Introduction

A 5-judge Constitution bench of the Supreme Court in the case of Shilpa Sailesh v. Varun Sreenivasan (2014), has dissolved a marriage on the ground of irretrievable breakdown by exercising the powers granted to it under Article 142 of the Constitution of India, 1950 (COI).

The Apex Court has thus shifted from the concept of fault-based theory that till now formed the primary ground for dissolution of marriage.

What is the Background of this Case?

• In the year 2014, the parties of the case moved the Supreme Court to grant them divorce.
  • The Supreme Court, while considering the above-mentioned case said that it has power to grant divorce under Article 142 of the Constitution of India (COI) without sending the parties to the Family Court.
    • The Supreme Court also considered the fact that if parties apply to Family Court, they usually have to wait for a period of 6-18 months to obtain a decree of Mutual Consent.
  • The Supreme Court had also commented that it has power to rule even in a case where either of the parties is not agreeable upon the point of divorce.

What are the Theories for the Dissolution of Marriage under Hindu Law?

Fault Theory

• Under the Fault theory alternatively known as the offence theory or the guilt theory, marriage can be dissolved only when either party to the marriage has committed a matrimonial offence.
• The Hindu Marriage Act, 1955 (HMA) allows divorce on the fault theory, and the same is enshrined under Sections 13(1), 13(1-A) and 13(2).
  • Section 13(2) allows a wife alone to seek divorce on additional grounds.

Mutual Consent Theory

• The underlying rationale behind this theory is that when two people have the freedom to marry by their free will, they should also be allowed to move out of the relationship of their own free will.
• This theory is however criticized on the ground that use of this theory may lead to immorality as parties may tend to dissolve their marriage even if there were slight incompatibility of temperament which would be in contradiction to the institution of Hindu Marriage which is considered a sacrament.
• Section 13B of HMA deals with the concept of divorce by mutual Consent.

Irretrievable Breakdown Theory

• The irretrievable breakdown of marriage is defined as such failures in the matrimonial relationships or such circumstances adverse to that relationship that no reasonable probability remains for the spouses to live together as husband & wife.
  • Such marriage should be dissolved with maximum fairness & as soon as possible to pave for a better future for both the spouses.
• The Supreme Court has evolved following points to be considered before concluding the marriage to have broken down irretrievably:
  • The time for which parties stayed together.
  • The time, the parties last cohabited.
  • Allegations made by parties against each other.
  • Order, if any, passed in a legal proceeding between the parties.
  • Attempts made to settle the dispute by the family.
  • The separation period should be more than 6 years.

What are the Legal Provisions in Relation to Divorce Under Hindu Law?

Divorce

• The concept of divorce has been introduced by HMA. Prior to the act, Hindu Marriage was considered an indissoluble union.
  • Sections 13, 13(1-A) and 13 (2) of HMA provide for the dissolution of marriage.
  • Section 19 of HMA deals with Jurisdiction with respect to presentation of petition.

Section 13 - Divorce —

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation. —In this clause, — (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground —

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground —

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (CrPC) or under the corresponding section 488 of the Code of Criminal Procedure, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;

(iv) that her marriage whether consummated or not was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation — This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976.

Section 13B - Divorce by mutual consent. —

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Section 19 - Court to which petition shall be presented—

Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction: —

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

Conclusion

• This is the first time that the court has drifted away from the fault theory provided by the Hindu Marriage Act, 1955. The Court adopted a practical approach which will aid the easier resolution of acrimonious matrimonial disputes.
• A statement made by Justice H.R.Khanna in 1978 “After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce” has been utilized by the Supreme Court while declaring that divorce should be seen as solution and an escape route out of a difficult situation.