A Good Divorce

May 3, 2023

Context:

Leaning on the “guiding spirit” of Article 142(1) of the Constitution to do “complete justice” in any “cause or matter”, a Constitution Bench of the Supreme Court said it could use this extraordinary discretionary power to grant divorce by mutual consent to couples trapped in bitter marriages.

Process followed now:

To grant divorce by mutual consent, involved the long process under Section 13-B of the Hindu Marriage Act.
- First, a couple seeking divorce by mutual consent had to file a joint petition in a local court.
- In it, they had to claim that they were living separately for a year or more and were unable to live together again.
- The duo had to then wait for six to 18 months before making a second motion before the same court.
- This “cool-off time”, they had to confirm their decision to divorce.
- Following which, the judge would make a formal inquiry before granting them a decree of divorce by mutual consent.
Under the Hindu Marriage Act, irretrievable breakdown of marriage is not yet a ground for divorce.

Aim of the Decision:

It aims to spare couples the “agony and misery” of waiting six to 18 months for a local court to annul it, as stipulated under Section 13B of the Hindu Marriage Act, 1955.

What the Court observed?

If a marriage is wrecked beyond hope, public interest lies in recognising this fact, not upholding a ‘married’ status regardless.
The Court said it could use Article 142 to quash pending criminal or legal proceedings, be it over domestic violence or dowry, against the man or woman.

Discretion with care:

In its judgment, there was a word of caution that the grant of divorce would not be a “matter of right, but a discretion which is to be exercised with great care, keeping in mind that ‘complete justice’ is done to both parties.”

Factors need to be consider before invoking Article 142 :

Duration of marriage, period of litigation, the time the couple has stayed apart, the nature of pending cases, and attempts at reconciliation. The Court will have to be satisfied that the mutual agreement to divorce was not under coercion.

Status of Divorce in India:

In India, while divorcees have doubled in number over the past two decades, the incidence of divorce is still at 1.1%, with those in urban areas making up the largest proportion.
Census 2011 revealed that the population which is “separated” is almost triple the divorced number.

Conclusion:

In a country which is largely poor, where gender discrimination is rife and many women are still not financially independent, the Court’s stress on “care and caution” and not to rush into a quick divorce must be welcomed.

News Source: The Hindu