of the spouses is opposing it?
- Can a Writ Petition be issued under Article 32 for the purpose of decree of divorce?
References
- In Academy of Nutrition Improvement vs. Union of India Writ Petition (C) No. 80 Of 2006
- Naveen Kohli vs. Neelu Kohli Appeal (Civil) 812 of 2004
- C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927)
- I. C. Golak Nath and Others vs. State of Punjab and Another AIR 1967 SC 1643
- Union Carbide Corporation and Others vs. Union of India and Others 19 (1991) 4 SCC 584.
- in Amardeep Singh v. Harveen Kaur 32 (2017) 8 SCC 746.
- M. Krishna Preetha v. Jayan Moorkkanatt Mat. Appeal No. 633 of 2008(A)
- Owens vs Owens 47 (2018) UKSC 41
- Munish Kakkar vs. Nidhi Kakkar (2020) 14 SCC 657
- R. Srinivas Kumar vs. R. Shametha 52 (2019) 9 SCC 409
- Shyam Sundar Kohli vs. Sushma Kohli alias Satya Devi (2004) 7 SCC 747
- Neelam Kumar vs. Dayarani (2010) 13 SCC 298
- Poonam vs. Sumit Tanwar (2010) 4 SCC 460
- Prakashchandra Joshi vs. Kuntal Prakashchandra Joshi @ Kuntal Visanji Shah (Civil Appeal No. 934 of 2024)
- Dr. Nirmal Singh Panesar vs. Mrs. Paramjit Singh Panesar @ Ajinder Singh Panesar Civil Appeal No. 2045 of 2011
- V. Bhagat v. D. Bhagat 43 (1994) 1 SCC 337
- 71st Report by Law Commission of India
- 217th Report by Law Commission of India
- Hindu Marriage Act, 1955
- Constitution of India
