Right To Exit A Marriage A Fundamental Right, Locating Fault Not Necessary For Divorce: Indira Jaising Argues Before Supreme Court

Senior Advocate Indira Jaising on Thursday told a Constitution Bench of the Supreme Court that the right to enter a marriage, and as an extension, the right to exit the union, would be covered under the right to form associations under Article 19(1)(c) read with the right to life and liberty under Article 21. The senior counsel also argued that if a marriage had irretrievably broken down, it need not be examined who was at fault. The plea for dissolution under such circumstances would necessarily receive the imprimatur of the court, notwithstanding that mutual consent might be absent. 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 Jaising. Jaising opened the deliberations on the day of the first hearing by analysing the meaning of marriage by placing reliance on how it had been understood by different courts of law. Her objective, she clarified at the outset, was to first distill the essential components of an ideal marriage, and then determine how to dissolve a marriage that lacked those fundamental elements. Maximising the welfare of the stakeholders, particularly the women and the children, was the primary objective. Jaising on Thursday strenuously argued that the right to marry and the right to terminate the marriage were both fundamental rights enshrined under Article 21 – "Right to marry is a fundamental right because it is a part of the right to form affiliations. It can be extended to the right to exit the affiliation…Unreasonable restrictions can be a ground to call into question a law." Justice Khanna inferred – "You basically want to give full autonomy to a person to continue or not to continue…" Jaising agreed – "That is why I have said that the right to enter a marriage and exit one are fundamental rights. There are systems of law where people can get unilateral divorces. Here, there is an intermediary, that is, the court. So we have to figure out the role of the court." Jaising then proposed a limited role for courts in matrimonial disputes, observing that their only function was to attempt a reconciliation between the parties in the public interest. "The court of law can at best attempt reconciliation in public interest and in the best interest of the children. There is already a standard for the grant of alimony…But for an emotional breakdown, there can be no standard. Therefore, if there is an irretrievable breakdown of marriage, it must receive the imprimatur of the court." Jaising submitted that the apex court had in the past given liberal interpretations to statutes in order to enhance public welfare. Reliance was placed on Central Inland Water Transport Corporation v. Brojo Nath Ganguly [AIR 1986 SC 1571], where the Supreme Court had struck down a 'Henry VIII Clause' under Section 23 of the Indian Contract Act, 1872 as "opposed to public policy", despite there being no mention of such a ground. Jaising added that it was in the public interest to end marriages that could not be salvaged. This would safeguard the mental health and wellbeing of the parties, and would promote the best interest of the children born out of the union – "It is in the public interest to dissolve marriages where there is an irretrievable breakdown of marriage because it would allow people to make the best of the rest of their lives." She assailed the predominant fault theory on the ground that it had become obsolete in other jurisdictions. On the distinction between cause and fault, Jaising explained that even though divorce might be traced back to one or more causes, it would not always indicate that one party was at fault. She urged that the exercise of attributing fault to a spouse as a necessary precondition for obtaining a divorce was redundant – "The only reason to reject a petition is if the court has come to the conclusion that it has not irretrievably broken down. But if it has broken down, then how does it matter who was at fault? In almost all cases of divorce, there are allegations and counter-allegations…Another situation is where a person who has been wronged does not want to put it in the public domain." She also advocated a complete departure from the fault theory – "It is Section 23 which brings in fault theory, and not Section 13 of the Hindu Marriage Act. 'Fault' within the meaning of Section 23 cannot be equated with the second. That is my interpretation of the statute. It was also recommended...

Right To Exit A Marriage A Fundamental Right, Locating Fault Not Necessary For Divorce: Indira Jaising Argues Before Supreme Court

Awstika Das

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