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A DETAILED STUDY ON SUPREME COURTS POWER UNDER ARTICLE 142 IN RELATION WITH DECREE OF DIVORCE
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A DETAILED STUDY ON SUPREME COURT'S
POWER UNDER ARTICLE 142 IN RELATION WITH DECREE OF DIVORCE
AUTHORED BY - DR. C. USHA
ABSTRACT
This paper delves into the
transformative implications of the Supreme Court's recognition of
irreconcilable marriage breakdown in the case of Shilpa Sailesh vs Varun
Sreenivasan. By invoking Article 142(1) of the Indian Constitution, the court
showcases a progressive interpretation of family law, acknowledging the
evolving nature of societal norms and individual autonomy. However, alongside
this recognition comes the need for clear guidelines to prevent potential
misuse of discretionary powers. This abstract underscores the significance of
striking a balance between judicial intervention and legislative intent to
ensure fairness and consistency in divorce proceedings, thus contributing to
the ongoing evolution of family law in India. The case of Shilpa Sailesh vs
Varun Sreenivasan represents a significant milestone in Indian family law, as
the Supreme Court's interpretation of irretrievable marriage breakdown under
Article 142(1) of the Constitution reshapes the discourse surrounding divorce.
This abstract examines the transformative potential of the judiciary in
recognizing evolving societal norms and individual autonomy, while also
addressing concerns about potential misuse of discretionary powers. The
analysis highlights the importance of balancing judicial intervention with
legislative intent to ensure fairness and consistency in divorce proceedings,
thereby contributing to the ongoing evolution of family law in India.
INTRODUCTION
"In the ashes of an
irretrievable breakdown, new beginnings can emerge, stronger and wiser than
before.” - Unknown
In recent years there were some
important cases filed in the Supreme Court which are related to Irretrievable breakdown of marriage.
Irretrievable Breakdown of Marriage is when, despite the parties’ best efforts,
their marriage cannot be restored to as it was before. It is often used as a
no-fault ground for divorce, meaning that neither party needs to prove that the
other is at fault for the breakdown of the marriage. In India divorce is often
considered to be an alien concept and the women in Indian culture always
restrict to go to such extent in their marriage. In recent years divorce has
been prevelant in Indian society. We can neither take it as a positive and nor
as a negative statement to the social structure of families in India. It can be
taken as a Freedom of Choice and it can also be taken as an increase
unsustainable relationship due to various factors like urbanization and
degradation of Joint family system.
The Supreme Court of India has a
larger amount of power under Article 142 of the Constitution to render Complete
Justice. The legal maxim "actus
curiae neminem gravabit," which translates to "an act of the court
shall prejudice no one.
While Defining Complete Justice and
Article 142 in the case of M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors[1]" This
provides the role of Supreme Judiciary of India to provide complete Justice.
“The phrase ‘is necessary for doing complete justice’ is of a wide amplitude
and encompasses a power of equity which is employed when the strict application
of the law is inadequate to produce a just outcome. The demands of justice
require a close attention not just to positive law but also to the silences of
positive law to find within its interstices, a solution that is equitable and
just. The legal enterprise is premised on the application of generally worded
laws to the specifics of a case before courts.”
DIVORCE AN INTERNATIONAL HUMAN RIGHT UNDER UDHR
Divorce has been considered to be a
fundamental Human Right under UDHR as equal as the Right to Marriage.
“Article 16
(1) Men and women of full age, without
any limitation due to race, nationality or religion, have the right to marry
and to found a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution.
(2) Marriage shall be entered into only
with the free and full consent of the intending spouses.
(3) The family is the natural and
fundamental group unit of society and is entitled to protection by society and
the State.”
IRRETRIEVABLE BREAKDOWN OF MARRIAGE
This kind of divorce takes place
because of irreconcilable differences that arise in between the married
spouses. This leads to a new ground for divorce. There is another kind of
divorce which is similar in nature of this kind and which is ‘Mutual Consent’.
Irreconcilable Differences are common
in every kind of relationship. Let it be in between Husband and Wife or in
between family members or in between business partners.
Thirukkural addresses the concept of
irreconcilable differences through the lens of relationships, enmity, and
disunion. It warns that a family divided by internal hatred cannot genuinely
unite, drawing an analogy with a casket and its lid that fit together but do
not merge into one. It is advised to avoid actions born out of hatred, as they
are considered harmful. The kurals also speak about the importance of
reconciliation to heal feigned disagreements and the value of letting go of
friendships with those who are fundamentally incompatible.
“???????? ?????????????
???????? ??????
It means As casket with its cover,
though in one they live alway, No union to the house where hate concealed
hathaway.
Marriage, often celebrated as a
sacred institution, has faced significant challenges in India, leading to
irretrievable breakdowns. To understand the complexities surrounding this
issue, let's draw some insights from news incidents that shed light on the
factors contributing to the breakdown
of marriages in the country.
Changing Dynamics of Relationships: In recent years, India has witnessed a shift in
societal norms and values, impacting the dynamics of relationships, including
marriage. With the advent of globalization and exposure to diverse cultures,
traditional norms regarding marriage, such as arranged marriages and familial
control, are being questioned. Individuals are increasingly seeking autonomy
and agency in choosing their life partners, often leading to conflicts within
families and communities.
Economic Pressures and Financial Strain: Economic pressures play a
significant role in straining marital relationships. Financial instability,
unemployment, and disparities in income can create tension and discord between
spouses. News incidents frequently highlight cases where financial strain
becomes a catalyst for marital discord, leading to irreconcilable differences
and eventual breakdowns.
Legal and Social Stigma: Despite legal reforms aimed at providing recourse for
individuals in unhappy marriages, social stigma continues to surround divorce
in India. News incidents often underscore the challenges faced by individuals
seeking divorce, including societal pressure, family ostracization, and
financial implications. The fear of judgment and shame associated with divorce
can deter individuals from seeking separation even in untenable circumstances,
prolonging their suffering.
Gender Dynamics and Patriarchal Structures: India's patriarchal society often
exacerbates issues within marriages, particularly concerning gender dynamics
and power imbalances. News incidents frequently report cases of domestic
violence, dowry harassment, and marital rape, highlighting the pervasive nature
of gender-based violence within marital relationships. The unequal distribution
of household responsibilities and decision-making authority further strain
marriages, contributing to their breakdown.
Legal Framework and Support Systems: While legal provisions exist to address marital
disputes and provide relief to individuals in distressing marriages, their
efficacy remains a subject of debate. News incidents often underscore the
inadequacies of the legal system in providing timely and adequate redressal to
victims of marital discord. Additionally, the lack of accessible support
systems, such as counseling services and shelters for victims of domestic
violence, further compounds the challenges faced by individuals seeking to end
unsustainable marriages.
The irretrievable breakdown of
marriage in India is a multifaceted issue influenced by changing societal
norms, economic pressures, legal complexities, and patriarchal structures. News
incidents offer valuable insights into the factors contributing to marital
discord and highlight the urgent need for comprehensive reforms to address
these challenges. Efforts to destigmatize divorce, promote gender equality,
strengthen legal frameworks, and enhance support systems are essential to
mitigate the prevalence of irretrievable breakdowns of marriage and ensure the
well-being of individuals and families in India.
Case :- Shilpa Sailesh v. Varun
Sreenivasan
Fact of the Case:-
The case at hand stands as an epitome
of a prolonged and deeply entrenched marital dispute between Shilpa Sailesh and
Varun Sreenivasan, spanning over six tumultuous years, unrivaled in its
complexity and legal intricacies. Their relentless pursuit of justice through
multifaceted legal avenues, encompassing domestic violence proceedings and
criminal prosecutions under Section 498-A of the Indian Penal Code, sets a
benchmark for the tenacity exhibited in seeking resolution. At every juncture,
the couple's fervent endeavors for reconciliation, amidst allegations of
cruelty, misconduct, and financial discord, surpass the norm, showcasing an
unparalleled determination to salvage their fractured relationship. The saga's
escalation to the apex court, propelled by conflicting testimonies and
unresolved marital grievances, underscores the unparalleled gravity of the
case, necessitating the highest judicial intervention to render a definitive
judgment. Amidst the labyrinth of legal provisions, including Article 142(1) of
the Constitution of India, Section 13-B of the Hindu Marriage Act, and the
Domestic Violence Act, the case emerges as a quintessential exemplar of legal
complexity and the pursuit of justice in the realm of matrimonial discord.
Issues framed:-
Issues:
?
Whether
Article 142(1) allows deviation from established procedural and substantive
laws.?
?
Whether,
upon settlement, the court can dissolve a marriage by mutual consent, bypassing
procedural requirements in Section 13-B of the Hindu Marriage Act?
?
Whether
the court can grant divorce under Article 142(1) of the Constitution in cases
of irretrievable breakdown, even if one spouse opposes?
?
Whether
a uniform law recognizing irretrievable breakdown of marriage as a ground for
divorce should be applicable to all, irrespective of religion and caste?
Decision of the Court:-
?
The
court affirmed Article 142(1) permits deviation from established laws when
necessary.
?
The
court affirmed its discretion to allow dissolution in such cases.
?
The
court ruled in favour of granting divorce in such situations.
?
The
court didn’t explicitly state, but the judgment implied a broader recognition
of irretrievable breakdown as a valid ground for divorce, irrespective of
religion and caste.
Judgment in Detail:-
In its ruling, the Supreme Court
meticulously examined key matrimonial statutes, including Section 13-B of the
Hindu Marriage Act and Article 142(1) of the Constitution, showcasing a keen
dedication to harmonizing legal mandates with the evolving societal landscape.
By invoking Article 142(1) of the
Constitution, the Supreme Court asserted its authority to grant a divorce by
mutual consent, bypassing the procedural requisites delineated in Section 13-B
of the Hindu Marriage Act. This verdict, which favored petitioner Shilpa
Sailesh, acknowledged an irretrievable breakdown marked by profound issues of
trust and communication, rendering reconciliation futile.
The judgment underscored that the
discretionary power under Article 142(1) of the Constitution is designed to
facilitate complete justice, unencumbered by the fault-finding ethos inherent
in Section 13(1)(i-a) of the Hindu Marriage Act. Moreover, the Court
articulated that the exercise of this discretionary authority must be guided by
considerations of fairness, public policy, and the overarching objective of safeguarding
the welfare of the parties involved.
The recognition of irretrievable
breakdown as a legitimate ground for divorce represents a transformative
milestone in family law, signaling a departure from fault-based paradigms
towards a more holistic and welfare-oriented approach to justice. This
departure underscores the judiciary’s responsiveness to the complexities
inherent in marital discord, prioritizing individual well-being over rigid
fault-centric frameworks.
In emphasizing irretrievable
breakdown, the Court called for a comprehensive assessment encompassing
economic, social, and child welfare considerations. Leveraging its powers under
Article 142(1), the Court dissolved the marriage and dismissed related legal
proceedings, prioritizing fairness and the welfare of the parties over strict
procedural formalities. The acknowledgment of factors such as separation
duration, child welfare, alimony, and economic rights underscores the Court’s
commitment to a nuanced understanding of marital complexities and its proactive
role in promoting equality and justice in family law.
By emphasizing its authority under
Article 142(1) while remaining cognizant of the procedural requirements of the
Hindu Marriage Act, the Court strives to strike a balance between legal formalism
and effective, equitable justice. This balanced approach underscores the
Court’s dedication to decisions that are not only legally sound but also
sensitive to the intricacies of human relationships within marital disputes.
Analysis and Commentary on Shilpa Sailesh vs Varun Sreenivasan Case
In the case of Shilpa Sailesh vs
Varun Sreenivasan, the judiciary's pivotal role in reshaping perceptions
surrounding marriage, divorce, and family law in India is evident. Notably, the
court's interpretation of divorce grounds, particularly recognizing
irretrievable breakdown as valid, reflects evolving societal norms. This
progressive stance aligns with global family law trends, albeit concerns linger
about potential misuse of discretionary powers, necessitating clear guidelines.
The utilization of Article 142(1) of
the Indian Constitution to dissolve the marriage underscores the judiciary's
commitment to justice and individual autonomy. By leveraging this provision,
the court reaffirms fundamental rights and addresses legislative gaps,
showcasing a proactive approach to societal needs. However, criticisms
regarding erosion of legislative intent and lack of objective criteria for
discretionary powers warrant attention.
Furthermore, the expansive
interpretation of judicial discretion raises concerns about potential misuse
and departure from established legal procedures. Such deviations may undermine
legal precedent and burden the judiciary, impacting the efficiency of the legal
system. Thus, while the judgment signifies a progressive step in family law,
mitigating these concerns is essential for ensuring fairness and consistency in
legal outcomes.
OWENS V OWENS - THE SUPREME COURT OF UNITED KINGDOM
Facts of the Case:-
The case background unfolds a
familiar narrative: Mr. and Mrs. Owens entered matrimony in 1978, raising two
grown children along the way. Facing marital discord, Mrs. Owens sought legal
counsel in June 2012, signaling the onset of turbulence in their relationship.
By February 2015, Mrs. Owens vacated the marital abode, marking the cessation
of cohabitation after nearly four decades of marriage. At 80 and 68 years old,
respectively, they embarked on separate paths. In a pivotal move, Mrs. Owens
initiated divorce proceedings in May 2015, invoking section 1(2)(b) of the
Matrimonial Causes Act 1973. This provision necessitates evidence of behavior
by the respondent rendering continued cohabitation unreasonable for the
petitioner. Typically, such petitions progress smoothly, but Mr. Owens
contested the allegations, disputing their sufficiency to meet the legal
threshold. Despite acknowledging the irretrievable breakdown of the marriage
and Mrs. Owens' inability to reside with Mr. Owens, the trial judge ruled in
favor of Mr. Owens, dismissing the petition. Mrs. Owens pursued appeals to both
the Court of Appeal and the Supreme Court, seeking redress for what many
perceived as a setback for the cause of 'no-fault divorce.' However, the
Supreme Court unanimously upheld the lower court's decision, emphasizing its duty
to interpret and apply existing law rather than reform it. Mrs. Owens'
contention centered on a nuanced interpretation of the statutory provision,
advocating for a focus on the effect rather than the conduct itself. Yet, the
Court deemed such an approach untenable, affirming the current interpretation.
In essence, the Court delineated a three-stage inquiry: examining the
respondent's behavior, assessing its impact on the petitioner, and determining
the reasonableness of continued cohabitation, thus maintaining the status quo
in matrimonial law interpretation.
Judgment :-
Lord Wilson acknowledged some
discomfort with the case, particularly regarding certain aspects. This unease
stemmed from references in the trial judge's ruling to "unreasonable
behavior," which Lord Wilson clarified is not a prerequisite for a
successful petition. Moreover, he highlighted that the behavior need not be the
cause of the marriage breakdown, and expressed concern over the consideration
of the "cumulative effect" of Mrs. Owens' allegations. Both Lord
Wilson and Lady Hale shared apprehensions about these points but emphasized
that the appeals courts were not the appropriate venue to address them given
the trial judge's conclusions. Lady Hale suggested that a rehearing might result
in a divorce decree, but Mrs. Owens did not pursue this option, leading to the
dismissal of the appeal. However, the case is far from closed. Mrs. Owens must
now wait until February 2020 to apply for a divorce based on five years'
separation, while the family law community continues to grapple with the
current legal interpretation. Although contested divorces are rare, this case
sets a precedent for respondents successfully opposing decree grants, prompting
reflection on the application of the law in future cases. Lord Wilson hinted at
the potential value of his judgment for future litigants invoking the
subsection, noting its evolution in response to changing social norms.
Additionally, he addressed procedural aspects that could be refined in future cases,
such as time estimates for hearings and the use of third-party witnesses.
Overall, the judgment adds to the growing calls for parliamentary reform of
divorce laws, as reflected in Lord Wilson's statement urging Parliament to
consider revising legislation that leaves individuals like Mrs. Owens without
recourse in similar circumstances.
Future Developments :-
All attention now shifts to the
Private Member’s Bill recently introduced by Baroness Butler-Sloss in the House
of Lords.The Divorce (etc.) Law Reform Bill stems from research conducted by
Professor Liz Trinder from the University of Exeter Law School, funded by the
Nuffield Foundation. This research reveals that the current divorce law is
exacerbating conflict and distress for couples and families. The bill mandates
the government to assess the existing divorce and civil partnership dissolution
laws and consider implementing a no-fault divorce system. This situation echoes
the landscape over 20 years ago with the Family Law Act 1996, which aimed to reform
divorce laws but ultimately remained partially implemented and later shelved.
Given the concerted efforts of family lawyers to mitigate conflict within
families, a law that perpetuates discord is deemed unacceptable. Perhaps it is
the law itself, rather than individual behavior, that is unreasonable. While
the Owens case doesn't offer a definitive solution, the bill is set to progress
to the House of Lords' second reading amid heightened attention to the issue.
Family practitioners will continue to advocate for parliamentary adoption of
the bill, pressing for the much-needed review of current laws.
CONCLUSION
The irretrievable breakdown of
marriage in India is a multifaceted issue influenced by changing societal
norms, economic pressures, legal complexities, and patriarchal structures. News
incidents offer valuable insights into the factors contributing to marital
discord and highlight the urgent need for comprehensive reforms to address
these challenges. Efforts to destigmatize divorce, promote gender equality,
strengthen legal frameworks, and enhance support systems are essential to
mitigate the prevalence of irretrievable breakdown of marriage and ensure the
well-being of individuals and families in India.
In conclusion, the landmark judgment
in Shilpa Sailesh vs Varun Sreenivasan underscores the Supreme Court's pivotal
role in recognizing irreconcilable marriage breakdown and addressing it through
Article 142(1) of the Indian Constitution. While this decision reflects the
judiciary's commitment to individual autonomy and evolving societal norms, it
also highlights the need for clear guidelines to prevent potential misuse of
discretionary powers. Moving forward, ensuring a balance between judicial
intervention and legislative intent is crucial for maintaining the integrity of
the legal system and promoting fairness in divorce proceedings.
REFERENCE
- P.M. Bakshi, Constitution of India: Bare Act with Short
Notes (Universal Law Publishing Co. Pvt. Ltd., 2020).
- Ratna Kapur, Irreconcilable Differences: Marriage,
Divorce and Family Law in India (Oxford University Press, 2014).
- Granville Austin, The Indian Constitution: Cornerstone
of a Nation (Oxford University Press, 1999).
- M.P. Jain, Indian Constitutional Law (LexisNexis, 7th
ed., 2019).
- Dr. Paras Diwan & Peeyushi Diwan, Family Law
(Allahabad Law Agency, 18th ed., 2021).
- Alok Prasanna Kumar, Article 142 of the Constitution of
India: A Critical Analysis, 2 Indian L. Rev. 78 (2018).
- Sairam Bhat, Article 142 of the Indian Constitution:
Scope and Limitations, 10 Indian J. Const. L. 45 (2015).
- Priya Gupta, Irreconcilable Marriages in India:
Legal Framework and Challenges, 25 J. Fam. L. & Prac. 132 (2020).
Article Information
A DETAILED STUDY ON SUPREME COURTS POWER UNDER ARTICLE 142 IN RELATION WITH DECREE OF DIVORCE
Authors: DR. C. USHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/16
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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