How To Decide If A Marriage Has Irretrievably Broken Down? Supreme Court Indicates Factors

In a significant judgment, the Supreme Court has held that it can dissolve marriages on the ground of 'irretrievable breakdown of marriage', by invoking the powers under Article 142 of the Constitution, as per which the Supreme Court can issue extraordinary directions to do "complete justice".

It may be noted that "irretrievable breakdown of marriage" is not a statutorily recognised ground for divorce. Therefore, the issue was referred to a Constitution Bench to decide whether the powers under Article 142 can be invoked to dissolve marriage on a ground which is not statutorily accepted. While answering the issue in the affirmative, a 5-judge bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari observed, "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".

Apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases, opined the bench. "Fault theory" (by which marriages are dissolved only if a statutorily recognized fault is found on the part of one of the spouses) can be diluted by this Court to do ‘complete justice’ in a particular case.

Adopting a practical approach which will aid the easier resolution of acrimonious matrimonial disputes, the bench observed :

"The 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".

Factors to be considered to hold that a marriage has irretrievably broken down?

The judgment authored by Justice Sanjiv Khanna refrained from laying down concrete factors which should be considered to decide if a marriage has been irretrievably broken down. However, the judgment specified certain broad factors, which are illustrative.

The Court should consider factors such as :

• the 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;
• the 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, etc.
• 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.

"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", the Court stated.

 Grant of divorce on the ground of irretrievable breakdown of marriage

The judgment clearly stated 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.

"This Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established".

For reports about other angles in the judgment, refer here.

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