Thread by @lawbarandbench

A Constitution Bench of the Supreme Court has started hearing the issue regarding the extent of powers under Article 142 to grant divorce when one or both parties are not consenting.

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Senior Advocate @IJaising begins submissions.

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Sr Adv Jaising: I will address the second question first. The first is powers under 142. In my opinion that's a relatively easy question to answer.

But on the question whether irretrievable breakdown divorce can be granted..

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Justice Kaul: But no. of cases are coming up in such scenarios.. There will be different degrees.

Sr Adv Jaising: The second reference is of more significance- the specific question is when there is absence of consent from one side.

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Sr Adv Jaising: I'm taking it one step further.. can the trial court also exercise power?

Justice Kaul: The only impediment - despite law commission recommendations, the legislature has been reluctant.

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Sr Adv Jaising: The way i have visualised is- it always struck me as very strange that our matrimonial laws tell you capacity to marry, formality and way to exit a marriage.

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Sr Adv Jaising: I will refer to case law to show what courts have said how marriage ought to be.

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Sr Adv Jaising: There is no specific provision under Hindu Marriage Act for consent of parties to marry.. whereas in other laws, there is some consent.

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Sr Adv Jaising: Let us proceed on the assumption that marriage is a voluntary union between two people.

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Sr Adv Jaising: Yes, a marriage is definitely a monogamous association in Indian Law but it definitely does not follow that the two persons are one in the eye of law. If that were the case, there would be no doctrine of divorce.

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Sr Adv Jaising refers to a Delhi HC judgment: It was a judgment that refused to strike down the restitution of conjugal rights provision.

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Sr Adv Jaising: The judge held that introducing constitutional law into the family was the famous phrase, "introducing a bull in the china shop".

With great respect, I don't agree.

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Sr Adv Jaising refers to a Supreme Court judgment from 2021 which sought to define marriage.

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Sr Adv Jaising: One) It gives a description of what marriage is meant to be.

Two) What happens when the expectation of amity is gone. Can you still continue to call it a marriage?

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Sr Adv Jaising: A decree for divorce is also considered a matter of status. It is a declaration to the world.

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Sr Adv Jaising: Why is it a court of law that has to give a decree of divorce? Because it's a matter of status.

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Sr Adv Jaising: The court ought to grant a decree for irretrievable breakdown because all the essential factors have disappeared. They no longer exist. The only question is- how to separate amicably?

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Sr Adv Jaising: I'm in strong disagreement with judgments which indicate that marriage is a sacrament and it's the public policy of India that we don't break marriages.

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Justice Kaul: Those are two different things: sacramental is how a marriage is made, whether marriage can break or not is not in doubt. Issue is, under Hindu Marriage Act, divorce is based on fault theory. Irretrievable breakdown is ground reality.

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Justice Kaul: Two very good people may not be good partners.

Sr Adv Jaising: I understand.. it's not such a b&w issue. There is an overlap.. every marriage where a petition for divorce is filed there are allegation and counters.

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Sr Adv Jaising: The the question comes, are we looking at fault theory? It is smuggled in through a provision - no person can take advantage of their own wrong. It has a limited role.

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Justice Kaul: What is fault? Somebody will say she doesn't wake up in the morning and give my parents tea.. is it fault theory? Lot of them arise from social norms. From there we attribute faults.

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Sr Adv Jaising: That is why this court has held that public policy is not frozen in time.

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Sr Adv Jaising: Social norms also change.. therefore, arguments such as it's a sacrament therefore we must not agree to the theory of irretrievable breakdown do no make any sense.

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Justice Kaul: Question is in the divorce- must one person be attributed a fault?

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The court rises. Will continue hearing this case tomorrow morning.

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