Arguments That Reject Theory of Irretrievable Breakdown of Marriage Since It Is Sacrament Do Not Make Any Legal Sense: Jaising Tells SC

A Constitution Bench of the Supreme Court on Wednesday began hearing a batch of petitions raising common questions of law, namely, whether it could exercise its powers under Article 142 to dissolve a marriage, what were the broad parameters to exercise such power, and whether the invocation of such extraordinary powers was allowed in the absence of the mutual consent of the parties. The first two questions were formulated and referred by a Division Bench composed of Chief Justice Ranjan Gogoi and Justice N.V. Ramana (as he then was) in the course of hearing a number of transfer petitions. Although the disputes were conclusively adjudicated, the case was kept alive, as questions of seminal importance had been raised, and in light of "the huge number of requests for exercise of power under Article 142". After being formed, the Constitution Bench noted that it was essential to consider the third question as well.The five-judge Bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari. The Court is being assisted by Senior Advocates V. Giri, Dushyant Dave, Indira Jaising, and Meenakshi Arora. A request from Senior Advocate Kapil Sibal to be heard was also accepted. Justice Kaul noted – "We are very hesitant to allow interventions because that will open the floodgates, but we will get the benefit of your submissions."The deliberations were opened by Jaising, who analysed the meaning of marriage by placing reliance on how it has been understood by different courts of law. Her objective, she clarified at the outset, was to first distil the essential components of an ideal marriage, and then deliberate on the question of how to dissolve a marriage in which those fundamental elements were absent, while simultaneously maximising the welfare of the stakeholders, particularly the women and the children. The matter is listed to be heard again on Thursday, September 29.BackgroundMarriage under Hindu law has long been thought to be an indissoluble, sacramental union. When provisions for divorce were finally introduced by enacting the Hindu Marriage Act, 1955, they were relegated to the recesses of the 'fault theory', which necessitated the act of locating fault as a precondition for obtaining a divorce. However, the Law Commission recommended that the law be amended to provide for 'irretrievable breakdown of marriage' as an additional ground of divorce in its 71st Report entitled "The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce" (1978) and again in its 217th Report entitled "Irretrievable Breakdown of Marriage – Another Ground for Divorce" (2009). The Marriage Laws (Amendment) Bill, 2010 (reintroduced in 2013 after inputs from stakeholders), which sought to add 'irretrievable breakdown of marriage' as a new ground for divorce in the Act, was never passed. Therefore, 'irretrievable breakdown of marriage', as it has been recognised by the Courts in course of the development of the jurisprudence of divorce, does not yet exist as a statutory ground. The Supreme Court, however, at times, has invoked its omnibus powers under Article 142 to dissolve marriages on the ground that they have broken down without the possibility of reconciliation. In 2015, the apex court while hearing a batch of transfer petitions relating to matrimonial disputes in Shilpa Sailesh v. Varun Sreenivasan, noted the large volume of such requests. Consequently, after disposing of the cases on their merits, the Court issued an order reported at (2016) 16 SCC 352 stating – "Notwithstanding the above order passed by us, for the purposes of statistics the present transfer petitions shall remain pending as we are of the view that an issue of some importance needs to be addressed by the Court in view of the huge number of requests for exercise of power under Article 142 of the Constitution that has confronted this Court consequent to settlement arrived at by and between the husband and the wife to seek divorce by mutual consent."The Bench led by Chief Justice Gogoi framed the following questions for determination by a Constitution Bench:What could be the broad parameters for exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act?Whether the exercise of such jurisdiction under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case?Before the commencement of the hearings, Justice Kaul also noted that it was particularly difficult to reconcile competing claims when one party alleged an irretrievable breakdown of marriage but the other party resisted the efforts to dissolve the marriage. This, Justice Kaul, said was the "real concern". Therefore, the Constitution Bench issued an order on September 20 – "We do believe that...

Arguments That Reject Theory of Irretrievable Breakdown of Marriage Since It Is Sacrament Do Not Make Any Legal Sense: Jaising Tells SC

Awstika Das

Tags