20-years to divorce! Well that’s quite normal and a regular for most men who are struggling to exit a bad abusive marriage in India. However, what makes the below case unique, is that the woman did not even live for one single day in her matrimonial home.
The Supreme Court on Monday finally dissolved two-decade-old marriage which was never consummated saying the couple never lived together even for a day and it appeared there was a crash landing at the take-off stage itself, reported PTI.
Marriage took place in February 2002. The man, who was working as an assistant professor, had told the apex court that the woman’s view was that she had been coerced into marrying him without her consent and she had left the marriage hall late at night.
Through the two decades, woman kept filing multiple cases on the man and contested divorce.
The apex court passed the decree of divorce dissolving the marriage not only in exercise of its plenary powers under Article 142 of the Constitution on account of Irretrievable Breakdown of Marriage, but also on account of cruelty under the provision of the Hindu Marriage Act in view of the conduct of the woman during the pendency of judicial proceedings.
It appears there was a crash landing at the take-off stage itself!
Conduct of Woman
The bench noted the conduct of the woman, who had resorted to filing multiple cases in courts against the man and also made representations to college authorities seeking initiation of disciplinary proceedings against him. The apex court said this conduct of the woman through these continuing acts would amount to cruelty.
The moot point is that the marriage has not taken of from its inception. There can hardly be any wear and tear of marriage’ where parties have not been living together for a long period of time. The parties, undisputedly, never lived together even for a day, it said, adding, The marriage was never consummated and the parties have been living separately from the date of marriage for almost 20-years.
Hindu Marriage Law
The top court said under the Hindu law, marriage is sacramental in character and is supposed to be an eternal union of two people and the society at large does not accept divorce, given the heightened importance of marriage as a social institution in India. The bench remarked,
It is far more difficult for women to retain social acceptance after a decree of divorce. This, coupled with the law’s failure to guarantee economic and financial security to women in the event of a breakdown of marriage; is stated to be the reason for the legislature’s reluctance to introduce irretrievable breakdown as a ground for divorce even though there may have been a change in social norms over a period of time.
Adding further, the top court said,
A marriage is more than a seemingly simple union between two individuals and as a social institution, all marriages have legal, economic, cultural and religious ramifications.
So far as irretrievable breakdown of marriage is concerned, it does not exist as a ground of divorce under the Act and the issue has been debated by the Law Commission in its various reports.
Irretrievable Breakdown in Marriage
The grounds for divorce under Irretrievable Breakdown of Marriage OR No Fault divorce was considered by the Law Commission in its 59th report but the commission made no specific recommendations in this regard.
It said in its 71st report, the commission departed from the fault theory of divorce to recognise situations where a marriage has completely broken down and there is no possibility of reconciliation and for such situations, it recommended that the law be amended to provide for irretrievable breakdown of marriage as an additional ground of divorce. It said,
This recommendation was reiterated by the Law Commission in its 217th Report in 2010, after undertaking a suo moto study of the legal issues involved. So far, the Law Commission’s recommendations have not been implemented.
The apex court said in 2010, the government introduced the Marriage Laws (Amendment) Bill, 2010, which proposed to add irretrievable breakdown of marriage as a new ground for divorce in both the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
It noted that after receiving suggestions from relevant stake holders, the Bill was amended and reintroduced as the Marriage Laws (Amendment) Bill, 2013, but it was never passed.
The bench said in appropriate cases, the apex court has granted decrees of divorce by exercising its jurisdiction under Article 142 to do complete justice between the parties.
It noted that a reference on the issues, including what could be the broad parameters for exercise of powers under Article 142 to dissolve the marriage between consenting parties without referring them to family court to wait for the period prescribed under the provision of Hindu Marriage Act, is pending before its constitution bench.
Remarks on Marriage by Supreme Court
The court looked at marriage as a union and said,
Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation merely because of the pendency of the reference.
Dealing with the case, the bench said it has little doubt that this is a marriage which has not worked and cannot work. The top court conculded,
We are, thus, of the view that a decree of divorce dissolving the marriage between the parties be passed not only in exercise of powers under Article 142 of the Constitution of India on account of irretrievable breakdown of marriage, but also on account of cruelty under of the Act in light of the subsequent conduct of the respondent (woman) during the pendency of judicial proceedings at various stages.
MDO Take –
- India as a country has decriminalised Adultery (2018), given rights and deserved respect to the LGBTQ community, yet resists making divorce simpler, especially in contested cases
- The divorce laws in India, particularly under the Hindu Marriage Act are draconian and almost a trap for Men, who want to set themselves legally free from a violent, abusive partner
- As per current laws, even if you are married for a single day, as a separated wife you are entitled to life long maintenance, right to residence, etc. under various sections such as Section 24 of HMA, Section 125 CrPC and Hindu Adoption and Maintenance Act
- The riders and exceptions for denying maintenance to any woman are only considered after the interim maintenance is granted by court
- This means that it may take decades to prove the woman wrong, yet she enjoys monthly maintenance from her estranged husband during that period
- Dilatory tactics are most commonly used by women where they do not want to consent to divorce, yet enjoy the monetary benefits for life – combined with sadistic pleasure of legally trapping the men for good
- Irretrievable Breakdown in Marriage was strongly opposed by Men’s rights activists in 2011-12, purely because the Act blankly stated 50% share to women on divorce
- The Act failed to consider duration in marriage, contribution of the woman in the household, if no children at all, whether divorce is initiated by husband or wife, etc. which means a woman could be married for a day, yet legally be entitled to half the assets owned by the man
- Sadly, neither governments are inclined to end this menace despite repeated comments by Supreme Court to make no fault divorce valid ground to break the dead marriage
- We fail to adopt progressive practices from the West, where duration of marriage is considered primarily, fixed timeline of maintenance is granted, also commonly known as Rehabilitative Alimony, where separated women in short lived marriages can return to their professional lives. Read Here
- If this state of matrimonial laws continue where all powers are solely rested in the hands of wives/daughter-in-laws, soon Men in India, backed by their families, will not be encouraged to get married and prefer to remain single
- While empowering women, we cannot make Men and their families as puppets, who can be dragged to police and courts depending on moods and fancies of disgruntled women
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