The Supreme Court recently passed an order that, without purporting to lay down any law, immediately raised a few questions as to its complicity with statutory provisions.
The wife had filed Transfer Petition (Civil) No. 944 of 2008 (Kavita Yadav v. Rahul Yadav) under Section 25 of the Code of Civil Procedure, 1908 for transfer of a Matrimonial Suit filed against her by the Husband in Alipore, Kolkata to a place more suitable for her defence. During the pendency of the Transfer Petition in the Supreme Court, the parties filed a Settlement Agreement dated 5.12.2008, in which they inter alia agreed to suffer a divorce by mutual consent. The Hon'ble Supreme Court, in its order dated 16th March, 2009, relied upon the Settlement Agreement to grant the divorce by mutual consent with immediate effect.
The order immediately piqued my curiosity, because Section 13-B(2) of the Hindu Marriage Act, 1955 prescribes a time period of at least 6 months before a Decree of Divorce by Mutual Consent can be granted by the District Court. This period of 6 months had been originally prescribed in order "to give time and opportunity to the parties to reflect on their move and seek advice from relatives and friends" [Sureshta Devi v. Om Prakash, (1991) 2 SCC 25], clearly reminiscent of the traditional Indian notions revering the sanctity of marriage.
This is perhaps one of the most disturbing paradoxes of Indian Society - the importance attached to the subsistence of marriage at any cost, and conversely, the ignominy attached to divorce; particularly under the umbrella of the Arranged Marriage system, where the husband and wife know so little about each other before vowing to stay together till eternity.
Yet, modern India in its march towards Development has witnessed inroads being made into traditional Indian family values, and the sanctity attached to Marriage has been no exception. It is now being increasingly realized that when a marriage has irretrievably broken down, the parties are better off parting ways than to have one party (usually the wife) bear the burden of the unhappy marriage.
The above order of the Supreme Court clearly reflects this departure from traditional thinking. As a matter of fact, the order is in keeping with the earlier orders of the Supreme Court under similar circumstances:
1. Rajiv R. Hiremath v. Uma, (2000) 10 SCC 303 - The Hon'ble Court, upon the parties arriving at a compromise, converted a petition for divorce into a petition for divorce by mutual consent, and remanded the case to the Family Court for passing of appropriate decree under Section 13-B. The judgment actually describes the compromise for mutual divorce as a "happy development".
2. Jimmy Sudershan Purohit v. Sudarshan Sharad Purohit, (2005) 13 SCC 410 - The Apex Court traced its power to pass a decree of divorce by mutual consent in a Transfer Petition to Article 142 of the Constitution.
3. Anita Sabharwal v. Anil Sabharwal, (1997) 11 SCC 490 - The Hon'ble Court, after satisfying itself as to the irretrievable breakdown of the marriage, passed a decree for divorce by mutual consent in a Transfer Petition, even though it noted that no petition under Section 13-B had been filed, and the period of 6 months had not even commenced. The Court eventually traced its powers to the "spirit of Section 13-B".
4. Leena Roy v. Subrata Roy, 1992 Supp (2) SCC 110 - The Supreme Court dispensed with the period of 6 months while directing the Civil Court to decide the petition for divorce with mutual consent, because the wife wished to return to America in connection with her service.
The above judgments clearly reflect a positive and forward looking attitude, that District and Family Judges could do well to emulate. Of course, due care needs to be exercised while satisfying itself that the marriage has indeed broken down irretrievably. When the breakdown of the marriage is not in dispute, it would help a lot of bickering couples if divorce is granted promptly, waiving the 6 month prescription.
Supreme Court of India