The Supreme Court on Wednesday observed that most divorce cases seem to arise from love marriages.
A bench of Justice BR Gavai and Justice Sanjay Karol was hearing a transfer petition arising out of a matrimonial discord in which the man expressed the intention to convert to Christianity. The counsel informed the bench that it was a love marriage.
“Most divorces are arising from love marriages only,” Justice BR Gavai stated.
The bench suggested mediation. As the husband objected to it, in light of a recent decision passed on May 1, the court stated that it might award divorce without his consent.
THE RECENT JUDGMENT
On May 1, a Constitution Bench of the top court comprising Justices S K Kaul, Sanjiv Khanna, A S Oka, Vikram Nath, and J K Maheshwari said that an exercise of power under Article 142 of the Constitution “will not contravene the principles of public policy” and that it has the power to do so.
The SC thus made these observations in the Hindu laws governing marriage, while stating that it will not be going into the intent and objective of the Hindu Marriage Act, 1955 so as to bar itself from dissolving a “broken and shattered marriage”.
The court said, “The marriage has irretrievably broken down must be factually determined and firmly established, and several factors must be considered, including the length of time the parties cohabited after marriage, when the parties last cohabited, and the nature of allegations made by the parties against each other and their family members.”
The bench also said, “It is obvious that this court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established.”
The bench also emphasized the provision 13-B(2) of the Hindu Marriage Act, 1955 in relation to the mandatory cooling-off period of six months between filing first and second motions.
The object of the cooling off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out.
Therefore, once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant divorce,” the court said.
Lastly, the court added that it is important to review a few decisions in which it had refused to exercise jurisdiction under Article 142(1), which states that “extraordinary care and caution must be exercised, and unless it is shown that exceptional and special circumstances exist to demonstrate that substantial and grave injustice has been rendered, this Court should not review/interfere with the decision appealed against”.
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