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Mitigating The Sufferings

Once, a world-famous actor reportedly said: “Divorce is indeed a tragedy. However, the bigger tragedy is staying in an unhappy marriage.” She might have been happy to hear the recent ruling of the Supreme Court (SC) of India. A five-judge Constitution Bench of the SC ruled on May 1, 2023 that it could exercise its Plenary Power to do “Complete Justice” under Article 142(1) of the Indian Constitution in order to dissolve a marriage on the ground that it had broken down irretrievably, without referring the parties to a Family Court, where they must wait 6-18 months for a Decree of Divorce by mutual consent.

Justice S K Kaul, who led the five-member SC Bench, explained that the court could exercise this power to waive the mandatory six-month waiting period for divorce under the Hindu Marriage Act (HMA), 1955, and allow the dissolution of the marriage on grounds of irretrievable breakdown even if one of the parties was not willing. It is to be noted that Article 142 of the Constitution of India provides for full legal disposal of any pending matter.

As per the HMA 1955, both the parties have to first apply to the Lower Court in case of divorce by mutual consent, and the primary condition of this is that the applicants have to stay separately for at least 12 months or more. It would have taken at least another six months for the application to be approved. Applicants had no other option, but to comply with this deadline. The Judiciary used to consider this six-month period as the final chance (given by the court to the two parties) to withdraw the divorce petition, and to settle everything.

However, this entire period – from filing an application for divorce to another six months of waiting – caused severe personal and social suffering to both parties. Also, the parties had to go through a painful period before filing the application. Now, the Apex Court has hinted at reducing the mandatory waiting period of six months and also talked about a speedy settlement of divorce petitions after considering responsibilities of children, division of property, etc. The SC believes that such a move can provide the parties with some quick relief from the pain.

Before making its decision on divorce, the Supreme Court not only took into account the personal sphere of the two petitioners, but also considered the issue seriously. Hence, the matter gets another dimension. The Constitution Bench of the SC categorically mentioned that laws related to divorce in the South Asian country are based on a mutual blame game, which could not repair a relationship. Therefore, it is good for an individual, as well as the society, to admit that the marital relationship cannot be repaired, and hence would be treated accordingly.

As per statistics, the number of divorces has doubled in India in the last two decades, although the national rate of breakup is only 1.1%. However, numbers do not always tell the inside story. It is not possible to analyse the turbulence in marital relationships through statistics. One would have to consider the issue of the socio-economic status of the divorced women in India. Although some women are responsible for divorce (as they misuse the Article 498 and Article 498(A) of the Indian Penal Code that states “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.”), the majority often spends their lives without family and faces social humiliation after getting separated. In a country where poverty and gender inequality are rampant, and women are largely economically dependent (on their husbands), divorce can wreak havoc on them.

If the intervention of the Apex Court in the long, tedious and costly legal process of divorce makes it a little easier, then it might well at least soften the deep wounds of an individual.

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