Arguments That Reject Theory of Irretrievable Breakdown of Marriage Since It Is Sacrament Do Not Make Any Legal Sense: Jaising Tells SC

The five-judge Bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari. The Court is being assisted by Senior Advocates V. Giri, Dushyant Dave, Indira Jaising, and Meenakshi Arora. A request from Senior Advocate Kapil Sibal to be heard was also accepted. Justice Kaul noted –

"We are very hesitant to allow interventions because that will open the floodgates, but we will get the benefit of your submissions."

The deliberations were opened by Jaising, who analysed the meaning of marriage by placing reliance on how it has been understood by different courts of law. Her objective, she clarified at the outset, was to first distil the essential components of an ideal marriage, and then deliberate on the question of how to dissolve a marriage in which those fundamental elements were absent, while simultaneously maximising the welfare of the stakeholders, particularly the women and the children.

The matter is listed to be heard again on Thursday, September 29.

Background

Marriage under Hindu law has long been thought to be an indissoluble, sacramental union. When provisions for divorce were finally introduced by enacting the Hindu Marriage Act, 1955, they were relegated to the recesses of the 'fault theory', which necessitated the act of locating fault as a precondition for obtaining a divorce. However, the Law Commission recommended that the law be amended to provide for 'irretrievable breakdown of marriage' as an additional ground of divorce in its 71^st Report entitled "The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce" (1978) and again in its 217^th Report entitled "Irretrievable Breakdown of Marriage – Another Ground for Divorce" (2009).

The Marriage Laws (Amendment) Bill, 2010 (reintroduced in 2013 after inputs from stakeholders), which sought to add 'irretrievable breakdown of marriage' as a new ground for divorce in the Act, was never passed. Therefore, 'irretrievable breakdown of marriage', as it has been recognised by the Courts in course of the development of the jurisprudence of divorce, does not yet exist as a statutory ground.

The Supreme Court, however, at times, has invoked its omnibus powers under Article 142 to dissolve marriages on the ground that they have broken down without the possibility of reconciliation. In 2015, the apex court while hearing a batch of transfer petitions relating to matrimonial disputes in Shilpa Sailesh v. Varun Sreenivasan, noted the large volume of such requests. Consequently, after disposing of the cases on their merits, the Court issued an order reported at (2016) 16 SCC 352 stating –

"Notwithstanding the above order passed by us, for the purposes of statistics the present transfer petitions shall remain pending as we are of the view that an issue of some importance needs to be addressed by the Court in view of the huge number of requests for exercise of power under Article 142 of the Constitution that has confronted this Court consequent to settlement arrived at by and between the husband and the wife to seek divorce by mutual consent."

The Bench led by Chief Justice Gogoi framed the following questions for determination by a Constitution Bench:

• What could be the broad parameters for exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act?
• Whether the exercise of such jurisdiction under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case?

Before the commencement of the hearings, Justice Kaul also noted that it was particularly difficult to reconcile competing claims when one party alleged an irretrievable breakdown of marriage but the other party resisted the efforts to dissolve the marriage. This, Justice Kaul, said was the "real concern". Therefore, the Constitution Bench issued an order on September 20 –

"We do believe that another question which would require consideration would be whether the power under Article 142 of the Constitution of India is inhibited in any manner in a scenario where there is an irretrievable breakdown of marriage in the opinion of the Court but one of the parties is not consenting to the terms."

Summary of Arguments

Senior Advocate Indira Jaising was one of the amici curiae appointed to assist the Constitution Bench in answering the questions that were referred to them by the Division Bench. Right at the beginning, she said that the third question with respect to granting of divorce on the ground of irretrievable breakdown of marriage in the absence of mutual consent was most significant. As a sequitur, Jaising also asked whether trial courts could also enjoy similar powers –

"I would like to carry the matter one step forward. Assuming the answer is yes, then the question is whether even the trial court can do it in exercise of powers under Section 151 of the Code of Civil Procedure."

Justice Kaul pointed out that the only impediment to granting trial courts the power was that the Parliament had not amended the relevant provisions, despite recommendations made by the Law Commission.

Jaising began her submissions by explaining how Courts have visualised what a marriage ought to be by referring to case law. The point of this exercise was, she clarified, to subsequently examine the question that if the fundamental elements of marriage were missing, and what could be done with the "empty shell". Noting the lacuna in matrimonial laws, Jaising noted –

"They tell you what is the capacity to marry, what is the formality required for marriage, and what is the way in which you can exit a marriage. But to the best of my knowledge, there are very few judgements that give us an idea of what marriage is all about. Perhaps it is incapable of definition, and that is why we do not find too many judgements…It is very important to address how, under different matrimonial laws and theories of justice, the institution of marriage is conceived?"

Jaising then contrasted Hindu law, under which there was "no specific provision saying that the two parties have to consent", and such consent was "implied from the fact that both of them have to have the mental capacity to marry" with other matrimonial laws with express provisions relating to consent. Justice Kaul interjected –

"Marriage under Hindu law is sacramental of character. When you perform the ceremonies of marriage, nobody can force you to take a Saptapadi."

Jaising disagreed, saying that there is no specific provision dealing with consent under Hindu law. She recollected –

"One of my clients was sending messages to the Police Commissioner alleging that her parents were forcing her to get married, while she was taking the 'saat pheras'. I filed an Article 32 petition in this Court saying where is the consent? This matter was settled and the parents agreed to not intervene if a prayer for divorce is made by the girl."

Jaising, however, said that she would like to proceed on the assumption that all marriages were "voluntary unions" between two people and required consent. None of the matrimonial laws in force in India defined marriage and elucidated "what happened during the subsistence of marriage", Jaising submitted. Therefore, she turned to the decision rendered by an Australian Court in Crabtree v. Crabtree [(1964) ALR 820 (10)], which was quoted with approval by a Division Bench of the Delhi High Court in Harvinder Kaur v. Harmander Singh Choudhry [AIR 1984 Del 66]. Referring to the mention of the "old common law dictum" that "a man and his wife are one person" in the excerpted passage, Jaising cautioned that those remarks needed to be "taken with caution" since the law of coverture, stipulating that a married woman did not have a separate legal existence, was abolished in England, and had no relevance in India where the right to autonomy was consecrated as a fundamental right.

Singh also observed, en passant –

"This is the case where the Delhi High Court refused to strike down Section 9 of the Hindu Marriages Act on the restitution of conjugal rights as unconstitutional. It was held that the introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. With great respect, I don't agree...I must mention that the challenge to restitution of conjugal rights is also pending in this Court and was listed a few days ago. So I will not get into that issue."

Jaising then relied on the meaning of marriage as explained in Sivasankaran v. Santhimeenal [2021 SCC OnLine SC 702] by a Division Bench headed by Justice Kaul. Jaising quoted from this judgement –

"…Families are arranged on the idea of a mutual expectation of support and amity which is meant to be experienced and acknowledged amongst its members. Once this amity breaks apart, the results can be highly devastating and stigmatizing. The primary effects of such breakdown are felt especially by women, who may find it hard to guarantee the same degree of social adjustment and support that they enjoyed while they were married."

Jaising enquired –

"What happens when the amity…the expectation of amity is gone? Can you still continue to call it a marriage? And if you cannot, then, what are the powers of the Court to legally set the marriage asunder?"

Jaising also pointed out that because marriage and divorce were "declarations to the world at large", they were considered a matter of status in rem and not status in personam. This was why, Jaising explained, the power to grant a divorce is vested in a competent court of law. The senior counsel observed –

"So the competent court of law has to look into all these other matters before pronouncing a decree for divorce because it has ramifications for people beyond the two. I will link this up with my argument as to why the court ought to grant a decree for an irretrievable breakdown, where all the factors that are essential for marriage have disappeared. The only question that remains is how to separate amicably, keeping in mind the welfare of particularly the wife and the children."

Further, Jaising submitted that not only was it necessary to "get into the difference between the fault theory of divorce and the no-fault theory of divorce" to answer the present questions, but it would also have to be acknowledged that there was "an overlap" between the two –

"There is always a claim and a counterclaim. The question, then, is whether the court will still look at the fault theory. The fault theory in Indian law is smuggled in through Section 23A. No person can take advantage of their own wrong. Sometimes, Your Lordships have used the expression, "People who come to court must come with clean hands." That is the limited role of the fault theory. It has no role beyond that."

Finally, Jaising also vehemently denied the need to rely on ancient treatises like the Manusmriti –

"Social norms are not static. It is no longer possible to argue a case of this kind or any matrimonial issue by relying on the laws of Manu. Arguments that reject the theory of irretrievable breakdown of marriage on the ground that marriage is a sacrament do not make any legal sense."

Justice Kaul said in response –

"Marriage was treated as a sacrament. In 1956, we introduced a divorce provision. That in a sacramental marriage, divorce can take place is known. The question is, in that divorce proceedings, does fault need to be attributed to someone?

Observations of the Court

Right at the outset, Justice Kaul observed with respect to the need and scope of the present reference –

"There are a number of cases coming up arising from such a scenario. Sometimes Courts have exercised, sometimes, they have not exercised. It arises at times when parties have been living apart for 15-20 years…You know there is nothing left in the marriage. Then should the Court exercise Article 142? Or, in other words, should the power under the article be curtailed or completely inhibited with respect to such cases?"

Justice Kaul also observed that the "ground reality" in the landscape of divorce was inconsistent with the provisions made by the Parliament –

"The issue is that under the Hindu Marriage Act, divorce is based on a fault theory. But irretrievable breakdown is a ground reality. Two very good people may not be good partners. These people may have lived together for considerable periods of time. Then the marriages have broken down… If the court comes to the conclusion that a marriage is not capable of reconciliation, then there is no point in a marriage in which the fundamentals of the marriage are absent. The only other thing is subject to what terms the marriage should break."

The Court also analysed the predominant 'fault theory' in the context of gendered roles and expectations, Justice Kaul holding –

"What we attribute as fault is not really a fault but is an understanding of a social norm…How a thing is ought to be done. But the ground reality is, these norms change rapidly."

Case Title

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

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