NEW DELHI: Observing that settlement, and not litigation, should be the preferable mode of dispute resolution in matrimonial matters, the Supreme Court on Monday said it is the duty of the court to ensure such disputes are amicably resolved to bring the agony of parties to an end by not adopting a hyper-technical approach and that it can waive off the cooling off period of six months in case of irretrievably broken marriage.
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While reaffirming its power to dissolve an irretrievably broken marriage by invoking Article 142 and also by discarding the cooling-off period of six months in case of mutual consent as mentioned in Hindu Marriage Act, a five-judge Constitution bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari said when divorce is inevitable, the cooling-off period could breed misery and pain, without any gain and benefit.
the courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end. In this regard, the courts only have to enquire and ensure that the settlement between the parties is achieved without pressure, force, coercion, fraud, misrepresentation, or undue influence….,” the bench said.
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Noting that time gap of six months between the parties seeking divorce by consent and the court passing order was to enable the parties to analyse and take a deliberate decision and not in a haste, the bench said when there is no possibility of reunion and cohabitation, the court is “not powerless in enabling the parties to avail a better option, which is to grant divorce”. It said waiver is not to be given on mere asking, but on the court being satisfied beyond doubt that the marriage has shattered beyond repair.
In cases of dead and unworkable marriages, the SC said the court shouldn’t adopt the lengthy procedure of ‘fault theory’ where the guilt of a party has to be proven.
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“Once serious endeavours for reconciliation have been made, but it is found that separation is inevitable and the damage is irreparable, divorce should not be withheld. An unworkable marriage, which has ceased to be effective, is futile and bound to be a source of greater misery for the parties….Public interest demands that the marriage status should, as far as possible, be maintained, but where the marriage has been wrecked beyond the hope of salvage, public interest lies in recognising the real fact. No spouse can be compelled to resume life with a consort, and as such, nothing is gained by keeping the parties tied forever to a marriage which has, in fact, ceased to exist,” it said,
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“It would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue. Therefore, apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases, as the rules of evidence under the Evidence Act are rules of procedure…” it said.
