The Supreme Court’s recent ruling on divorce has brought new hope for those trapped in meandering, unhappy marriages.
The verdict, according to which the top court can now grant divorce on grounds of “irretrievable breakdown of marriage” and waive the six-month waiting period under the Hindu Marriage Act, brings a new perspective to how stringently marriage was viewed under Hindu laws.
The five-judge constitution bench observed on Monday, 1 May, that "it would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue.”
What Exactly Does This New Verdict Change?
Previously, “irretrievable breakdown” of marriage was not one of the grounds on which divorce could be granted under The Hindu Marriage Act, 1955.
While the act (Section 13) mentions multiple grounds for divorce: cruelty, disease, desertion and so on, irretrievable breakdown hadn't so far found a mention there.
By recognising this as a valid ground, the apex court has paved the way for couples to seek separation without assigning fault or having to prove specific reasons like cruelty or adultery.
Invoking its special powers under Article 142, the court acknowledged that it was imperative for it to intervene in marital disputes for the sake of “doing complete justice.”
This approach is particularly relevant in cases where the husband and wife have lived separately for years, engaged in prolonged litigation, and reached a point where reconciliation is no longer an option.
It acknowledges the reality that sometimes people fall out of love or simply cannot coexist harmoniously for no fault of their own.
The Need For This Change
Compelling a couple to be with each other against their will is a gross violation of their fundamental right to privacy.
This often led to lengthy legal battles, stretching over five to seven years, before a final resolution was reached. In the majority of cases, cruelty became the primary ground for divorce, but its interpretation varied from case to case, causing confusion and unpredictability.
Now with this new order and the waiver of the waiting period, society will begin to acknowledge that not all couples need to be convinced that their marriages can be salvaged.
Meanwhile, the top court in its order has also listed out several factors essential for deciding if a marriage has broken down beyond repair.
The factors mentioned are:
1. The period of time the parties had cohabited after marriage;
2. When the parties had last cohabited;
3. The nature of allegations made by the parties against each other and their family members;
4. The orders passed in previous legal proceedings, and their cumulative impact on the personal relationship of the couple;
5. Whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc.
6. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.
Although not set in stone, this is crucial because this is the first time that a judgment lists such factors.
But Why Does The Supreme Court Need To Bother With Divorce Cases?
While a lot of people have argued that intervening in divorce cases will only add to the top court’s burden of cases, the contrary, is in fact, bound to happen.
Put simply, once the Supreme Court starts granting divorce decrees based on irretrievable breakdown of marriages, the lower courts will have to consider it as a valid ground too.
Once that happens, fewer cases will come to the top court and will be resolved at the family courts.
A Few Concerns Still Linger
While this is a groundbreaking verdict, it would be better if the court clarifies the grounds of irretrievable breakdown even further.
Moreover, in cases where the divorce has not been filed by mutual consent, this could end up causing more damage than good.
Note: In the judgment, the top court concluded that it can dissolve a marriage on grounds of irretrievable breakdown, even if one party is opposing the divorce.
For instance, in a divorce case I once argued, the husband and wife had been living separately for years but the wife wanted the marriage to continue because for her the stigma of being a divorcee outweighed being in a bad marriage.
The court had asked me to accept compensation on behalf of my client (the wife) but she refused because she came from an interior village in Uttarakhand and the stigma would make it impossible for her to continue with life.
While staying in a detrimental relationship for the fear of social stigma is not the best option, this is a good example of when and why courts need to exercise caution.
A Starting Point
This latest ruling is a welcome step because it removes the pressure from couples who are struggling already to survive in an unhealthy relationship that is not doing them any good.
But, there is more to be done.
Although courts should be careful while interfering with customs emanating from religious texts, they should treat this verdict as a starting point to intervene in stringent marital legislations and customs that infringe on fundamental rights and personal liberty.
(Ahmad Ibrahim is a Delhi-based lawyer. This opinion piece is as-told-to The Quint's Rohini Roy.)
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