Virendra Kumar
In a recent ruling of the Supreme Court in Vishnu Dutt Sharma v. Manju Sharma by Justice Markanday Katju and Justice V.S. Sirpurkar. The Bench has ruled that divorce cannot be granted under the provisions of the Hindu Marriage Act 1955 on ground of irretrievable breakdown of marriage.
A perusal of the apex court order in this case, however, reveals that it bears some disturbing dimensions that tend to disrupt the well-established legal order. First, the ruling deviates from the direction hitherto provided by the Supreme Court itself in a number of judicial decisions, particularly a relatively recent judgement rendered by a three-Judge Bench of the Supreme Court in Naveen Kohli v. Neelu Kohli (2006). In this case, the Bench examined the whole gamut of Section 13 of the Hindu Marriage Act, especially the numerous nuisances of the matrimonial ground of cruelty.
On totality of facts, reversing the decision of the Allahabad High Court, the Bench granted the divorce petition of the appellant husband despite strong opposition by the respondent wife.
The underlying principle that emerges from this judgement is that if it is not possible to reconcile the spouses after long separation (10 years in this case) on the basis of some ‘workable solution’, it is better to dissolve such a marriage.
The apex court affirmed the earlier decisions that took the similar position: see, Sandhya Rani v. Kalyanram Narayanan (1994), Chandrakala Menon v. Vipin Menon (1993); and Kanchan Devi v. Promod Kumar Mittal (1996).
While laying down this principle of justice, the Bench also took the opportunityto recommend the Union of India to seriously consider bringing an amendment inthe Act of 1955 for expressly incorporating irretrievable breakdown principle as aground of divorce.
Reading irretrievable breakdown principle into the provisions of Hindu Marriage Act, pending its express incorporation into the Act, is a right, nay an indispensable constitutional obligation, of the apex court. Under Article 141 read with Articles 142 and 144 of the Constitution, ‘for doing complete justice in any cause or matter pending before it,’ the Supreme Court may pass any order, and all authorities are mandated to act in aid of the orders so passed. Therefore, the apex court cannot be taken to usurp the legislative function; it rather facilitates legislation by showing the desired direction.
If this construction and comprehension of the constitutional provisions is correct, it does not seem to be right in our respectful submission to say, as stated by the Katju-Sirpurkar Bench, that all those cases of the apex court that provided the relief of divorce on the principle of irretrievable breakdown of marriage, in the absence of clear and categorical provision will not be treated as judicial precedents.
Jurisprudentially, only those judicial decisions that break new grounds for doing ‘complete justice’ in the course of resolving conflict problems could truly be treated as ‘precedents’. On the contrary, a judgment rendered by the court, in which ‘full justice’ has been done by literally adhering to the clear statutory standards, hardly needs to be cited as ‘precedent’.
Thus, it sounds strange to state that, even while dealing with a ‘stale marriage’,evidenced by a separation period of more than 15 years (in the instant case,wife Manju stayed with her husband Vishnu Dutt for about 25 days in 1993-94,and thereafter till 2009 they never lived with each other), the court should besaying that such marriage could not be dissolved on the basis of irretrievablebreakdown of marriage because that would amount to ‘amending the Act, whichis a function of the legislature’.
If this proposition is accepted, that would simply imply that the judicial function as envisaged by Articles 141 and 142 is merely mechanical and not creative. There is yet another inherent reason for invoking the irretrievable breakdown principle while deciding disputes under the Hindu Marriage Act. In Vishnu Dutt Sharma case, on bare reading of Section 13 of the Act, the Katju-Sirpurkar bench found in a ‘crystal clear’ manner that ‘no such ground of irretrievable breakdown of marriage is provided by the legislature for granting a decree of divorce.’
However, in our submission, if the provisions of Section 13 are read with those ofSection 23 (2) of the Act, we would instantly hear the clear resonance of theirretrievable breakdown principle. Under sub-section (2) of Section 23, beforegranting any relief under the Act, the court in the first instance, in every casewhere it is possible so to do, to make every attempt to bring about reconciliationbetween the parties.
In this attempt, the court’s core concern is not to find who is guilty or who is innocent, but to explore the possibility of reconciling the spouses caught in conflict. This indeed is the application of irretrievable breakdown principle. If the inevitable conclusion is that reconciliation is not possible, then the court should consider its dissolution in terms of the provisions of Section 13 as expounded by the three-Judge bench in Naveen Kohli.
Besides, Section 13 of the Act is not completely void of irretrievable breakdown principle. In 1964, its ambit was widened by introducing Section 13 (1A), empowering the court to grant divorce decree to ‘either party’ to marriage if there has been no resumption of cohabitation for a period of one year or more after passing the decree of either judicial separation or restitution of conjugal rights.
This added provision, it seems, was not brought to the attention of the Katju-Sirpurkar Bench. This might have prompted them to realise the futility of the marriage in which there was no resumption of cohabitation for such a long period as of 15 years, against the value attached by the legislature to a relatively much shorter period of ‘one year or more’.
The writer is a former Professor and Chairman, Department of Laws, andUGC Emeritus Fellow, Panjab University, Chandigarh
Source:- http://www.tribuneindia.com/2009/20090329/edit.htm#2 29 March 2009
For any query:- legalpoint@aol.in
A perusal of the apex court order in this case, however, reveals that it bears some disturbing dimensions that tend to disrupt the well-established legal order. First, the ruling deviates from the direction hitherto provided by the Supreme Court itself in a number of judicial decisions, particularly a relatively recent judgement rendered by a three-Judge Bench of the Supreme Court in Naveen Kohli v. Neelu Kohli (2006). In this case, the Bench examined the whole gamut of Section 13 of the Hindu Marriage Act, especially the numerous nuisances of the matrimonial ground of cruelty.
On totality of facts, reversing the decision of the Allahabad High Court, the Bench granted the divorce petition of the appellant husband despite strong opposition by the respondent wife.
The underlying principle that emerges from this judgement is that if it is not possible to reconcile the spouses after long separation (10 years in this case) on the basis of some ‘workable solution’, it is better to dissolve such a marriage.
The apex court affirmed the earlier decisions that took the similar position: see, Sandhya Rani v. Kalyanram Narayanan (1994), Chandrakala Menon v. Vipin Menon (1993); and Kanchan Devi v. Promod Kumar Mittal (1996).
While laying down this principle of justice, the Bench also took the opportunityto recommend the Union of India to seriously consider bringing an amendment inthe Act of 1955 for expressly incorporating irretrievable breakdown principle as aground of divorce.
Reading irretrievable breakdown principle into the provisions of Hindu Marriage Act, pending its express incorporation into the Act, is a right, nay an indispensable constitutional obligation, of the apex court. Under Article 141 read with Articles 142 and 144 of the Constitution, ‘for doing complete justice in any cause or matter pending before it,’ the Supreme Court may pass any order, and all authorities are mandated to act in aid of the orders so passed. Therefore, the apex court cannot be taken to usurp the legislative function; it rather facilitates legislation by showing the desired direction.
If this construction and comprehension of the constitutional provisions is correct, it does not seem to be right in our respectful submission to say, as stated by the Katju-Sirpurkar Bench, that all those cases of the apex court that provided the relief of divorce on the principle of irretrievable breakdown of marriage, in the absence of clear and categorical provision will not be treated as judicial precedents.
Jurisprudentially, only those judicial decisions that break new grounds for doing ‘complete justice’ in the course of resolving conflict problems could truly be treated as ‘precedents’. On the contrary, a judgment rendered by the court, in which ‘full justice’ has been done by literally adhering to the clear statutory standards, hardly needs to be cited as ‘precedent’.
Thus, it sounds strange to state that, even while dealing with a ‘stale marriage’,evidenced by a separation period of more than 15 years (in the instant case,wife Manju stayed with her husband Vishnu Dutt for about 25 days in 1993-94,and thereafter till 2009 they never lived with each other), the court should besaying that such marriage could not be dissolved on the basis of irretrievablebreakdown of marriage because that would amount to ‘amending the Act, whichis a function of the legislature’.
If this proposition is accepted, that would simply imply that the judicial function as envisaged by Articles 141 and 142 is merely mechanical and not creative. There is yet another inherent reason for invoking the irretrievable breakdown principle while deciding disputes under the Hindu Marriage Act. In Vishnu Dutt Sharma case, on bare reading of Section 13 of the Act, the Katju-Sirpurkar bench found in a ‘crystal clear’ manner that ‘no such ground of irretrievable breakdown of marriage is provided by the legislature for granting a decree of divorce.’
However, in our submission, if the provisions of Section 13 are read with those ofSection 23 (2) of the Act, we would instantly hear the clear resonance of theirretrievable breakdown principle. Under sub-section (2) of Section 23, beforegranting any relief under the Act, the court in the first instance, in every casewhere it is possible so to do, to make every attempt to bring about reconciliationbetween the parties.
In this attempt, the court’s core concern is not to find who is guilty or who is innocent, but to explore the possibility of reconciling the spouses caught in conflict. This indeed is the application of irretrievable breakdown principle. If the inevitable conclusion is that reconciliation is not possible, then the court should consider its dissolution in terms of the provisions of Section 13 as expounded by the three-Judge bench in Naveen Kohli.
Besides, Section 13 of the Act is not completely void of irretrievable breakdown principle. In 1964, its ambit was widened by introducing Section 13 (1A), empowering the court to grant divorce decree to ‘either party’ to marriage if there has been no resumption of cohabitation for a period of one year or more after passing the decree of either judicial separation or restitution of conjugal rights.
This added provision, it seems, was not brought to the attention of the Katju-Sirpurkar Bench. This might have prompted them to realise the futility of the marriage in which there was no resumption of cohabitation for such a long period as of 15 years, against the value attached by the legislature to a relatively much shorter period of ‘one year or more’.
The writer is a former Professor and Chairman, Department of Laws, andUGC Emeritus Fellow, Panjab University, Chandigarh
Source:- http://www.tribuneindia.com/2009/20090329/edit.htm#2 29 March 2009
For any query:- legalpoint@aol.in
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