Refusal To Dissolve Marriage Despite Its Breakdown Amounts To Mental Cruelty: Sr.Ad V Giri Tells 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 Giri.

Giri began his submissions by pointing out that the apex court had imposed only two self-restraints in the exercise of plenary powers under Article 142. Such exercise was tested on the touchstone of Part III of the Constitution. Secondly, it would also have to be exercised in a manner that did not violate any statutory provision.

After exploring the contours of the power contained in Article 142 and their limitations, the senior counsel argued that 'irretrievable breakdown of marriage' as a ground for divorce could be read into Section 13 –

"Textually, the law as articulated in Section 13 does not provide 'irretrievable breakdown of marriage' as a ground. This section does not provide an exhaustive enumeration of grounds. I am not saying anyone can invent a ground that does not fall strictly within the parameters of Section 13 and seek a divorce on the basis of that ground. That is not sufficient. But there is some indication why an 'irretrievable breakdown of marriage' could be used to grant a decree."

'Irretrievable breakdown of marriage' was subsumed under the broad ground of cruelty, Giri submitted. He traced the jurisprudential development of cruelty within the meaning of Section 13 of the Hindu Marriage Act, 1955 –

"The law as it stood originally dealt only with mental cruelty. But later, some years and decades back, this Court had said it could also be mental cruelty."

Then, relying on Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], where refusal to dissolve a marriage despite its breakdown was held to be mental cruelty, Giri asserted –

"The recalcitrance on the part of one of the parties not to consent for a dissolution of marriage despite its breakdown also amounts to cruelty. This Court may intervene in a situation like this."

Giri added –

"Where there is such unnecessary recalcitrance on part of one of the spouses, or where they have not been cohabiting for a long period of time, where they have been trading allegations, or where there is proof to show that one of them has been engaging in adulterous behaviour...These are certain grounds for intervention."

Justice Kaul interjected, pointing out the practical difficulty in enumerating all the situations that would warrant the activation of Article 142 –

"It may be difficult to think of all the innumerable situations that may arise with respect to an interpersonal relationship. The question is, are we entitled to exercise this power? Either we have a right or we don't have a right."

In response, Giri vehemently asserted that the powers under Article 142, in this case, were not circumscribed in any manner –

"Power under Article 142 is not cribbed, cabined, or confined by any restraint either flowing from the constitution, or for that matter, flowing from any express statutory provision. It is plenary in character. This is not a case where this Court will find that the power to do complete justice is not available. In fact, it would be an injustice to force two persons who cannot see eye to eye to remain in a marriage. This also throws the remaining members of the family into disarray. This would be a classic case of exercise of your powers under Article 142."

He argued that the Supreme Court would merely be devising a tool, and not violating any express provision by interpreting Section 13 to include irretrievable breakdown of marriage –

"And by exercising this power in this situation, this Court would neither infringe upon any fundamental right nor expressly contravene any substantive provision. This Court can simply look at the facts and circumstances of each case and answer whether mental cruelty is made out. There is no question of contravening any provision. This Court then, is only devising a tool."

Earlier Senior Advocate Indira Jaising had made a case for abandoning the predominant fault theory of divorce. Giri disagreed –

"However, this ground does not altogether jettison fault. Cruelty is based on the fault theory."

Turning next to whether similar powers were vested in other courts, Giri contended –

"But when it comes to the family court or the High Court dealing with this, it is a trickier situation."

Justice Khanna queried –

"But the judgement of Samar Ghosh was not rendered under Article 142. The ground of mental cruelty has been accepted. Why will the family court or the High Court not be able to press it into service?"

Giri conceded. Justice Khanna added –

"Article 142 is exercised by us where either this ground has not been specified, or where during the passage of litigation itself, this ground emerges."

In response, Giri drew a distinction between the powers of the Supreme Court and those vested in lower courts or the High Court with respect to dissolving a marriage on the ground that it had irretrievably broken down –

"For the family court or the High Court to grant a decree of divorce on the ground of irretrievable breakdown of marriage by bringing it under the broad heading of cruelty, there has to be a specific pleading alleging cruelty. Otherwise, the statutory provision will become completely casualised."

He continued –

"However, the Supreme Court is not limited by the same constraints that are applicable to the family court and the High Court, especially when in the exercise of its powers under Article 142. From the facts and circumstances of the case, this Court may infer the irretrievable breakdown of marriage and exercise such powers. In appropriate cases, where this Court finds that the parties should go their separate ways, it could interfere under Article 142 and waive off the cooling period."

Giri also outlined some of the broad parameters for the exercise of power under Article 142, namely, an expression of clear consent by parties to put an end to their marriage, the possibility of further disputes arising from the prolongation of cohabitation, and the absence of chance of reconciliation. He cautioned –

"There are illustrative. This Court may impose further conditions."

On the issue of waiving the cooling period, Giri submitted –

"Statutorily conferring the power to waive the cooling period on the family court is not required because this is where the matter comes as an original proceeding. The matter is different when it comes to the Supreme Court because the parties have been litigating for years."

Giri also disagreed with Jaising's proposition that the right to marry and the right to divorce were fundamental rights –

"The assertion that the right to get a divorce is also a fundamental right is stretching it a bit too far. It is not a matter that is engaging this Court's attention in these proceedings. Maybe some time later, when the law progresses…"

Justice Kaul seemed to concur –

"The time for that perhaps has not come yet."

In the course of his submissions, Giri referred to, inter alia, Prem Chand Garg v. Excise Commissioner, U.P Allahabad [AIR 1963 SC 996], Union Carbide [AIR 1990 SC 273], and Amardeep Singh v. Harveen Kaur [AIR 2017 SC 4417].

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