Abstract
People often marry in haste for a variety of reasons. These could include among others, parental or societal pressure. They now find themselves repenting for the rest of their lives. Often these unhappy spouses have children; studies have shown that it is more advantageous for the development of the child that he/she has one happy parent, rather than two unhappy ones. The spouses are not unable to divorce as neither incompatibility nor irretrievable breakdown are recognized as grounds for divorce. The Honorable Supreme Court has often used Art 142 to grant relief in such cases, but there are precedents where the Court, “has refused to legislate,” leaving the parties to their fate. This article makes a call for amendment and legislation in the various personal laws in keeping with the times.
“No reason to stay, is a good reason to go”
Introduction
Divorce is an official or legal process to end a marriage.[1] Irretrievable breakdown of the marriage is a broad ground for divorce that is predicated on the development of incompatibility between marriage partners and that is used in many Countries as the sole ground of no-fault divorce.[2]
Theories of Divorce:
In India, though divorce laws vary between religions, there are two basic approaches to divorce: fault based and no-fault or guilt based. Laws vary depending on the religion of the parties.
- Divorce laws in India
In India divorce is generally on one of the “fault” grounds of divorce and rather rarely mutually consented to. All major religions have their own laws, which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages. Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Divorce Act, 1869; Parses by the Parsi Marriage and Divorce Act, 1936; Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the grounds on which women can obtain a divorce and the uncodified civil law grounds .i.e. illa, zihar, lian . Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956. Other community specific legislation includes the Native Converts’ Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a spouse converts to Christianity.
In Goa there is the Divorce Act (Decree of 3 November 1910) which is applied irrespective of the religion of the parties, the only criterion being that the parties should be goan.
Grounds of Divorce
The grounds of Divorce can be classified into Guilt ground or Fault ground, Mutual consent and Irretrievable breakdown of marriage as a ground of divorce when the facts of the case do not precisely fit into any of the “grounds” due to the absence or presence of certain factors.
- Guilt grounds of Divorce
- (i) Adultery
Adultery signifies consensual sexual intercourse between one of the spouse to the marriage with another person. Adultery is defined as the voluntary sexual intercourse between a married person and a partner other than the lawful spouse.
Under the Hindu law, single instance of extramarital sexual intercourse is sufficient, which can be proved by preponderance of probabilities. The provision of the Goa law is similar. Article 4 of the Decree of Nov 1910 mentions the adultery by wife and by the husband as a ground of contested divorce. Though these are two different grounds, they are equally available to both.
The Muslim law does not specifically recognize it as an independent ground of divorce. However, in the ground of cruelty husbands association with women of ill-repute is included. Associating with women of ill-repute may or may not include the act of sexual intercourse. That too, the word used in the Act is ‘women’ and not ‘woman’.
In Mahalingam Pillai v. Amravalli[3] , it was held that one general intercourse after the solemnization of marriage is sufficient to make a case. An attempt at general intercourse is not enough some penetration, however, brief, it may be, must be proved.
(ii) Desertion
Desertion signifies the act of complete forsaking of one spouse by the other spouse by cessation of cohabitation. The Goa law provides a ground of divorce where one of the spouses completely abandons the conjugal domicile for not less than a period of three years. The Hindu law too has a similar ground which provides relief in case abandonment is without a reasonable excuse and for a continuing period of two years. Under the Muslim law the ground available to the wife is worded differently. The word ‘Desertion’ or ‘abandonment’ is not used, but it states that ‘the husband has failed to perform marital obligations for a period of three years without a just cause’. This can be construed to mean an act of desertion.
- (iii) Cruelty
The term ‘Cruelty’ has not been defined in any of the laws. But it has been recognized as a ground of divorce in all the three set of laws. The Goa law has worded this as ‘ill-treatment or serious injury’. Ill-treatment would include physical harm or threat of harm, unreasonable restriction, etc. It will also include indignity means acts or words that are offensive to the honor, dignity and reputation of the other spouse, in which both the words and the acts are characterized by the intention to cause harm, to degrade, i.e. by animus injuriandi
The Hindu law does not explain what ‘cruelty’ is, but plainly mentions it as a ground. It is through the judicial interpretation that the word is accorded an explanation. It is not accompanied by any qualifying term like ‘Serious’, as used in the Goa law provision. The word has been understood to mean physical as well as mental cruelty, and seems to have a wider ambit than the Goa laws.
Under the Muslim law too, husbands’ cruelty is a recognized ground. The clause specifically mentions which acts would be considered as amounting to cruelty. Wife entitled to divorce if husband habitually assaults or makes her life miserable, physical and mental cruelty included; husband associates with women of ill repute; husband attempts to force wife to lead an immoral life; husband disposes her property or prevents her from exercising her right; husband obstructs her in observation of her religion profession or practice; or when he does not treat her equitably in accordance with injunctions of Islam where he has more wives. Whether this widens the scope of availability of the ground by making it more specific, or restricts the ambit, is a question to be pondered.
Classification of Cruelty:
Cruelty is classified into two heads.
- Physical cruelty and
- Mental cruelty
- (iv) Sentencing of a spouse for an offence
Goa law provides for final sentencing of any spouse to any of the major penalties under the Penal Code. Similar ground is found in the Dissolution of Muslim Marriage Act, 1939, which allows divorce on the ground that the husband has been sentenced to imprisonment of seven years or more. The sentence has to be a final sentence. Hindu law recognizes no such ground.
- (v) Inveterate addiction to games of fortune or chance
This refers to chronic vice of gambling. This ground is provided under the Goa laws and has come under heavy criticism. Such a specific provision is not found in the Hindu law and the Muslim law.
- (vi) Rape, Sodomy and Bestiality by the husband
This ground is recognized under the Hindu law exclusively for the wife. These are sexual acts committed by the husband against the wife or any other female. Rape on the wife is available as a ground in case she is below the age of sixteen.
In Anil Kumar Mahsi v. Union of India[4], Petitioner-husband through writ challenging Section 10 of Divorce Act as being discriminatory and violative of Article 14, contending that sodomy and bestiality as ground of divorce available to wife but not to husband. The Honorable Supreme Court held that legislature not faulted if said two grounds allowed to women and not to husband by considering physique, vulnerable social condition, non-aggressive nature and role of women particularly in this country for seeking dissolution of marriage, no substance observed in challenge to vires of Section 10.
- (vii) Insanity
The Goa laws provide for unsoundness as a ground of divorce only in case it is incurable, when at least three years have passed from the date of the court order confirming the insanity, becomes final. According to the Hindu law, incurable mental disorder constitutes a ground of divorce. The disorder may be continuous or intermittent and of such a kind and to such an extent that the petitioner cannot be reasonably expected to live with the respondent. There is no qualifying time limit for such disorder. Even the Dissolution of Muslim Marriage Act, 1939 contains a ground similar to the Goa Civil law viz; the insanity of the husband, but the duration of it is continuous period of two years.
- (viii) Leprosy and Venereal diseases
The Hindu law and the Dissolution of Muslim Marriages Act, 1939 recognizes suffering from Leprosy and venereal diseases as a ground of divorce. For the purpose of Hindu law leprosy has to be incurable and virulent. In Muslim law, leprosy may be curable or incurable. Venereal disease has to be communicable though curable.
Goa law provides for contagious disease as a ground of divorce which is recognized if incurable, where the characteristics and nature of the illness have to be confirmed by prior examination. It will include an incurable disease which involves sexual aberration. In this explanation, leprosy and venereal disease as mentioned under Hindu and Muslim law will be included. But this ground appears to be much more comprehensive as it includes various kinds of incurable contagious diseases, which are not covered in the grounds of Hindu and Muslim law.
- (ix) Impotency of the Husband
This ground for divorce is recognized only under the Muslim law. If after petition, the husband applies to court, the court can make an order asking him to satisfy within 1 year that he has ceased to be impotent.
- (x) Non-compliance of the Decree of Restitution of Conjugal Rights.
The Hindu law provides that in case where the court has passed an order of restitution of conjugal rights between the parties, and it is not complied with up to the period of one year, than it becomes available as a ground of divorce. The ground is available even to the non-complying spouse, as it signifies that fact the marriage has broken down beyond repairs.
- (xi) Mutual Consent Divorce
A divorce by mutual consent is a kind of divorce whereby both the husband and wife mutually agree to end their marriage and decide the terms and conditions of their divorce amicably.[5]
Mutual consent divorce may be applied for according to Art.1472 of the Civil Code in Goa by parties who have been married for more than five years and the age of both the parties is more than 25 years. Before granting a decree nisi for divorce, the court calls the parties and their parents and children above the age of eighteen years and attempt to effect reconciliation. In case where the decree is granted where reconciliation fails, the parties have to reappear before the court for reconciliation. It is at this stage that divorce becomes final if reconciliation fails. In cases where the parties reconcile before the final decree of divorce, they cannot seek divorce by mutual consent again, but may go in for contentious divorce.
The Hindu law and the Muslim law too provides for divorce by mutual consent. The divorce provision under the Muslim law is available by virtue of the uncodified Muslim Personal law, which involves an act of freeing each other having an irrevocable effect. Divorce by mutual consent under the Hindu law can be granted on a petition of both the parties by mutual consent on the ground that they have been living separately for a period of one year or more and have not been able to live together. This is not a precondition for the Muslim law and the Goa Civil law.
- (xii) Disappearance of Spouse
The Goa law recognizes the absence without news of the missing spouse as a ground of divorce. The Hindu law mentions a similar ground of divorce when the spouse has not been heard of as being alive by those who would have heard of him if he was alive, thus raising a presumption of death of the missing spouse. Muslim law too raises a similar presumption where the whereabouts of a person are not known. However the decree does not take effect till the expiry of 6 months. If husband appears personally or through agent and satisfies court of his willingness to resume cohabitation, the decree will be set aside.
In all these three sets of laws the ground is recognized for the purpose of divorce, but under the Goa law and the Muslim law the duration is 4 years whereas under the Hindu law it is seven long years.
- (xiii) Renunciation of the world
This is a typical Hindu ground recognized on the basis of the sanyasashrama system that the Hindu philosophy provides. This is an act of one spouse giving up the worldly life. It resembles ‘desertion’ in the sense that there is non-performance of marital obligations. But what makes it different, is the requirement of giving up worldly life and entering a religious order. It is available immediately on the fact of renunciation, and there is no qualifying duration in case of like in case of desertion.
- (xiv) Conversion
Hindu law mentions conversion of the respondent as a ground of divorce. Conversion includes not only the act of renouncing one’s own faith but also embracing another faith. Conversion to a non-Hindu faith becomes a ground of divorce, as the Hindu law allows marriage between two Hindus only.
The Goa law does not recognize this as a ground as it is applicable to all irrespective of ones religion. The Muslim law too does not provide this as a ground of divorce as husbands’ conversion to another faith automatically results into dissolution of the marriage.
Lily Thomas v. Union of India[6], The Supreme Court held that conversion does not automatically dissolve marriage already solemnized under Hindu Act but it is ground of divorce under Section 13 . Any other marriage during subsistence of first marriage would constitute an offence.
- (xv) Repudiation of the marriage by the wife
In case of the Hindu law the wife is entitled to claim divorce in case her marriage was solemnized before the age of fifteen years if it is repudiated between the ages of fifteen to eighteen years. The Muslim law too recognizes the same ground but the wife loses it in case the marriage has been consummated. Such a condition does not apply to the Hindu law. Thus in Hindu law and the Muslim law nowhere affect the validity of child marriages. In such cases the law recognizes divorce.
- Irretrievable breakdown as a ground of divorce
Even though marriages are made in heaven, there are to be endured on earth. At times, the spouses find themselves at loggerheads. They are unable to conceive of the thought of living together as spouses, but they are unable to divorce, as perhaps one of them wants to continue the matrimonial tie while the other wants a divorce. The facts of the case also perchance do not fit under the “grounds” for divorce available under their respective personal law.
The case of Naveen Kohli v. Neelu Kohli[7] is often cited by parties and even the Courts as a standard to determine “irretrievable breakdown” of marriage.
Facts: Husband and wife lived separately for ten years. Husband filed for divorce on grounds of ‘cruelty’. Mutual allegations of infidelity leveled. Trial Court recorded specific finding about wife harassing and torturing husband, mentally, physically and financially. Trial Court held either party failed to prove allegations .Also that amicable settlement was absolutely impossible .Decree of dissolution of marriage passed by Trial Court marriage under Section 13, Hindu Marriage Act. Wife appealed. High Court held evidence on record not properly appreciated by Trial Court .A finding that husband immorally cohabited with another lady recorded by the High Court. On that ground held, that it amounted to misconduct and was uncondonable for the purpose of Section 13(1) (a) of the Hindu Marriage Act. Thus Trial Court’s judgment was set aside and suit for divorce dismissed. An appeal was preferred to the Supreme Court, whether facts make out a just case for grant of divorce on grounds.
Held, undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The court opined that there is a need of irretrievable breakdown as ground of divorce. It held, restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked
In Vishnu Dutt Sharma v. Manju Sharma[8] In the petition filed by the appellant, it was alleged that soon after the marriage the respondent was behaving in a cruel manner derogatory to the appellant and the family members; that the respondent avoided staying in the matrimonial home and never remained there for more than 25 days together; and that after leaving the matrimonial home while she was pregnant with the child, the respondent never returned to live with the appellant. In the instant case, the respondent wife has both before the trial Court and this Court been able to demonstrate that far from treating the appellant with cruelty, she in fact suffered cruelty at the hands of the appellant. To grant divorce to the appellant despite this only on the ground of irretrievable breakdown would not, in the view of this Court, be doing justice to the respondent.
Judgment: The division bench of Supreme Court held that on a bare reading of Section 13 of the Hindu Marriage Act, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.
In Mangayakarasi v. M. Yuvaraj[9] where, the learned counsel relied on the decisions in the case of Naveen Kohli v. Neelu Kohli[10], Sanghamitra Ghosh v. Kajal Kumar Ghosh[11] and Samar Ghosh v. Jaya Ghosh[12] to contend that in cases where there has been a long period of continuous separation and the marriage becomes a fiction it would be appropriate to dissolve such marriage. The Court observed that “on the position of law enunciated it would not be necessary to advert in detail inasmuch as the decision to dissolve the marriage apart from the grounds available will have to be taken on case to case basis and there cannot be a strait jacket formula.”
VII.Role of Art 142 of Constitution of India in Divorce[13]
The Honorable Supreme Court has been exercising the power under Article 142 of the Constitution for dissolution of marriage where the Court finds that marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted. Decree of divorce has been granted to put quietus to all litigations between the parties and to save them from further agony, as it is evident from the judgments in
Romesh Chander v. Savitri[14], Kanchan Devi v. Promod Kumar Mittal[15], Anita Sabharwal v. Anil Sabharwal[16], Ashok Hurra v. Rupa Bipin Zaveri[17] Kiran v. Sharad Dutt[18], Swati Verma v. Rajan Verma[19], Harpit Singh Anand v. State of W.B.[20], Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit[21], Durga Prasanna Tripathy v. Arundhati Tripathy[22], Naveen Kohli v. Neelu Kohli[23], Sanghamitra Ghosh v. Kajal Kumar Ghosh[24], Rishikesh Sharma v. Saroj Sharma, [25]Samar Ghosh v. Jaya Ghosh[26] and Satish Sitole v. Ganga[27]. However, these are the cases, where the Court came to rescue the parties on the ground for divorce not provided for by the legislature in the statute.
In Ashok Hurra v. Rupa Bipin Zaveri[28], the Court observed, “The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearance of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstance, it is stated, there is hardly any utility in maintaining the marriage as a facade, when are of the essence of marriage have disappeared.”
In Anjana Kishore v. Puneet Kishore[29], the Court while allowing a transfer petition directed the Court concerned to decide the case of divorce by mutual consent, ignoring the statutory requirement of moving the motion after expiry of the period of six months under Section 13-B (2) of the Act.
In Anil Kumar Jain v. Maya Jain[30], The short point for decision was whether a decree can be passed on a petition for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955, when one of the petitioners withdraws consent to such decree prior to the passing of such decree. The Court held that an order of waiving the statutory requirements can be passed only by Supreme Court in exercise of its powers under Article 142 of the Constitution. The said power is not vested with any other Court. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13 or 13- B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955.
The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers. The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties.
The various decisions referred to merely indicate that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given fact situation by invoking its powers under Article 142 of the Constitution, but in normal circumstances the provisions of the statute have to be given effect to.
However, various judgments of the Supreme Court taking a contrary view to the effect that in case the legal ground for grant of divorce is missing, exercising such power tantamount to legislation and thus transgression of the powers of the legislature, which is not permissible in law. Thus in Chetan Dass v. Kamla Devi[31] and Vishnu Dutt Sharma v. Manju Sharma[32] Court declined to exercise its powers under Art 142.
The Supreme Court observed in State of Punjab v. Renuka Singla[33], State of U.P. v. Harish Chandra[34] , Union of India v. Kirloskar Pneumatic Co. Ltd.[35], University of Allahabad v. Dr. Anand Prakash Mishra[36]and Karnataka SRTC v. Ashrafulla Khan[37] that generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.
A Constitution Bench of Supreme Court in Prem Chand Garg v. Excise Commr[38]. Held as under:
“ An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.”
Further, the Constitution Benches in Supreme Court Bar Assn. v. Union of India[39] and E.S.P. Rajaram v. Union of India[40] held that under Article 142 of the Constitution, the Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure.
Similar view has been reiterated in A.R. Antulay v. R.S. Nayak[41] , Bonkya v. State of Maharashtra[42], Common Cause v. Union of India[43], and others.[44]
In Teri Oat Estates (P) Ltd. v. UT, Chandigarh[45] the Court held as under:
“… sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right…. despite an extraordinary Constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision.”
In Laxmidas Morarji v. Behrose Darab Madan[46], while dealing with the provisions of Article 142 of the Constitution, this Court has held as under:
“The power under Article 142 of the Constitution is a Constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these Constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties.”
After elaborately discussing almost all the case laws on this subject about jurisdiction of this Court under Article 142, the Court, summarized the same in the following words:
“ Therefore, the law in this regard can be summarized to the effect that in exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy. “
After saying so, the Court rejected the request of the parties to waive the statutory period of six months under the Act.
In Mota Ram v. State of Haryana,[47] the Court, while reiterating the above principles has concluded that Article 142 cannot be exercised to negate the statutory provisions.
In Academy of Nutrition Improvement and Others v. Union of India[48], the following conclusion about the applicability of Article 142 is relevant:
“Article 142 of the Constitution vests unfettered independent jurisdiction to pass any order in public interest to do complete justice, if exercise of such jurisdiction is not be contrary to any express provision of law.”
In Supreme Court Bar Association v. Union of India[49], the Court observed:
“The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice “between the parties in any cause or matter pending before it”. The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by “ironing out the creases” in a cause or matter before it. Indeed this Court is not a Court of restricted jurisdiction of only dispute settling. It is well recognized and established that this Court has always been a law maker and its role travels beyond merely dispute settling. It is a “problem solver in the nebulous areas”.[50] But the substantive statutory provisions dealing with the subject matter of a given case cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these Constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject.”
In Kalyan Chandra Sarkar v. Rajesh Ranjan [51], the Court after reiterating that it in exercise of its jurisdiction under Article 142 of the Constitution would not pass any order which would amount to supplanting substantive law applicable to the case or ignoring express statutory provisions dealing with the subject, observed as follows:
“It may therefore be understood that the plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties…and are in the nature of supplementary powers…(and) may be put on a different and perhaps even wider footing than ordinary inherent powers of a Court to prevent injustice. The advantage that is derived from a Constitutional provision couched in such a wide compass is that it prevents ‘clogging or obstruction of the stream of justice.”
In A.B. Bhaskara Rao v Inspector of Police, CBI Visakhapatnam[52], the Court held, though the jurisdiction of this Court, under Article 142 of the Constitution of India is not in dispute, we make it clear that exercise of such power would, however, depend on the facts and circumstances of each case.
VIII.Conclusion
The guilt or offence theory of divorce is essentially a nineteenth century concept where the society abhorred divorce as an evil, as devil’s mischief, and therefore that society could agree for divorce only on that basis that one of the parties has committed some sin, some very heinous offence against marriage. Since we adopted the guilt theory in most of the statutes, the innocence aspect of the other party was also emphasized. Under any statute no petition will succeed on the grounds if the petitioner has been accessory to or connived at or condoned the respondent. Collusion between the parties or improper delay in filing the proceedings is also fatal to the petition. Breakdown of marriage as the sole basis of divorce is now recognized in several countries of the world.
It should be noticed clearly that in breakdown principle of divorce culpability or guilt or innocence of either party does not figure anywhere. A marriage is dissolved just because it has broken down. This provision will help to ameliorate the condition of spouses who are stuck in a broken marriage simply because they cannot find a fault ground or come to an amicable mutual solution vis a vis divorce.
[1] (Mar. 25, 2020, 08:00 AM),https://dictionary.cambridge.org/dictionary/english/divorce
[2](Mar. 25, 2020, 08:04 AM),https://www.merriam-webster.com/legal/irretrievable%20breakdown%20of%20the%20marriage
[3] (1956)2MLJ289
[4] MANU/SC/0827/1994
[5] (Mar. 25, 2020, 08:20 AM), https://www.legistify.com/blogs/view_detail/difference-between-mutual-consent-divorce-and-contested-divorce/
[6] MANU/SC/0827/1994
[7] AIR2006SC1675
[8] 2009(3) SCALE425
[9] LNIND 2020 SC 170
[10] (2006) 4 SCC 558
[11] (2007) 2 SCC 220
[12] (2007) 4 SCC 511
[13] Art 142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself
[14] AIR 1995 SCF 851
[15] AIR 1996 SC 3192
[16] (1997) 11 SCC 490
[17] AIR 1997 SC 1266
[18] (2000) 10 SCC 243
[19] AIR 2004 SC 161
[20] (2004) 10 SCC 505
[21] (2005) 13 SCC 410
[22] AIR 2005 SC 3297
[23] AIR 2006 SC 1675
[24] (2007) 2 SCC 220
[25] (2007) 2 SCC 263
[26] (2007) 4 SCC 511
[27] AIR 2008 SC 3093
[28] AIR 1997 SC 1266
[29] (2002) 10 SCC 194
[30] (2009) 10 SCC 415
[31] AIR 2001 SC 1709
[32] (2009) 6 SCC 379
[33] AIR 1994 SC 595
[34] AIR 1996 SC 2173
[35] AIR 1996 SC 3285
[36] (1997) 10 SCC 264
[37] AIR 2002 SC 629
[38] AIR 1963 SC 996
[39] AIR 1998 SC 1895
[40] AIR 2001 SC 581
[41] AIR 1988 SC 1531
[42] AIR 1996 SC 257
[43] AIR 1999 SC 2979
[44] M.S. Ahlawat v. State of Haryana (2000) 1 SCC 278 , M.C. Mehta v. Kamal Nath AIR 2000 SC 168 :, State of Punjab v. Rajesh Syal AIR 2002 SC 3687, Govt. of W.B. v. Tarun K. Roy (2004) 1 SCC 347 :, Textile Labour Assn. v. Official Liquidator AIR 2004 SC 2336, State of Karnataka v. Ameerbi (2007) 11 SCC 681 , Union of India v. Shardindu AIR 2007 SC 2204 and Bharat Sewa Sansthan v. U.P. Electronics Corpn. Ltd. AIR 2007 SC 2961 :
[45] (2004) 2 SCC 130
[46] (2009) 10 SCC 425
[47] AIR 2010 SC 3780
[48] LNIND 2011 SC 592
[49] 1998 (4) SCC 409
[50] See. K. Veeraswami v. Union of India : 1991 (3) SCC 655
[51] (2005) 3 SCC 284
[52] [2012] 3 MLJ (CRL) 403
