constitutional powers to separate a couple through a decree of divorce

 New Delhi: The Supreme Court on Monday held that living together was not a compulsory exercise as it invoked its constitutional powers to separate a couple through a decree of divorce even as the woman resisted dissolution of the marital tie.

A bench, headed by Justice Sanjay Kishan Kaul, noted that divorce was 'inevitable' since the marital tie was not working under any circumstances while the woman continued perpetrating cruelty on the husband by filing cases after cases and trying her best to see that he loses his job too.

'Filing of such complaints seeking removal of one's spouse from job has been opined as amounting to mental cruelty... these continuing acts of the respondent would amount to cruelty. This conduct shows disintegration of marital unity and thus disintegration of the marriage,' held the bench, which also included Justice Hrishikesh Roy.

The court also took note of the fact that the couple had not lived together even for a day after their marriage in February 2002 and they were separated for the last 20 years during which the man married another woman after a trial court in Tamil Nadu granted a decree of divorce in 2008 on the ground of irretrievable breakdown of marriage. However, the divorce decree was set aside by the Tamil Nadu high court in February 2019, after which the man to approach the Supreme Court to save his second marriage.

The court at first suggested mediation after noticing that they had already been living separately for two decades, but the woman remained firm that she will not give her nod for ending the marriage. She also opposed any endeavor by the court to give a decree of divorce on account of irretrievable breakdown of marriage in the absence of her consent.

The bench, in its judgment, noted that irretrievable breakdown of marriage is not a ground available under the law for couples seeking separation but the Supreme Court has granted decrees of divorce exercising its unique jurisdiction under Article 142 of the Constitution of India, to do complete justice between the parties.

It said the law commission had made recommendations in 1978 and again in 2010 to add irretrievable breakdown of marriage as a new ground for divorce in both the Hindu Marriage Act and the Special Marriage Act, but a draft law prepared in 2013 by the Union government was never passed.

The court asserted that societal stigma for a woman after getting divorced coupled with the law's failure to guarantee economic and financial security to women is stated to be the reason for the legislature's reluctance to introduce irretrievable breakdown as a ground for divorce.

'Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation...' said the bench, emphasising that a marriage is more than a seemingly simple union between two individuals

'As a social institution, all marriages have legal, economic, cultural, and religious ramifications... Families are arranged on the idea of a mutual expectation of support and amity which is meant to be experienced and acknowledged amongst its members. Once this amity breaks apart, the results can be highly devastating and stigmatizing,' it added.

The court noted that the marriage between the parties never took off and this is one case where both the grounds of irretrievable breakdown of marriage as well as cruelty by woman against her husband would entitle the man a decree of divorce to put an end to continued allegations and litigative proceedings.