Irretrievable breakdown of marriage ‘debatable’ ground for divorce: SC

: With the government set to reintroduce the marriage laws amendment bill in the Lok Sabha to amend thehindu marriageto make irretrievable breakdown of marriage a ground for divorce, the Supreme Court has urged a rethink if it was an expedient ground for untying the matrimonial knot.

“It is highly debatable whether, in the Indian situation, where there is rampant oppression of women, such a ground would at all be expedient,” said the bench of Justice Vikramajit Sen and Justice Prafulla C. Pant in a recent judgment.

The court hoped that this will be considered by the Lok Sabha.

The Marriage Laws (Amendment) Bill, 2013 that was passed by the Rajya Sabha lapsed before it could be considered by the Lok Sabha, as the lower house was dissolved upon completion of its term and general elections were held.

The court said this while restricting its examination of a divorce plea by K Srinivas on the ground of alleged cruelty by his wife K Sunita under the Hindu Marriage Act, 1955.

Srinivas also raised the issue of irretrievable breakdown of the marriage as a ground for dissolution of the marriage.

Sunita had filed a criminal complaint against Srinivas and seven members of his family on charges of cruelty, attempt to murder, and other provisions of the Dowry Prohibition Act, 1961. This resulted in their arrest.

Speaking for the bench, Justice Sen said: “… if this ground (cruelty) is successfully substantiated by the petitioner (Srinivas), we need not delve any further i.e. whether a marriage can be dissolved by the trial court or the high court on the premise that the marriage has irretrievably broken down…”

Restricting the examination of the divorce plea to cruelty only, the court said irretrievable breakdown of marriage as a ground for divorce “has not found statutory acceptance till date”.

“Under Article 142 of the Constitution, the Supreme Court has plenary powers to pass such decree or make such order as is necessary for doing complete justice in any case or order pending before it. This power has not been bestowed by our Constitution on any other Court.

“It is for these reasons that we have confined arguments only to the aspect of whether the filing of a false criminal complaint sufficiently proves matrimonial cruelty as would entitle the injured party to claim dissolution of marriage,” the court said.

It said the Law Commission in its reports in 1978 and 2009 recommended the introduction of irretrievable breakdown of marriage as a ground for its dissolution, and the amendment bill has received the assent of the Rajya Sabha.

In an apparent caution, the court said it was “highly debatable whether, in the Indian situation, where there is rampant oppression of women, such a ground would at all be expedient”.

However, in the instant case, the court granted divorce to Srinivas saying the complaint filed by Sunita was thrown out by the Hyderabad Mahila Court June 30, 2000 and the said order has attained finality.

Even before the complaint was declined by the Mahila Court, the Hyderabad Family Court had Dec 30, 1999 granted Srinivas divorce on the grounds of cruelty.

The court also said filing of a false complaint by either spouse amounted to matrimonial cruelty, and it would entitle the other spouse to claim divorce.

 

Wife’s position made stronger-Cabinet clears tweak to marriage bill

Amid Opposition demands to make divorce more women-friendly, the government today approved fresh amendments in a Bill pending in the Rajya Sabha to give the wife a clearly defined share in the husband’s immovable residential property in case of a divorce.

A meeting of the Union Cabinet, chaired by Prime Minister Manmohan Singh, took up new amendments to the Marriage Laws (Amendment) Bill introduced in the Rajya Sabha earlier this month.

The government also decided to retain the mandatory six-month cooling-off period, which the Bill had proposed to do away with in case of divorce by mutual consent.

To waive the cooling-off period, both the parties will have to move the application together. “In other words, the application to reduce the period can’t be moved by one party,” sources said after the meeting.

Once the divorce is granted, the woman will have to move an application to get a share in her husband’s property as part of the settlement.

Keeping in mind the demands raised by the Opposition, it has now been decided to give the wife and children a clearly defined share in the husband’s “immovable residential property” in case of a split.

Sensing the mood of the House in this connection, law minister Salman Khurshid had deferred his reply to the Bill on 2 May in the Upper House. Cutting across party lines, various members felt the Bill was being brought in haste and its spirit went against the interests of women and feared they would lose their rights further if divorce was made easier. “The amendments clarify and amplify provisions to be made in case of divorce,” the sources said. The law ministry’s Bill seeks to further amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954