SC says mutual consent for divorce not necessary for irretrievable breakdown of marriages

Recently, the Supreme Court passed an order to dissolve a marriage while observing that consent of husband and wife is not necessary to clear the dissolution of wedlock breakdown irretrievably. While exercising powers conferred to it under Article 142 of the Constitution of India, the Apex Court granted divorce to the married couple on the ground of irretrievable breakdown of marriage and mentioned that pattern has been invoked 'not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise'. 

Under Article 142 of the Constitution, the Top Court can exercise its jurisdiction and may pass an order for doing absolute justice in any case at hand and any order so passed shall be enforceable throughout the territory of India. 

Now, even though the irretrievable breakdown of marriage is not a ground for divorce under statutory provisions, the concept leads to dissolution if courts of law stand convinced and rightfully deduce that the marriage is beyond repair. However, the court's observations may differ even under similar circumstances wherein judges have ordered for the restitution of conjugal rights instead of granting the decree of divorce. 

'...interest of wife is also required to be protected financially': Supreme Court

In the case at hand, a Supreme Court bench comprising Justices Sanjay Kishan and KM Joseph, after considering the facts of the case, said that there exists no cruelty to justify the grant of decree of divorce. The observation holds relevance against the Family Court, which previously allowed the husband's petition seeking a divorce on the ground of cruelty. While stating that facts of the case do not justify a divorce due to cruelty, the bench underlined that the wife and husband had been living separately since the year 2002 i.e. 22 years. 

"Now, so far as submissions on behalf of the respondent-wife that unless there is consent by both the parties, even in the exercise of powers under Article 142 of the Constitution of India, the marriage cannot be dissolved on the ground of irretrievable breakdown of marriage is concerned, the aforesaid has no substance. If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties do not agree and give consent, only then powers under Article 142 of the Constitution of India are required to be invoked to do substantial justice between the parties, considering the facts and circumstances of the case. However, at the same time, the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others," the bench noted. 

Facts of case

In this case, the husband and wife married in the year 2000 on the provision of Hindu ceremonies and the parties to marriage live together for a period of two months. The wife headed to Canada and eventually attainted citizenship in 2002, leading the husband to allege that she was residing in Canada without his consent and returned only after she obtained Canadian citizenship.  Subsequently, the wife returned but the two continued to indulge in fights which led the couple to reach out to Panchayat, who asked the duo to reside separately from their family. After having failed to make things work, the couple separated when the wife left for Canada again. 

The timeline allegedly compelled the husband to file for divorce before a lower court, citing cruelty as the ground for divorce under Section 13 of the Hindu Marriage Act. The husband submitted that the absence of cohabiting and loneliness caused him mental ordeals. 

"We have noticed above that all endeavour has been made to persuade the parties to live together, which have not succeeded. For that, it would not be appropriate to blame one or the other party, but the fact is that nothing remains in this marriage. The counsellor's report also opines so. The marriage is a dead letter,'' the Supreme Court said while awarding a decree of divorce and dissolved the marriage in the case at hand. 

Also, the Court held that the husband must continue to pay maintenance of Rs 7,500 per month while allowing the parties to formally apply for the reduction of the amount.

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