498adivorce

December 21, 2009

SC bence differs on ‘‘irretrievable breakdown of marriage’’

Filed under: Uncategorized — Fighting Legal Terror @ 2:17 pm

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NEW DELHI: The deficiency in the divorce law highlighted by a petition filed by power minister Sushilkumar Shinde’s daughter, Smriti Shinde, is aggravated by conflicting rulings from the Supreme Court on the concept of ‘‘irretrievable breakdown of marriage’’.

Though such a ground for divorce is not mentioned in the Hindu Marriage Act or the secular Special Marriage Act, a three-judge bench headed by Justice B N Agrawal granted divorce in 2006 in the Naveen Kohli vs Neelu Kohli case precisely because of irretrievable breakdown of marriage. But early this year, a two-judge bench headed by Justice Markandey Katju refused to grant divorce on that ground in the Vishnu Dutt Sharma vs Manju Sharma case despite the precedent set by a larger bench.

Taking a conservative position, Justice Katju said that since the Hindu Marriage Act was silent on irretrievable breakdown, the court could not ‘‘add such a ground to Section 13 of the act as that would be amending the act, which is a function of the legislature’’.

The more controversial part of Katju’s ruling is the reason he gave for disregarding the 2006 precedent, which is normally binding upon his smaller bench. He made out that the 2006 verdict did not form a precedent because it had failed to take into account the legal position that Parliament had consciously excluded irretrievable breakdown as a ground for divorce.

‘‘A mere direction of the court without considering the legal position is not a precedent,’’ Justice Katju said.

In reality, the judgment delivered by Justice Agrawal’s bench did discuss the lacuna in the divorce law and it had even recommended to Parliament that irretrievable breakdown should be included in the grounds for divorce because of ‘‘the change of circumstances and for covering a large number of cases where the marriages are virtually dead’’.

If Justice Agrawal’s bench could still grant divorce on the grounds of irretrievable breakdown even without legislative reaffirmation, it was because of an activist approach to render justice within the given constraints of law. As the 2006 verdict put it, ‘‘We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties.’’

In the 2006 case, the wife had ‘‘resolved to live in agony only to make life a miserable hell’’ for the husband. In a creative interpretation, the court treated the wife’s refusal to let go of the husband despite the irretrievable breakdown as an instance of mental cruelty on her part.

‘‘This type of adamant and callous behaviour leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty,’’ the court said, while granting divorce on the ground of irretrievable breakdown.

Smriti Shinde’s petition provides an opportunity to dispel the confusion caused by Justice Katju’s attempt to bypass the 2006 precedent.

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