DIVORCE BASED ON IRRETRIEVABLE BREAKDOWN – POLITY
News: A
good divorce
What's in the news?
● The
Supreme Court in Shilpa Sailesh vs Varun
Sreenivasan case held that a court can directly grant a divorce under
Article 142 of the Constitution in cases where the marriage has irretrievably
broken down.
Status of Divorce Couples in India:
● In
India, divorcees have doubled in number over the past two decades. But the incidence of divorce is still at 1.1%,
with those in urban areas making up the largest proportion.
● According
to Census 2011, the population which is “separated” is almost triple the
divorced number. There are many women, particularly among the poor, who are
abandoned or deserted.
Recent SC Ruling:
● The
Constitution Bench of the Supreme Court held that a court can directly grant
divorce under Article 142 of the
Constitution in cases where the marriage has irretrievably broken down.
● This
can be done without referring the parties to a family court first, where they
must wait for 6-18 months for a decree of divorce by mutual consent.
● The
Supreme Court has said that it could also use powers under Article 142 of the
constitution to grant divorce on the
ground of “irretrievable breakdown
of marriage” if the “separation is inevitable and the damage is
irreparable”.
● However,
the court cautioned that grant of divorce by the Supreme Court on the ground of
irretrievable breakdown of marriage was not a matter of right, but a discretion
which is to be exercised with great care and caution.
● Several
factors would be considered by the Supreme Court before invoking Article 142 in
matrimonial cases.
● These
include the duration of the marriage, period of litigation, the time they have
stayed apart, the nature of the pending cases between the couples, the number
of attempts at reconciliation and the court’s satisfaction that the mutual
agreement to divorce was not under coercion.
Procedure for Getting Divorce:
The
Hindu Marriage Act 1955 (HMA) lays
down the procedure to obtain a divorce by mutual consent.
1. For fault-based cases:
● Under
Section 13 of the Hindu Marriage Act, a marriage may be dissolved on grounds of adultery, cruelty, desertion,
bigamy, rape, etc. These are often called fault-based cases. In these, a
divorce petition can be moved by either party without the consent of the other.
2. For No-fault divorce:
● This
could be sought only by mutual consent under Section 13-B. In such cases, the
parties would ordinarily file a motion for divorce, and then have to wait six months before the decree could be
passed by court.
● The
intent was to give a ‘cooling-off period’ and allow the couple time for
reflection.
○ Consensual
divorce is a type of divorce that is based on the mutual agreement of both
spouses to end their marriage legally and peacefully.
○ It
is the shortest, least expensive and least harmful way of a divorce, as it
avoids prolonged litigation, bitter disputes and emotional trauma.
○ It
also benefits the children of the divorcing couple, as it reduces their
exposure to parental conflict and helps them cope with the transition.
Under
the Hindu Marriage Act, irretrievable breakdown of marriage is not yet a ground
for divorce.
Rationale for Granting Divorce Based on Irretrievable
Breakdown:
1. Previous Rulings in Courts:
● Courts
in the past recognized that in many cases, the mandatory waiting period only prolongs the misery of the couple, and
often delays or impedes a settlement.
2. Law Commission Reports:
● Irretrievable
breakdown of marriage was considered by the Law Commission in a few of its
reports. The Commission in its 71st
report recommended that the law be amended to provide for “irretrievable
breakdown of marriage” as an additional ground for divorce. The same was
reiterated in its 217th report also.
3. Marriage Laws (Amendment) Bill, 2010
● In
2010, the government introduced the Marriage Laws (Amendment) Bill, 2010. It
proposed to add irretrievable breakdown
as a new ground for divorce in both the Hindu Marriage Act and the Special
Marriage Act.
● But
after amendment the 2013 bill mentioned that the six-month waiting period could
be mutually waived by the parties but the Bill was never passed.
4. SC Judgement:
● In
Sivasankaran vs Santhimeenal (2021),
SC considered the question of social acceptance and economic security of women
during irretrievable breakdown and said it should be granted unilaterally.
Advantages of Granting Divorce for Irretrievable
Breakdowns:
● It
provides relief to couples from the
“agony and misery” of waiting six to 18 months for a local court to annul
the marriage.
● Many
women are still not financially independent. So, a faster divorce might provide
faster financial settlement.
● Normalize
divorce and can eliminate the social
stigma around divorce in India.
Concerns of the SC Rulings:
● The
experts point out that granting divorce for irretrievable breakdowns without a
cooling-off period might push women into
a disadvantageous position as there are high levels of gender
discrimination in India.
● The
liberal notion of marriage as a partnership of mutual consent is not yet the
reality in much of the country, and its dissolution usually entails enormous social and economic hardship for women and
children.