Refusal To Dissolve Marriage Despite Its Breakdown Amounts To Mental Cruelty: Sr.Ad V Giri Tells Supreme Court

Senior Advocate V. Giri on Thursday told a Constitution Bench of the Supreme Court that 'irretrievable breakdown of marriage' could be read into the broad ground of cruelty under the Hindu Marriage Act, 1956, which had been judicially interpreted to include mental cruelty. However, Giri argued, the family court and the High Court could only grant a divorce for reasons of irretrievable breakdown where cruelty, as a specific ground, had been alleged. Giri contended that the Supreme Court was not limited in that manner and could infer that the marriage had broken down beyond the possibility of reconciliation from the facts and circumstances, even where a specific pleading pertaining to cruelty was not placed before the court. Therefore, in the exercise of the powers under Articles 142, the Supreme Court could dissolve the marriage. Such exercise of its powers would not "frontally assault" any of the restraints the apex court imposed on itself, the senior counsel submitted. The Constitution Bench was 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 five-judge Bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari. Among the amici curiae appointed to assist the court, was Giri. Giri began his submissions by pointing out that the apex court had imposed only two self-restraints in the exercise of plenary powers under Article 142. Such exercise was tested on the touchstone of Part III of the Constitution. Secondly, it would also have to be exercised in a manner that did not violate any statutory provision. After exploring the contours of the power contained in Article 142 and their limitations, the senior counsel argued that 'irretrievable breakdown of marriage' as a ground for divorce could be read into Section 13 – "Textually, the law as articulated in Section 13 does not provide 'irretrievable breakdown of marriage' as a ground. This section does not provide an exhaustive enumeration of grounds. I am not saying anyone can invent a ground that does not fall strictly within the parameters of Section 13 and seek a divorce on the basis of that ground. That is not sufficient. But there is some indication why an 'irretrievable breakdown of marriage' could be used to grant a decree." 'Irretrievable breakdown of marriage' was subsumed under the broad ground of cruelty, Giri submitted. He traced the jurisprudential development of cruelty within the meaning of Section 13 of the Hindu Marriage Act, 1955 – "The law as it stood originally dealt only with mental cruelty. But later, some years and decades back, this Court had said it could also be mental cruelty." Then, relying on Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], where refusal to dissolve a marriage despite its breakdown was held to be mental cruelty, Giri asserted – "The recalcitrance on the part of one of the parties not to consent for a dissolution of marriage despite its breakdown also amounts to cruelty. This Court may intervene in a situation like this." Giri added – "Where there is such unnecessary recalcitrance on part of one of the spouses, or where they have not been cohabiting for a long period of time, where they have been trading allegations, or where there is proof to show that one of them has been engaging in adulterous behaviour...These are certain grounds for intervention." Justice Kaul interjected, pointing out the practical difficulty in enumerating all the situations that would warrant the activation of Article 142 – "It may be difficult to think of all the innumerable situations that may arise with respect to an interpersonal relationship. The question is, are we entitled to exercise this power? Either we have a right or we don't have a right." In response, Giri vehemently asserted that the powers under Article 142, in this case, were not circumscribed in any manner – "Power under Article 142 is not cribbed, cabined, or confined by any restraint either flowing from the constitution, or for that matter, flowing from any express statutory provision. It is plenary in character. This is not a case where this Court will find that the power to do complete justice is not available. In fact, it would be an injustice to force two persons who cannot see eye to eye to remain in a marriage. This also throws the remaining members of the family into disarray. This would be a classic case of exercise of your powers under Article 142." He argued that the Supreme Court would merely be devising a tool, and not violating any express provision by interpreting Section 13 to include irretrievable breakdown of marriage – ...

Refusal To Dissolve Marriage Despite Its Breakdown Amounts To Mental Cruelty: Sr.Ad V Giri Tells Supreme Court

Awstika Das

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