SC ruling on mutual-consent divorce won't help all seeking to dissolve a marriage

It may even be inimical to women, some legal experts fear. The ruling is based on Article 142, letting the Supreme Court override the 6-month wait clause; but it won't be the default procedure.

The Supreme Court of India (NH file photo)
The Supreme Court of India (NH file photo)

Ashlin Mathew

The Supreme Court ruled that it can exercise its Constitutional powers under Article 142 to dissolve marriages by waiving of the six-month period defined under the law. The grounds of 'irretrievable breakdown of a marriage' would be sufficient for the ruling, the Court opined.

However, lawyers and experts have mixed feeling about this ruling.

A five-judge Constitution bench comprising justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari underscored that the apex court can invoke its power under Article 142(1) to grant a divorce by mutual consent quicker, by dispensing with the procedure prescribed under Section 13-B of the Hindu Marriage Act.

Article 142 of the Constitution states that the Supreme Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

However, the court also clarified that the affected parties cannot directly approach the apex court directly for divorce.

The Supreme Court has stated that parties cannot file writ petitions under Article 32 before the Supreme Court or under Article 226 before the High Court to seek divorce on grounds of 'irretrievable breakdown of marriage'. The couple will not be allowed to circumvent the law.

Several lawyers underscored that this ruling was more about the Supreme Court’s jurisdiction, rather than about the typical divorce case in general. “The verdict is about the powers of the Supreme Court—whether in the exercise of that power the apex court could put an end to all the litigations between parties and whether it could grant divorce,” said Supreme Court advocate Talha Abdul Rahman.

This ruling just means that the law does not impose any fetters on the powers of the Supreme Court. “This is a fair judgement on the powers of the Supreme Court," said Rahman, "but it falls short because it does not lay down a general ground for irretrievable breakdown of marriage, which the trial courts could have followed in the interim. The SC recognises there is a vacuum. So then, if it has recognised that there is a problem, a solution should be offered. This is a missed opportunity, though that question was not before the court.”

This case will not really help people applying for divorce very much, Rahman felt, as they still have to go by what is laid done in the V. Bhagat vs D. Bhagat case, where parties have to prove cruelty to be granted a divorce. 'Irretrievable differences' can be a form of cruelty and it has already been extended to this sense in the Bhagat case. The court had elaborated in this case that cruelty, mental or physical, may be both intentional and unintentional. It had also noted that cruelty is subjective; it is person-, background- and circumstance-specific.

“Matrimonial obligations and responsibilities vary in degrees. They differ in each household and to each person, and the cruelty alleged depends upon the nature of life the parties are accustomed to, or their social and economic conditions. They may also depend upon the culture and human values to which the spouses assign significance,” stated the judgement in the Bhagat vs Bhagat case.

The Bhagat vs Bhagat judgement had read that mental cruelty can broadly be defined as that conduct which 'inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other'.

However, senior advocate Flavia Agnes believes that if this last Supreme Court judgement were to trickle down and make expediting divorce easier, it would not be good for women as a divorce typically involves a lot of negotiation, mostly economic. “In most cases, where irrevocable differences are stated, there is also division of property," said Agnes. "If the husband thinks that the marriage has broken down and there is no binding clause stating that there should be economic arrangement... then the woman ends up in a difficult situation.”

She highlighted that even the Supreme Court has asked for this judgement to be exercised with caution. It is not a right. “A lot of women do think this is a progressive judgement, but I beg to differ. This will leave more women vulnerable than they realise,” she added.

Expanding on Agnes’s statement, young lawyer Gayatri Singh Dahiya said that historically, marriage has meant financial security for the female partner. “While I agree that divorce is hard, a marriage almost entirely benefits the male partner," said Dahiya. "This could be more beneficial for women in urban settings who may themselves have some financial independence and may want to walk out of a marriage.”

She pointed out that any change in the law that makes it easier for a man to walk away is not necessarily beneficial for the woman. The reality that India’s family courts are clogged with women trying to get maintenance or rights for their children should not be ignored, Dahiya added.

The Forum against Oppression of Women said they have been arguing since 1990 that the irretrievable breakdown of a marriage should be a clause for divorce. “If any one party feels like they cannot stay in a marriage, it is not right to force them to. Our caveat has always been that as long as the economic responsibilities are taken care of and are met as per the needs of the woman, irretrievable breakdown of marriage should be a clause,” said Chayanika Shah, one of the founders of the forum.

Extending the argument around divorce being facilitated in courts, Rahman said that he believed that there was a necessity to deregulate divorces and take them away from courts. “Unfortunately, that is the problem [critics] find with Muslim divorces, that it is completely deregulated,” said Rahman. He contended that a divorce application takes years to process in courts, as it was cluttered with cases.

“If the courts were not cluttered and a divorce application could be processed in a few weeks, then it would make sense for a third party to review it,” he added.

The Supreme Court's verdict had come out in relation to a case filed in 2014.   

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