Right To Exit A Marriage A Fundamental Right, Locating Fault Not Necessary For Divorce: Indira Jaising Argues Before Supreme Court

The Constitution Bench was hearing a batch of petitions raising common questions of law, namely, whether it could exercise its powers under Article 142 to dissolve a marriage, what were the broad parameters to exercise such power, and whether the invocation of such extraordinary powers was allowed in the absence of the mutual consent of the parties. The five-judge Bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari. Among the amici curiae appointed to assist the court, was Jaising.

Jaising opened the deliberations on the day of the first hearing by analysing the meaning of marriage by placing reliance on how it had been understood by different courts of law. Her objective, she clarified at the outset, was to first distill the essential components of an ideal marriage, and then determine how to dissolve a marriage that lacked those fundamental elements. Maximising the welfare of the stakeholders, particularly the women and the children, was the primary objective.

Jaising on Thursday strenuously argued that the right to marry and the right to terminate the marriage were both fundamental rights enshrined under Article 21 –

"Right to marry is a fundamental right because it is a part of the right to form affiliations. It can be extended to the right to exit the affiliation…Unreasonable restrictions can be a ground to call into question a law."

Justice Khanna inferred –

"You basically want to give full autonomy to a person to continue or not to continue…"

Jaising agreed –

"That is why I have said that the right to enter a marriage and exit one are fundamental rights. There are systems of law where people can get unilateral divorces. Here, there is an intermediary, that is, the court. So we have to figure out the role of the court."

Jaising then proposed a limited role for courts in matrimonial disputes, observing that their only function was to attempt a reconciliation between the parties in the public interest.

"The court of law can at best attempt reconciliation in public interest and in the best interest of the children. There is already a standard for the grant of alimony…But for an emotional breakdown, there can be no standard. Therefore, if there is an irretrievable breakdown of marriage, it must receive the imprimatur of the court."

Jaising submitted that the apex court had in the past given liberal interpretations to statutes in order to enhance public welfare. Reliance was placed on Central Inland Water Transport Corporation v. Brojo Nath Ganguly [AIR 1986 SC 1571], where the Supreme Court had struck down a 'Henry VIII Clause' under Section 23 of the Indian Contract Act, 1872 as "opposed to public policy", despite there being no mention of such a ground. Jaising added that it was in the public interest to end marriages that could not be salvaged. This would safeguard the mental health and wellbeing of the parties, and would promote the best interest of the children born out of the union –

"It is in the public interest to dissolve marriages where there is an irretrievable breakdown of marriage because it would allow people to make the best of the rest of their lives."

She assailed the predominant fault theory on the ground that it had become obsolete in other jurisdictions. On the distinction between cause and fault, Jaising explained that even though divorce might be traced back to one or more causes, it would not always indicate that one party was at fault. She urged that the exercise of attributing fault to a spouse as a necessary precondition for obtaining a divorce was redundant –

"The only reason to reject a petition is if the court has come to the conclusion that it has not irretrievably broken down. But if it has broken down, then how does it matter who was at fault? In almost all cases of divorce, there are allegations and counter-allegations…Another situation is where a person who has been wronged does not want to put it in the public domain."

She also advocated a complete departure from the fault theory –

"It is Section 23 which brings in fault theory, and not Section 13 of the Hindu Marriage Act. 'Fault' within the meaning of Section 23 cannot be equated with the second. That is my interpretation of the statute. It was also recommended that Section 23 be deleted…"

Justice Kaul interjected –

"Where there are facts proving persistent cruelty for instance…There may be cases where the person suing for divorce is wholly responsible. Will that not be fault theory?"

Jaising supplied a rejoinder –

"No. If you conclude that the marriage has broken down, what is the point? What I am saying is, even if I am at fault, I cannot be disentitled from seeking a divorce."

On the issue of mutuality of consent for divorce, Jaising asserted that the autonomy of individuals in a marriage must be upheld under all circumstances –

"Marriage is between two people. but both people are autonomous…The way in which Your Lordships have framed the question places importance on 'mutual consent'. But consent here is irrelevant. The court is the arbiter, granting a decree of divorce."

Justice Khanna observed –

"Consent is not difficult to get when women are educated. But it becomes difficult where consent is not forthcoming for economic and social reasons."

Justice Kaul also chimed in –

"The younger generation is willing to accept separation, so long as a financial arrangement is made...I often find that social change usually finds it difficult to keep pace with the law. But here, the law has not kept pace with social change."

Jaising explained that in the absence of statutory provisions, the courts would have to turn to indicators of an irretrievable breakdown of a marriage. The failure of an attempt to make the parties reconcile was also indicative of the factum of 'breakdown' –

"How is a competent court to decide that there is an irretrievable breakdown of marriage? By attempting a reconciliation. But if the court fails, then they have to conclude that the parties cannot be forced to remain in the marriage. There are also proxy indicators of an irretrievable breakdown…Cruelty, desertion, separation, litigation, counter-litigation, etc."

Jaising also submitted that by recognising 'irretrievable breakdown of marriage' as a ground for divorce, the apex court would not "supplant statutory provisions, but merely supplement it." This would not be contrary to any statute, Jaising claimed.

Therefore, she recommended, Section 13 of the Hindu Marriage Act, 1956 could be given a liberal and expansive meaning so as to include 'irretrievable breakdown of marriage' as a ground for divorce. The senior counsel also suggested –

"The standard of proof should be the balance of probabilities, or lower...such as the perception test, which is used in sexual harassment cases. And the provision should have safeguards."

Finally, she submitted that the right to enter a marriage and the right to divorce were fundamental rights protected under the freedom to form associations enshrined in Article 19(1)(c) read with the right to life and liberty under Article 21.

In the course of her submissions, Jaising relied on, inter alia, V. Bhagat v. D. Bhagat [1994 SCC (1) 337], Ashok Hurra v. Rupa Ashok Hurrarupa Bipin Zaveri [(1997) 4 SCC 226], Naveen Kohli v. Neelu Kohli [AIR 2006 SC 1675], and Sivasankaran v. Santhimeenal [2021 SCC OnLine SC 702].

The Constitution Bench on Thursday finished hearing the submissions made by the amici curiae as well as the counsel in other connected matters. The Court has reserved its judgement.

Case Title

Shilpa Sailesh v. Varun Sreenivasan [TP(C) No. 1118/2014] and other connected matters