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SC flip-flops on irretrievable breakdown of marriage

By Rakesh Shukla

The Supreme Court has in the past granted divorce based on irretrievable breakdown of marriage, but a recent judgment dismisses it. The law must be settled once and for all, in the best interests of society

There is an ongoing debate about whether divorce should be granted solely on the basis of the “fault of the party”, or whether it should be based on the breakdown of marriage. Opinions remain divided among sociologists, lawmakers, reformers and even activists and feminists. Marriage as a sacrament, society’s stake in the continuance of marriage, the duty of judges to effect a reconciliation between the parties, and public interest are some of the important factors that feature in this debate. 

The judicial trend seemed to be moving towards an acceptance of “irretrievable breakdown” as grounds for divorce. In earlier cases, the Supreme Court granted a divorce, observing that where the marriage had been wrecked beyond any hope of salvation, public interest and the interests of all concerned lay in the recognition, in law, of this fact (read ‘The “fault theory” vs the “breakdown theory” of divorce’, Infochange News & Features, May 2006).

Part of the fault theory is that a person cannot take advantage of his/her own wrongdoing. For example, a man cannot commit adultery or inflict cruelty and then file a petition for divorce. Divorce can only be sought by the “hurt” or “aggrieved” party who has been at the receiving end of the other party’s offensive conduct.

Another area of concern has been whether the introduction of irretrievable breakdown as grounds for divorce would work against the interests of women, given the gender disparities and large number of women deserted by their husbands. It is in this context that the Supreme Court recently had occasion to revisit the issue of irretrievable breakdown as grounds for divorce, in the case of Vishnu Dutt Sharma versus Manju Sharma, 2009 (3) SCALE 425.

Vishnu Dutt Sharma and Manju got married on February 26, 1993, and had a daughter in December 1993. Sharma filed a petition for divorce alleging that soon after the marriage his wife started behaving cruelly towards both him and members of his family. He alleged that she did not stay for more than 25 days in the matrimonial home. Further, that on May 19, 1993, whilst still pregnant, she left the house and never returned. According to Sharma, Manju’s father, a retired Delhi police sub-inspector, and brother, a constable, both used to threaten him with implication in false cases.

In reply to the petition, Manju stated that on September 14, 1994, her husband and members of his family beat her up badly, causing her to be taken to the Ram Manohar Lohia hospital. A copy of the relevant extract of the medico-legal case register was produced before the trial court. Manju also alleged that her husband and mother-in-law had taken her jewellery and given it to her husband’s brother’s wife. When Manju asked for her jewellery back she was assaulted again and an attempt was made by members of her husband’s family to burn her alive.

The trial court examined the evidence produced before it and arrived at the conclusion that no case of cruelty by the wife had been made out, as alleged by the husband. The trial court observed that considering that Manju had been turned out of the matrimonial home and had been beaten, leading to a medical examination, it was the wife who had been treated cruelly by the husband.

Sharma appealed against the non-granting of divorce by the trial court to the high court. The high court observed that all the evidence showed that it was the wife who had been beaten and mistreated by the husband. It dismissed the appeal saying that granting the husband a divorce on grounds of irretrievable breakdown of marriage, when it was the wife who had suffered, would not be doing justice in the circumstances. The husband appealed to the Supreme Court.

The Supreme Court accepted the findings of fact established in the lower courts that it was the husband who had treated his wife cruelly rather than the other way around, as alleged in the petition for divorce. It was argued on behalf of the husband that the marriage be dissolved on grounds of irretrievable breakdown. The court referred to Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) and observed that there were several grounds for granting a divorce, such as adultery, cruelty, desertion, etc. But no such grounds of irretrievable breakdown of marriage are provided by the legislature for the granting of a divorce. The judgment held that the court could not add such grounds to Section 13 as that would be an amendment of the Act, which was a function of the legislature.

It was submitted on behalf of the husband that the Supreme Court had, in earlier cases, dissolved a marriage on grounds of irretrievable breakdown. The court observed that the earlier cases had not taken into account the legal position as laid down in Section 13 of the Act. The judgment held that a mere direction of the court in earlier cases, without considering the legal position, was not a precedent to be followed by the courts. The court observed that the granting of divorce on grounds of irretrievable breakdown would mean adding a clause to Section 13 of the Act through a judicial verdict. It held that adding a new clause making irretrievable breakdown of marriage grounds for a divorce could only be done by the legislature, not by the courts. Taking this into consideration, the Supreme Court rejected Sharma’s plea for dissolution of the marriage on grounds of irretrievable breakdown of marriage.

This judgment bucks the judicial trend that was moving towards making irretrievable breakdown grounds for divorce, and assumes relevance in the debate about retaining -- or jettisoning -- the “fault theory” of divorce. The facts of the case, with the husband treating the wife cruelly and then seeking a divorce on grounds of irretrievable breakdown of marriage, seem to underline the concern that these new grounds could well work against the interests of women.

However, the present scenario of inconsistent judicial verdicts based on the inclinations and opinions of individual judges is not a desirable state of affairs either. The fate of individual lives cannot be left to the opinions of the court bench hearing the matter. The law with respect to irretrievable breakdown as grounds for a divorce needs to be settled once and for all, in the best interests of society.

(Rakesh Shukla is a Supreme Court lawyer)

Infochange News & Features, August 2009