By Adv. R. S. Agrawal 

 

THROUGH the judgement in the case – Shri Rakesh Raman v. Smt. Kavita, delivered on April 26, 2023, Justice Sudhanshu Dhulia and Justice J.B. Pardiwala, at the Supreme Court, have added a new ground to the armory of estranged couples seeking divorce. In a case, where their marital relationship has broken down irretrievably with a long separation and absence of cohabitation (as for 25 years in the present case), with multiple court cases between the parties; the Court’s view is that, then continuation of such a ‘marriage’ would only mean giving sanction to cruelty which each is inflicting on the other.

It has been pointed out by the SC, that the husband and wife, before it, living separately since last 25 years and have no child from the wedlock. There are bitter allegations of cruelty. In 3 cases cited before the Court, it absolutely saw no chance of the couples living together again. In all these cases. The SC had exercised its powers under Article 142 of the Constitution of India and dissolved the marriages on the ground of irretrievable breakdown as a ground which otherwise does not exist under the Hindu Marriage Act,1955.

In one of these three cases – (Naveen Kohli’s), the SC has made a strong recommendation to the Union of India to consider adding irretrievable breakdown of a marriage as a ground for divorce under the Hindu Marriage Act. The SC has stated that the multiple court battles between them and the repeated failures in mediation and conciliation is at least testimony of this fact that no bond now survive between the couple. It is indeed a marriage, which has broken down irretrievably. Matrimonial cases before the Courts pose a different challenge, quite unlike any other, as the judges deal with human relationships with its bundle of emotions. The Supreme Court has commented that it does not want to disregard totally the finding of the Delhi High Court, in this case, that mere filing of the criminal cases by the wife does not constitute cruelty as what has also to be seen are the circumstances under which cases were filed. In fact, as a pure proposition of law it may be correct, but then, the Court must also closely examine the entire facts of the case, which are before the it.

When the Court takes into consideration the facts, as those exist on the day, it is convinced that continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other. Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is. A marriage can be dissolved by a decree of divorce, on the ground when the other party “has, after the solemnization of marriage treated the petitioner with cruelty.” In the SC’s considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts the cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. A marriage, which has broken down irretrievably, spells down cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is, therefore, a ground for dissolution of marriage under section 13(1) (ia) of the Act. Cruelty has not been defined under the Act. All the same, the context where it has been used, which is as a ground for dissolution of a marriage would show that it has to be seen as a ‘human conduct’ and ‘behaviour’ in a matrimonial relationship. In the decision the case of Samar Gosh, the SC has opined that cruelty can be physical as well as mental. If it is physical, it is a question of fact and degree. If it is mental,

the enquiry must begin as to the nature of cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. Cruelty can be even unintentional. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment. Where there has been long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair.

The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. The HC points out that, it has a married couple before it, who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. They have no child from the wedlock. The matrimonial bond is completely broken and is beyond repair. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under section 13(1)(ia) of the Hindu Marriage Act, 1955.

Under the circumstances, the SC has allowed the appeal and upheld the order passed by the trial court, though on different grounds and set aside the Order of the High Court and granted a decree of divorce to the appellant-husband dissolving the marriage. However, considering the fact that the appellant/husband is an employee of the Life Insurance Corporation and his present salary is more than Rs one Lakh per month, the Court has though it fit and proper to give to the respondent-wife, Rs Thirty Lakhs as permanent alimony. The appellant has been directed to deposit the said amount with the Registry of the Court within 4 weeks. The decree for divorce will be effective only from the date of such a deposit.