NEW DELHI: The Supreme Court Monday dissolved an around two-decade-old marriage which was never consummated saying the couple never lived together even for a day and it appeared there was a “crash landing” at the take-off stage itself.
The apex court passed the decree of divorce dissolving the marriage not only in exercise of its plenary powers under Article 142 of the Constitution on account of irretrievable breakdown of marriage but also on account of cruelty under the provision of the Hindu Marriage Act in view of the conduct of the woman during the pendency of judicial proceedings.
A bench of justices Sanjay Kishan Kaul and Hrishikesh Roy noted that endeavour to find a solution through mediation or any acceptable solution between the parties, who were married in February 2002, did not succeed.
“It appears there was a crash landing at the take-off stage itself!,” the bench said in its verdict passed on a plea filed by the man.
The man, who was working as an assistant professor, had told the apex court that the woman’s view was that she had been coerced into marrying him without her consent and she had left the marriage hall late at night.
The bench noted the conduct of the woman, who had resorted to filing multiple cases in courts against the man and also made representations to college authorities seeking initiation of disciplinary proceedings against him, and said these continuing acts would amount to cruelty.
“The moot point is that the marriage has not taken of from its inception. There can hardly be any ‘wear and tear of marriage’ where parties have not been living together for a long period of time. The parties, undisputedly, never lived together even for a day,” it said, adding, “The marriage was never consummated and the parties have been living separately from the date of marriage for almost 20 years.”
The top court said under the Hindu law, marriage is sacramental in character and is supposed to be an eternal union of two people and the society at large does not accept divorce, given the heightened importance of marriage as a social institution in India.
“Or at least, it is far more difficult for women to retain social acceptance after a decree of divorce. This, coupled with the law’s failure to guarantee economic and financial security to women in the event of a breakdown of marriage; is stated to be the reason for the legislature’s reluctance to introduce irretrievable breakdown as a ground for divorce, even though there may have been a change in social norms over a period of time,” the bench said.
It said a marriage is more than a seemingly simple union between two individuals and as a social institution, all marriages have legal, economic, cultural and religious ramifications.
It said insofar as irretrievable breakdown of marriage is concerned, it does not exist as a ground of divorce under the Act and the issue has been debated by the Law Commission in its various reports.
It noted that breakdown of marriage was considered by the Law Commission in its 59th report but the commission made no specific recommendations in this regard.
It said in its 71st report, the commission departed from the fault theory of divorce to recognise situations where a marriage has completely broken down and there is no possibility of reconciliation and for such situations, it recommended that the law be amended to provide for irretrievable breakdown of marriage as an additional ground of divorce.
“This recommendation was reiterated by the Law Commission in its 217th Report in 2010, after undertaking a suo moto study of the legal issues involved. So far, the Law Commission’s recommendations have not been implemented,” it said.
The apex court said in 2010, the government introduced the Marriage Laws (Amendment) Bill, 2010, which proposed to add irretrievable breakdown of marriage as a new ground for divorce in both the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
It noted that after receiving suggestions from relevant stake holders, the Bill was amended and reintroduced as the Marriage Laws (Amendment) Bill, 2013, but it was never passed.
The bench said in appropriate cases, the apex court has granted decrees of divorce by exercising its jurisdiction under Article 142 to do complete justice between the parties.
It noted that a reference on the issues, including what could be the broad parameters for exercise of powers under Article 142 to dissolve the marriage between consenting parties without referring them to family court to wait for the period prescribed under the provision of Hindu Marriage Act, is pending before its constitution bench.
“Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation merely because of the pendency of the reference,” it said.
Dealing with the case, the bench said it has little doubt that this is a marriage which has not worked and cannot work.
“We are, thus, of the view that a decree of divorce dissolving the marriage between the parties be passed not only in exercise of powers under Article 142 of the Constitution of India on account of irretrievable breakdown of marriage, but also on account of cruelty under of the Act in light of the subsequent conduct of the respondent (woman) during the pendency of judicial proceedings at various stages,” it said.