Tag: marriage

INTRODUCTION

In India, marriage is considered a sacred union between two bodies of opposite sexes. Sharing a common room, their life, and the commitment to live with each other makes it unbreakable bondage not only for one life but for seven lives. It is believed that when two souls will unite in every sense that is physical, mental, and psychological, a new soul will come into existence which is termed “PROGENY” which is very important and that is how life will move ahead. It is believed that this relationship is built by God in Heaven and no one should question this, even the “Husband and Wife”. But what if one of the spouses isn’t happy with this sacramental knot and wants to break it? Is he or she allowed to do so?

The answer changes with time. Before this century, even the thought of separation was deemed to be a very sinful thing but today it is not. The main reason behind this is that people are now more advanced. The development in the field of communication, education, understanding, and societal norms has developed the social strata of society. People have now started giving importance to their mental health and that is good in every sense.

BACKGROUND

Historically, there is no proper law that considers the ground of “Irretrievable Breakdown of Marriage” for the ground of Divorce. Under the Hindu Marriage Act, 1955, Section 13 deals with the various ground on which divorce can be obtained. They are:

Fault Ground [Section 13(1)]

1. Desertion, Adultery, Cruelty, Insanity, Leprosy, and Venereal Disease¹.
2. Apart from this, Conversion and Renunciation of the world can also be used as a valid ground for Divorce in Hindu Religion. Under this case, 2 conditions should be met and they are:
3. The spouse has ceased to be a Hindu, and
4. He or she has converted to another religion².

In the case of Teesta Chattoraj vs. Union of India³, the court held that conversion of religion by one spouse can be used as a valid ground for divorce. Similarly, in the case of Sital Das vs. Sant Ram⁴, the court held that if someone undergoes the traditions, rites, and ceremonies of religion, that person will be considered to have entered the religious order but if that individual cohabits then it cannot be considered a valid ground because he or she has no longer renounced the world.

Divorce by Mutual Consent [13B (1)]⁵

According to this section, if the spouses are not happy with each other and want to separate and lead a new life away from each other, they can file for divorce based on the ground of “Divorce by Mutual Consent”.

Customary Divorce [Section 29 (2)]⁶

Proceeding further, Section 27 and Section 28 of the Special Marriage Act, 1954⁷ also deals with the grounds of divorce in a solemnized marriage. But nowhere it is explicitly mentioned that the ground of “Irretrievable breakdown of Marriage” is a valid ground. In this respect only, the Law Commission of India in its 71^st Report recommended that the ground of “Irretrievable Breakdown of Marriage” should be explicitly mentioned and stated in the Hindu Law. But this lapsed as there was a high level of resistance and lack of support from some major women-led NGOs. The reason which was put forthwith was that the ground of “mutual consent” already covers this and a new addition will only complicate things further.

In the case of Munish Kakkar vs. Nidhi Kakkar⁸, the court itself expressed that a dead letter marriage would only create a strenuous relationship between the spouses. It would be better if they split and move ahead in their lives “as the recognition of the futility of a completely failed marriage being continued only on paper….”

That is why, in the case of Naveen Kohli vs. Neelu Kohli⁹, the Supreme Court itself stated that adding the ground of “Irretrievable breakdown” in the Hindu Marriage Act, 1955 is reasonable. The individuals are right if they go with this option.

LEGAL FACET

Though there is no specific provision present in the current judicial system, there are instances where the Supreme Court has collapsed the marriage on the ground of irretrievable breakdown under the power conferred by Article 142 of the Constitution of India.

In the case of Pramod Kumar Mittal and Another vs. Kanchan Devi¹⁰, the Court exercised its power under Article 142 of the Constitution of India and dissolved the marriage between the appellant and the respondent. Here, there were 4 daughters also who were born out of wedlock but the Court maintained that the husband is maintaining them till now and he will continue to do so. A reasonable opportunity will be given to the wife to meet her daughters if she has any intentions or desire for doing so.

Similarly, in the cases of Sanghmita Ghosh vs. Kajal Ghosh¹¹, Samar Ghosh vs. Jaya Ghosh¹², K Srinivas Rao vs. D.A. Deepa¹³, Sukhendu Das vs. Rita Mukherjee¹⁴, the court exercised its power under Article 142 and dissolved the marriage on the ground of “Irretrievable Breakdown”.

And, the recent case in this regard is R. Srinivas Kumar vs. R. Shametha¹⁵. Here, the petitioner claimed that he suffered mental cruelty because of the respondent and that is why he filed for divorce under the Section 13(1)(i-a) and (ib) of the Hindu Marriage Act, 1955 which was dismissed in the Family Court as the husband failed to prove the ground of cruelty. When he then appealed to the Higher Court, it was again dismissed. After this, he moved to the Supreme Court and presented his case where it was mentioned that both the spouses are not living with each other for the past 22 years and this should be considered as a ground for an “Irretrievable Breakdown” of marriage. Then, the SC exercised his power under Article 142 and granted Divorce.

Sometimes, there are situations like when the spouses cannot bear each other in a matrimonial relationship for even the time period of 1 year or 6 months. In that case, the SC did exercise its power again and dissolved the marriage. This was done in the case of Manish Goel v. Rohini Goel¹⁶, where the court held that “the court is competent to waive of the statutory period of six months in the exercise of its jurisdiction under Article 142 of the Constitution.” This case is also important from the view that, in this case, the Court passed an order contrary to another law. Generally, no court has the power to issue a direction that is in contravention of the statutory provisions because courts are the institutions that are meant to enforce the rule of law and not pass an order which is in contravention of that. But in the case of, Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan¹⁷, the Court has held that the power under Article 142 of the Constitution of India is constitutional and therefore, cannot be restricted by any statutory enactments. This doesn’t mean that now the Court can act or pass an order which is inconsistent with the statutory enactments about the case. The power has to be exercised only in cases where existing provisions of the law are not able to bring complete justice between the parties.

Likewise, there are a series of Judgments where the Supreme Court pronounced judgments in the exercise of its power under Article 142 of the Constitution of India and granted divorce to the spouses who no longer wanted to live with each other in a matrimonial relationship because it continuity will only prove to be fruitless and further cause emotional roller coastal ride on the lives of the individuals involved. The sooner it ends, the better it would be for both parties as there is no reason of continuing or be tied in a sacramental knot that has no sense in reality.

CONCLUSION

No doubt marriage is an institution that is very pious and sacramental in its own sense. When it happens, there is a birth of a new soul in this world which only brings happiness and happiness. Not only that, but it also grants individuals some legal rights which are not in place when the individual is single. It is only extended to married people that are:

1. Right to inherit spouse’s property upon death
2. Right to receive spouse’s social security, pension, worker’s compensation, or disability benefits
3. Right to receive “marriage” or “family rate” on health, car, and/or liability insurance.

But still, that does not mean keeping two people in a relationship where both parties or even one party is unhappy. If the marriage proves to be meaningless and pointless, it should be dissolved. Apart from this, our legal judicial system cannot turn a blind eye when one or both parties find it laborious to continue in a relationship. It is a very miserable situation where only quarreling, bickering, bitterness, and many other things reside. And in that case, it cannot be said as an immoral activity when one party tries to break it. Because all the responsibilities and duties come after humanity. It is to be noted that “Irretrievable Breakdown of Marriage” is not a recognized ground for Divorce under the actual Hindu Marriage Act, 1955 or any law. It has been only accepted as a ground-based on precedents.

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REFERENCES

1. Hindu Marriage Act, 1955, Section 13(1).
2. ibid
3. Teesta Chattoraj vs, Union of India, 2012 SCC OnLine Del 1949 
4. Sital Das vs. Sant Ram, 2011 SCC OnLine Mad 681
5. Hindu Marriage Act, 1955, Section 13 (B) (1)
6. Hindu Marriage Act, 1955, Section 29 (2)
7. Special Marriage Act, 1954, Section 27 and 28
8. Munish Kakkar vs. Nidhi Kakkar, (2020) 14 SCC 657
9. Naveen Kohli vs. Neelu Kohli, 2006 (4) SCC 558
10. Kanchan Devi vs. Promod Kumar Mittal, (1996) 8 SCC 90
11. Sanghamita Ghosh vs. Kajal Ghosh (2007) 2 SCC 220
12. Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
13. K.Srinivas Rao vs. D. A. Deepa, (2013) 5 SCC 226
14. Sukhendu Das vs. Rita Mukherjee, (2017) 9 SCC 632
15. R. Srinivas Kumar vs. R. Shametha, AIR 2019 SC 4919
16. Manish Goel vs. Rohini Goel, (2010) 4 SCC 393
17. Laxmidas Morarji (DEAD) by LRS. vs. Behrose Darab Madan, (2009) 10 SCC 425

This article is written by Deeksha Singh, from Lloyd Law College, Greater Noida.

The two-Judge Bench comprising of Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy of the Supreme court opined that:
• A right or choice to marry is not anticipated to succumb to the concept of ‘class honor’
• The court also directed the police officials to put together guidelines and training programs as to dealing with ‘socially sensitive cases’

Facts:

One Mr. Chandaragi registered a missing complaint of his daughter Ms. Laxmibai Chandaragi, petitioner No.1 herein with the Murgod Police Station, Savadatti Taluk, Belagavi District stating that she was missing since 14.10.2020.
In the discharge of the complaint, of a missing person the investigation officer recorded the statement of the missing person’s parents and her relatives with requisite details.
It became evident that Miss. Laxmibai was in contact with Mr. Santosh Singh Yadav, petitioner No.2., by investigations of the call details.
In the course of the investigation Miss. Laxmibai, apparently without informing her parents, had traveled a long way by flight and reached Delhi to marry Mr. Santosh Singh Yadav.
She sent her marriage certificate to her parents on 15.10.2020 via an online medium and spill the beans of her marriage.
It is the case of the State that the IO proceeded to Ghaziabad to know the whereabouts of petitioner No.1 and on reaching the residence of petitioner No.2, was informed by his parents that they do not know the whereabouts of the petitioners. However, petitioner No.1 spoke to the investigating officer and notified them that she had already married petitioner No.2 with her own choice and was staying with him. But the IO instead insisted that petitioner No.1 should make her presence before the Murgod police station to record her statement so that the missing case can be closed. Petitioner No.1 sent a letter to the IO implicitly stating that she was married to petitioner No.2 and there was a possible threat from her parents and thus, was unable to visit the police station. The case was still not closed of a missing person by the IO.
The present writ petition has been filed under Article 32 of the Constitution of India since according to the petitioner there is an issue of duality of jurisdiction arising from her living with her husband, in the State of Uttar Pradesh while she came from Karnataka. It is the case of the petitioners that the uncle of the girl, petitioner 1 in the present case was threatening them on the account of their marriage. On the petitioners approaching the Allahabad High Court on 19.10.2020, seeking protection for themselves and the family members.
The Court concluded that the intervention of the Court would not have been a requirement in the provided facts of the case and if the IO would have conducted himself with more responsibility in terminating the complaint and if he would have wanted to record the statement of the first petitioner, should have given the information that he would visit her and he would have recorded the statement rather than putting her under the threat of action against the second petitioner to arrive at the police station. Reference of precedents, explaining that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into wedlock and that their consent has to be piously given primacy [Shakti Vahini v. Union of India (2018) 7 SCC 192].
The proceedings in connection to the missing complaint registered at Murgod Police Station, Belagavi District, Karnataka are quashed with the desire that the parents of petitioner No.1 will have a better sense to accept the marriage and re-establish social interaction not only with petitioner No.1 but even with petitioner No.2 [her husband] That, in our view, is the only way forward.
Under the mindset of caste and community to alienate one’s child and the son-in-law will hardly be a desirable social exercise.

Reported By – Anjali Singh