Divorce on ground of irretrievable breakdown of marriage not matter of right, several factors to be kept in mind: SC

New Delhi, May 1 (PTI) The Supreme Court said on Monday the grant of divorce by the apex court on the ground of irretrievable breakdown of marriage is not a “matter of right” but a discretion which is to be exercised with great care and caution, keeping in mind several factors to ensure complete justice’ is done to both parties.

A five-judge constitution bench headed by Justice S K Kaul said it is obvious that the top court should be fully convinced and satisfied that marriage is “totally unworkable, emotionally dead and beyond salvation” and therefore, dissolution of marriage is the right solution and the only way forward.

It said the marriage has irretrievably broken down is to be factually determined and firmly established and for this, several factors are to be considered — such as period of time the parties had cohabited after marriage, when the parties had last cohabited, the nature of allegations made by the parties against each other and their family members.

It said other factors which have to be considered included orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship, 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.

“The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.

“But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children,” said the bench.

The bench, which also comprised Justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari, said the question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations.

“We would not like to codify the factors so as to curtail exercise of jurisdiction under Article 142(1) of the Constitution of India, which is situation specific. Some of the factors mentioned can be taken as illustrative, and worthy of consideration,” it said.

The bench made these observations in its verdict which held the top court has the discretion to dissolve a marriage on the ground of “irretrievable breakdown” in exercise of its plenary power under Article 142 (1) of the Constitution and can grant divorce by mutual consent while dispensing with the 6-month waiting period mandated under the Hindu Marriage Act, 1955.

“Having said so, we wish to clearly state that grant of divorce on the ground of irretrievable breakdown of marriage by this court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that complete justice’ is done to both parties,” the bench said in its 61-page judgement.

It said the legislature and the courts treat matrimonial litigations as a special, if not a unique, category.

The bench noted given that there are multiple legislations governing different aspects, even if the cause of dispute is identical or similar, most matrimonial disputes lead to a “miscellany of cases” including criminal cases, at times genuine, and on other occasions initiated because of indignation, hurt, anger or even misguided advice to teach a lesson.

It noted that courts must not encourage matrimonial litigation and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations.

“Thus, adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end,” it said.

Referring to the issue of divorce under the Hindu Marriage Act, 1955, the bench said Hindu marriage is traditionally considered to be a sacred union, a devout relationship that lasts till eternity.

It said the provisions of the Hindu Marriage Act have undergone considerable changes over a period of time and section 13(1)(i-a) was enacted by the Marriage Laws (Amendment) Act, 1976 to provide for divorce in cases of cruelty and section 13-B was introduced for providing divorce by mutual consent.

It noted that section 13-B(1) of the Act states that a decree of divorce may be granted on a joint petition by the parties on fulfilment of the following conditions — the parties have been living separately for a period of one year or more before presentation of the petition; they have not been able to live together; and they have mutually agreed that the marriage should be dissolved.

The bench said sub-section (2) to section 13-B of the Act provides that after the first motion is passed, the couple or parties would have to move the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than 18 months of the first motion.

It noted that no action can be taken by the parties before the lapse of six months since the first motion and when the second motion is filed, the court is to make an inquiry and, on satisfaction that the averments made in the petition are true, a decree of divorce is granted.

“Clearly, the legislative intent behind incorporating sub-section (2) to section 13-B of the Hindu Marriage Act is that the couple/party must have time to introspect and consider the decision to separate before the second motion is moved,” it said.

The apex court said there are cases of exceptional hardship where after some years of acrimonious litigation and prolonged suffering, the parties, with a view to having a fresh start, jointly pray to the court to dissolve the marriage, and seek waiver of the need to move the second motion.

“On account of irreconcilable differences, allegations and aspersions made against each other and the family members, and in some cases multiple litigations including criminal cases, continuation of the marital relationship is an impossibility. The divorce is inevitable, and the cooling off period of six months, if at all, breeds misery and pain, without any gain and benefit,” it said.