Citation-TRANSFER PETITION (CIVIL) NO. 1118 OF 2014..
Bench – The judgment was given by the constitutional bench which comprised of, Justice Sanjiv Khanna , ,Justice Vikram Nath ,Justice Jk Maheshwari Justice Sk Kaul and Justice As Oka Jha
Brief facts –
The case highlighted the matter where the respondent Shipla Shailesh and the appellant Varun Srinivasan were both married in 2000 in accordance to Hindu rituals and ceremonies as per Hindu law. After 2 months of living together the wife went to Canada and got Canadian citizenship in 2002.the appellant claimed that the wife went to Canada without consent. After her return both of them had fights later they got a solution from the existing panchayat that they shall live separately but this solution was also not fruitful later in the cause of this situation the respondent wife returned to Canada again.
In the present circumstance a case for divorce was filed by the appellant of the case under the Section 13[ 1]{ a} of the Hindu marriage act 1955 as cruelty as a ground for filing divorce petition in the present marriage . the claim was made by the appellant that the marriage where there was loneliness and no cohabitation has resulted in him having physical and mental torture
The respondent in response blamed the appellant claiming there was dowry demand, physical assault and extra marital affairs which made her leave the matrimonial home the respondent also claimed that the husband forced her to have abortion .the appellant had denied all these claims claiming that the wife was never pregnant so there is no existence of forced abortion
Lower Court and High Court Decision-
The argument of both sides of the parties was heard a divorce was granted to both the parties by the additional district judge later then a petition of the case filed in Punjab high court. the decree of divorce was set aside by the high court claiming that the wear and tear of allegations from both sides was due to inflamed passions. The high court gave the decision that there was no adequate ground to knock down the marriage. later both parties to seek divorce under the article 142 of the constitution approached the supreme court .
Both parties mutually consented and stated that their marriage is irrevocably damaged. which has been not listed as a ground to seek divorce under the Hindu Marriage Act. Hence they have seeked redressal from the supreme court instead of the family court.
This particular case was referred to the constitutional bench by the 2 judge bench of supreme court considering there were numerous cases in regard to the matter. but the hearing of the case was pending up to 2022.the case also had a question how to apply Article 142 in case of granting divorce.
Legal provisions
Article 142 Of Indian Constitution–
Under this article the supreme court has discretional power. Under which it can give any form of order which seems to be necessary by the court in the matter of granting justice. This power is only provided to supreme court.
Section 13{B}, Hindu Marriage Act ,1955
The section defines divorce by mutual consent and lays down conditions to grant such divorse.it also allows the couples to seek divorce in the circumstance where the both the given parties who have been seeking divorce have been living separately for more than one year it accounts to divorce under this section.
Issues Raised
- Whether or not there can be application of article 142 of the constitution in a scenario where there is the existence of irretrievable breakdown of marriage in a case where one among both the parties is not consenting to the terms?
- If article 142 can be used to claim divorce, then in that case can the matter if divorce can be directly referred to Supreme Court without approaching family court in such a scenario?
- Whether or not irretrievable breakdown of marriage can be included as of when there is a consideration of dissolution of marriage?
- Whether uniform law in regard to a marriage which has reached a circumstance of irretrievable breakdown if so is it applicable to all forms of religions and castes?
Rationale
The court discussed power and jurisdiction of supreme court under article 142. It was held that in matters of holding the fundamental general and specific policy the court can in such a circumstance hold the procedural and substantive law. Additionally, it was held by the court that the power of article 142 can be used in the case where there is settlement between the parties which is what is present in the case of granting divorce. a court in view of settlement has the power to give divorce in presence of mutual consent Under, Article 142 without following the substantive and procedural which is listed under section13(b) of the HMA,1955.
In addition to this the connected proceedings like the proceeding in the matter of domestic violence act, in case of Section 125 CrPc and 498-A of IPC can be quashed by the supreme court if they are existing simultaneously.
The court also held in the present circumstance where irretrievable breakdown of marriage exists, in case of one of the spouses not consenting. By article 142 the court can grant divorce if there exists ground of irretrievable breakdown of marriage to achieve complete justice and the facts are also demonstrating the same situation that there are no circumstances where the marriage in any scenario can be continued.
DEFECTS OF LAW
The present case highlighted the major fallback in law that even in current scenario the prevailing laws of the country don’t deal with a situation as such where the parties have been living under the same roof but they have reached to a circumstance where they are bound to separation .the codification of irretrievable breakdown of marriage is not present in the current scenario .the divorce grounds under the HMA,1955 under section 13 deal with limited circumstances and situation which has not evolved with the changing society and its nature .also under the section 13 b of the HMA ,1955 it limits the usage in case of divorce by mutual consent which does not answer such circumstances .
INFERENCE
The Supreme court holds the power to give divorce under the article 142 in case of irretrievable breakdown of marriage where one of the spouses is not agreeing with the prayer of divorce. the analysis was done with interpretation of section 13(1)(A) read with section 23 (1) (a) of the Hindu Marriage Act,1955.
Both of the sections deal with cruelty as the divorce ground and how relief can be seeked under the particular ground. No defined definition of cruelty is mentioned under the Hindu marriage Act,1955.it only explains the fault theory in which either of the parties have created circumstances of divorce which also gives the supreme court the chance to interpret the cruelty as a ground as there is no definite definition of the same.
Cases referred
V Bhagat Vs D Bhagat
This case was referred by the supreme court to define to definition of cruelty the case gave the definition of cruelty .it being that the definition of cruelty is not only up to that of physical cruelty but also can be expanded to mental cruelty also the court held that cruelty shall be determined on the basis of facts and circumstance of the case and also on the basis of the temperament of the parties to the case.
Ashok Hurrah Vs Rupa Bipin Zaveri
In the case the court held that prolonging dead marriage leads to more and more emotional and practical suffering in such cases divorce shall be sought. Irretrievable breakdown of marriage is not a ground of divorce under the Hindu marriage act but courts can exercise power under article 142(2) to grant divorce.
Naveen Kohli Vs Neelu Kohli
The particular case discussed the concept of mental cruelty and also difficulty in admissibility of evidence to prove the existence of the same.in such scenario divorce shall be granted considering the best interest of the parties.
Conclusion
The judgment sets a milestone in the field of Indian personal law displaying progressive stand in case of marital disputes and divorce. The provision of article 142 sets a balance in the underscore of protecting justice and equality in the field of family law. Coming to criticism of the judgment there is surely a potential misuse where it comes to discretionary powers of the court considering the ground of divorce as irretrievable breakdown of marriage raising unilateral decisions .the judgment does provide a form of clarity in case of judicial discretion in implementation of the article 142 of the constitution ensuring there is consistency and fairness in the decision which has been given .the judgment also brings to light a essential criteria which has to be further taken into consideration being analyzing and expanding the scope to which divorce can be granted considering that there is need due to new conditions and evolving of the society taken place.
RIDHIMA JAIN
LLOYD LAW COLLEGE