Irretrievable breakdown: Supreme Court in breach of ‘stare decisis’?

When a two-judge Bench of the Supreme Court ruled that irretrievable breakdown of marriage was not a ground for divorce, it not only ran contrary to the spirit of the law but also breached the principle of ‘stare decisis’.

In the recent case of Vishnu Dutt Sharma v. Manju Sharma (Civil Appeal no. 1330 of 2009; decided on February 27, 2009), the Supreme Court dealt with a plea of ‘irretrievable breakdown of marriage’ and the two-judge Bench of Justice Markandey Katju and Justice V.S. Sirpurkar denied divorce for the reason that the ground pleaded was not available under Hindu Marriage Act. While subjective satisfaction of the court is above and beyond question, the interpretation of law and its applicability can always be examined.

The Bench said:

On a bare reading of Section 13 of the Act, reproduced above, 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.

It is a settled principle of law that if there is a lacuna in a law that causes hardship or there is no law that could take care of a certain situation, the courts can step in to save the day by laying down the law and thus filling the vacuum. Simply because the legislators failed to foresee a situation is no reason for the courts to send a suffering petitioner back to wait until the legislature is not only cognizant of the kind of situation he is in but also does something about it. Courts of law are courts of justice and are, therefore, empowered to use all legitimate means at the disposal of the state to meet the ends of justice and provide due relief. And that’s because the law exists for the sole purpose of securing justice. It naturally follows that if and when the law falls short of doing that, its deficiency has to be promptly remedied. Therefore, when a court lays down a law, it does not usurp the essential function of the legislature, but supplements it in the interest of justice so long as the spirit of the law is not compromised.

Reading irretrievable breakdown into the Hindu Marriage Act as an independent, standalone ground for divorce is consistent with the scheme of the Act and is pursuant to the legislative intent because irretrievable breakdown of marriage supplies the sole justification for the divorce law to exist. But for irretrievable breakdown, divorce law would not be required. Therefore, denying divorce despite irretrievable breakdown of marriage is contrary to the legislative intent and defeats the very object of the enactment. The legislative intent behind the Act is to allow divorce in case of an irretrievable breakdown and not to artificially ‘preserve’ marriage. (Also see: Divorce: Irretrievable breakdown needs no legislative reaffirmation)

The Court further says:

Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent.

The subjectivity introduced through the expression ‘in our opinion’ stands good and unquestionable provided the opinion drawn could be logically drawn on the basis of the relevant material or in a given set of circumstances.

In Naveen Kohli v. Neelu Kohli (Civil Appeal no. 812 of 2004; Decided on March 21, 2006), a three-judge Bench of Justice B.N. Agrawal, Justice A.K. Mathur and Justice Dalveer Bhandari considered irretrievable breakdown separately and specifically, and begins by saying:

Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.

Interestingly, the legal position considered is exactly the same legal position that the Bench in Vishnu Dutt Sharma case says was ‘not taken into consideration’.

The Court in Naveen Kohli case mentions with approval the 71st Report of the Law Commission of India, wherein the Commission strongly recommends irretrievable breakdown of marriage as a ground for the dissolution of marriage. The Bench further considers the legal position in the foreign countries like New Zealand where irretrievable breakdown works as a valid ground for divorce. The Bench also cites the Report of Moral and Social Welfare Board accepted by the General Assembly of the Church of Scotland on May 22, 1969, wherein the breakdown of marriage has been considered to be a ground good enough to grant divorce. The Bench further says:

We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties.

The Bench then considers the conflicting viewpoints of the jurists and says:

The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely.

Thenceforth the court turns to the case in hand and points out the mutually belligerent approach of the couple and the sheer number of criminal and other proceedings initiated by the parties against each other, and observes:

Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.

Thus, a resistance to divorce by one party despite an undeniable breakdown may itself be looked upon as an instance of mental cruelty.

It is amply clear from the above discussion that that the legal position of irretrievable breakdown of marriage as a ground for divorce was very extensively considered by the Supreme Court in Naveen Kohli case and the facts of the case were also examined to ascertain if there was an irretrievable breakdown of marriage in this case. And it was only when the Bench arrived at the conclusion that the marriage had irretrievably broken down that the divorce was finally allowed. In this case it is very unlikely that the divorce could be granted without treating irretrievable breakdown as a ground for divorce. Therefore, it forms the ratio decidendi of the case by all means and is not obiter dicta. It was a three-judge Bench, which makes the decision binding on the two-judge Bench in Vishnu Dutt Sharma case by operation of the doctrine of precedent.

Hence, when the Bench in Vishnu Dutt Sharma case implies that ‘legal position’ was not considered or the decisions were ‘mere directions’ forming no precedents, it is difficult to agree with it. It was open for the Court to say without affecting the outcome of the case that in its opinion there was no breakdown. But the precedent value of a judgment is rarely open to a subjective take.

However, the greater problem now is that if the Bench erred in appreciating the precedent value of a previous judgment and consequently failed to apply the relevant legal position, it technically ended up applying the wrong law, which renders the judgment legally infirm.

The legal position of irretrievable breakdown remains unaffected by the Vishnu Dutt Sharma case, as the Naveen Kohli case retains its precedent value, being the judgment by a larger Bench.

Also see: Divorce: Irretrievable breakdown needs no legislative reaffirmation and The ‘breakdown’ story.

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Divorce: Irretrievable breakdown needs no legislative reaffirmation

It is not the existence of a legally recognized ground but the occurrence of an irretrievable breakdown that is the indispensable prerequisite for the grant of divorce. Irretrievable breakdown is, thus, an inbuilt condition that needs no further affirmation from the legislature

Dead marriages need a ‘death certificate’ to be buried for good, which is what divorce actually is. Courts do not kill marriages. Most of the marriages that end up in divorce are actually ‘brought dead’. By granting divorce the courts simply concede that the marriage has broken down beyond repair and there is no point in keeping the two partners yoked together by doggedly denying dissolution. Therefore, in granting divorce under any ground whatsoever the court actually accords legal recognition to ‘irretrievable breakdown’ of a marriage, thus allowing the partners to carry on with their individual lives separately. In other words, the court allows the burial of the dead body of a marriage so as to relieve the couple of the compulsion to lug it around, particularly when neither of the parties is interested in attempting a revival.

Generally, in India a marriage comes to the doorsteps of a divorce court only after the couple has itself failed to make it work, and also after its family and relatives together with the rest of the society have already tried with little success all the means at their disposal to keep the duo married. Backed by several rulings of the Supreme Court, it is by now a settled principle of Indian divorce law that the courts are to try their level best to rescue the marriage before granting divorce. So, the court is the Intensive Care Unit where a dead or ‘almost dead’ marriage is brought for a final attempt at resuscitation at the option of the judge because the parties have already tried and failed.

The grounds for divorce provided under the Hindu Marriage Act are situations under which the law considers it justified for a person to seek divorce. Differently put, these are situations that the legislature could envisage as causes for the irretrievable breakdown of a marriage. However, breakdown of a marriage could occur for reasons other than those mentioned or might simply occur on account of insurmountable incompatibility. Besides, there can be any number of situations in which the party seeking divorce might find it too embarrassing or plainly inappropriate to cite the reasons for the breakdown of marriage even if the real cause may actually be a ground for divorce. And the court cannot insist on being privy to the private life of a married couple as a precondition for granting divorce.

The courts should not grant divorce for the asking, but neither should they be too slow in granting it where the marriage has already broken down completely. The ‘preservation of marriage’ must not be pushed too far. Once the court has tried its hands at reconciliation and revival, and finds that the marriage cannot be really rescued, it cannot deny divorce solely on the grounds that irretrievable breakdown of marriage is no ground for divorce under Hindu Marriage Act (HMA) because irretrievable breakdown need not be a ground at all. Grounds under the Hindu Marriage Act are the causes and ‘breakdown of marriage’ is the effect. So, even if the causes are not known or could not be fully established, it does not obliterate the effect. It is like a doctor refusing to accept the fact of a patient’s death in absence of a medically recognized cause of death.

That irretrievable breakdown of marriage is a prerequisite for grant of divorce irrespective of the grounds under which the dissolution is sought is further clarified by the fact that the courts do not grant divorce simply because the ground for divorce is shown to exist in a particular case. The law and the courts attempt a revival of marriage and try to effect reconciliation. It is only when the concerned court is certain that no revival is possible that the divorce is granted, which implies that the court seeks to establish to its satisfaction that an irretrievable breakdown of marriage has occurred before granting divorce. If a husband commits adultery, his wife can rightfully seek divorce invoking Section 13(1)(i) of the Hindu Marriage Act. However, if she chooses to forgive and forget, the courts cannot grant divorce simply because the ground exists. Even if the husband approaches the court admitting to adultery and asking the court to grant divorce to his wife because he feels that such a devoted wife and pious woman does not deserve to be with an adulterer like him and he doesn’t deserve a wife as good as she is, the court cannot grant divorce because the wife has forgiven and for that reason no breakdown of marriage occurred. Of course, nobody can be allowed to take the benefit of his or her own mistake. But that legal principle need not be pressed into service, as the Hindu Marriage Act effectively takes care of the situation here.

Therefore, it is not the existence of a legally recognized ground but the occurrence of an irretrievable breakdown that is the indispensable prerequisite for the grant of divorce. Irretrievable breakdown is, thus, an inbuilt condition that needs no further affirmation from the legislature, and, therefore, need not be sought as a specific ground for divorce by legislative stipulation.

It is also amply clear that breakdown of marriage has to be examined from the standpoint of the partners involved because whether a breakdown has occurred or not and whether the breakdown is irretrievable or not is primarily questions of fact, the answer to which can only be found in the way the partners involved perceive their marriage and its future. Thus, breakdown of marriage occurs in the mind of one or both of the partners much before its external manifestation is perceptible. And if no breakdown occurs in the mind, it doesn’t matter if all the grounds mentioned under the Hindu Marriage Act are indisputably available. So, if a husband has not been heard of for decades on end, but the wife considers herself his wife and their marriage good, there is no breakdown. A person might convert to any religion whatsoever, but if his or her spouse considers their marriage good, there is no breakdown. Ergo, there is a great deal of subjectivity involved in ‘breakdown of marriage’. It follows that in certain situations the breakdown may not have loud external manifestations and the reasons might also appear relatively trivial. But that doesn’t change the fact of the breakdown, lessen the severity of it or affect its permanence. The subjective aspects of a breakdown must not be overlooked. So, when one of the partners feels that his or her marriage has irretrievably broken down, what needs to be ‘established beyond doubt’ is the fact of the breakdown. And once irretrievable breakdown of marriage is established, the court can grant divorce on that ground alone because that is always the ultimate reason for the courts to grant divorce anyway, as discussed above. Denying divorce despite irretrievable breakdown is arbitrary, unjust and against the spirit of the law and the legislative intent.

Also see: Irretrievable breakdown: Supreme Court in breach of stare decisis? and The ‘breakdown’ story

The ‘breakdown’ story

A realistic hypothetical story closely resembling a number of cases and demonstrative of the tumultuous insides of a modern Indian marriage.

An educated, bright and ferociously independent girl is married to a successful young professional from an affluent and reputed business family. After two years of marriage and a baby boy, the wife finds herself unable to live with a husband who is perpetually distrustful. Every time she is on phone and he is around, he would keep hovering like a spy drone attempting to net a word or two. And when the conversation is over he might nosily inquire about the person on the other side and the details of the conversation. A text message on her phone is treated likewise. He would attempt a peek. If that’s not possible he would try guessing the content of the message from the expression of her face.

She finds herself caged, her privacy invaded and her personal space regularly and brazenly violated. Why should she keep explaining everything to her husband? Why shouldn’t she be allowed to just be? Why should she be made to feel like a criminal to be eyed with suspicion all the time? And why should she tolerate any of it? She felt deeply hurt and tormented. Having been brought up in a liberal modern family invasion of privacy was absolutely unacceptable to her. The husband having been brought in conventional Indian family failed to understand why there was this question of ‘space’ between husband and wife and why should he not know everything about his wife. “Why should he know everything?” is her furious contention on the other hand.

Early in the marriage he found that his wife hid something from him simply because she considered it ‘personal’ though it was trivial. The realization that she was capable of effortlessly ‘hiding’ things that need not even be hidden bothered him. He tried to take it lightly but could not help watching out for lies and deception howsoever minor. This compulsive urge to verify and know ‘the truth’ and to be aware of ‘everything’ about his wife made him very nosey and intrusive to the utter disgust of his wife. Conversation about ‘space’ and ‘privacy’ resulted in heated arguments. Why should she ‘hide’ anything from him? Her insistence on privacy made him further suspicious. What all is she hiding? Discussions only bred further distrust in him.

Traditions and conventions of the family on one side and her prying husband on the other made her feel like a prisoner in an affluent household, and her own family looked at it as ‘teething trouble’ initially and later as ‘adjustment issues’ of their ‘pampered’ daughter. Incensed, she kept simmering internally. And soon she was a methodical, mechanical, dutiful, non-loving wife. Her heart was elsewhere, thought her husband. And he wanted to know where. His overt attempts at finding answers, no matter how friendly, were promptly spurned with disdain. And his covert attempts disgusted her to the core. His very presence was intrusive and repulsive to her. He was the very personification of violation. And she had her guards up shutting her husband out. Since the husband had never known his wife emotionally and knew little about how she looked at life and their ‘married life’, he had no inkling about how bad things had already gone until her younger sister, who was at far better terms with his wife than anyone else in the family, thrust a letter in his face in enraged disgust. The letter was written by his wife to her friend, a married woman herself, and made him realize that on his wife’s side their marriage was already in advanced stages of decomposition.

Articulate and imaginative, she had described in bright vividness as to how utterly miserable she felt in the marriage. How she felt like a maid, housekeeper, washerwoman, babysitter and then a mere female body at different times of the day and night. How she had to feign consent and pleasure on those nights when her husband would ‘lovingly’ came torturously close to her. How unbearably pretentious she found this pompous pride in the ‘family name’ and ‘family honour’. And how utterly fake her life was in ‘this marriage’ with ‘that man’ amidst the ‘circus’ of ‘his family’. She had vented her acidic anger in scathingly explicit terms. And it hurt. He was shocked to know that even in the most intimate moments she was simply deceiving him and that her ‘love’ disgusted her, and that she had nothing but contempt and ridicule for him and his family. The emotional gash was deep enough to take a lifetime to heal.

Confronted with the letter, she minced no words. The breakdown was complete. She was promptly sent to her parents.

The husband just doesn’t want to cast another glance at her anymore. The only thing he and his family want is to shut it for good sealed with a divorce. And on her part, she wants to allow nothing to them, not even divorce. To her mind ‘he’ and ‘his family’ had messed her life up and she would not allow them to mess the life of another woman. So, no divorce. 7 years pass. Nothing happens.

The marriage has irretrievably broken down because the partners involved cannot stand the sight of each other. But no ground for divorce is available to the husband. All that the husband has is a letter written to someone else, wherein she expresses how she feels. The letter makes him hate her. He is deeply hurt, but ‘mental cruelty’ cannot be argued, as the wife did not say or do anything to the husband or his family members that could be called ‘cruel’ by any stretch of imagination. The marriage is stone-dead for no legislatively recognized cause. It’s dead for want of compatibility. A minor cause can do major, irreparable damage. It’s not the size of the cause but the magnitude of the damage that needs to be considered.

Therefore, where the marriage is conclusively dead with no hope of revival, denying divorce is arbitrary and unjust.

Also see: Irretrievable breakdown: Supreme Court in breach of stare decisis? and Divorce: Irretrievable breakdown needs no legislative reaffirmation

How Bush helps Obama

When this ‘skinny kid with a funny name’, as he likes to describe himself, became the first African-American President of the United State amidst worldwide euphoria, it was clear that he had an enormous weight of expectation on his shoulders, which could make it difficult for him to perform as well as the world expected him to or as well as he would himself want to. It is possible for Barack Obama to disappoint loads of people across the globe simply because the expectations of Obama are somewhere between unrealistic and fantastical. He is the President of the United States and not the President of the World. So, he can be expected to push the interest of the US first and foremost, as he should, but cannot be expected to keep the world happy.

By virtue of the very nature of his job as President of the most powerful nation in the world, he can well be expected to ruffle some feathers in the international arena. But Obama would do as little of that ruffling as possible because he knows, as we all do, from the American experience that offensive actions come back to haunt in near or distant future.

However, he does have a few things going – in fact a little more than few things – going for him. One of them is his predecessor. Bush would help Obama in the job because he messed things up so badly that any improvement at all would shine like gold. And Obama knows how not to mess things. He is more of consensus-builder than a confrontationist. He believes in dialogue and peaceful negotiations, which takes care of the Middle East problem because the US has already shown the kind of havoc it could wreak and it’s time for a softer, reconciliatory approach with the memories of violence working in the background. He does not see the problem as an ‘axis of evil’ issue or as ‘clash of civilizations’, which is, again, a reasonable view of things. And the Middle East is likely to respond to a reasonable stand better than it responded to Bush’s arm-twisting. Not that the issues would be sorted out overnight, but a significant breakthrough is likely.

The other major challenge that the US faces is the current economic meltdown, and what Obama is doing is the best possible course in the current situation. That’s the best a government could do to help retard and reverse the slowdown.

So, Obama just has to stay the course and be himself, and will have already bettered the situation a great deal because any departure from Bush’s dangerously preposterous worldview is a mighty relief.