By Justice Kamaljit Singh Garewal
In our country, ending a marriage under the Hindu Marriage Act, 1956, is not such a difficult and complicated matter, but it can be a daunting task if the other party wants to contest, and do so with bitterness and ferocity. The party seeking divorce has eight grounds for it: adultery, cruelty, desertion, conversion, mental unsoundness, venereal disease, renunciation and missing for seven years. Most cases are filed on grounds of cruelty alleged by one party and denied by the other, leading to a long, contested trial before the Family Court. The contesting party occasionally starts criminal prosecutions for dowry demands, domestic violence, cruelty and maintenance.
However, divorce by mutual consent is the civilised way of calling the whole thing off. The couple must have been married for at least a year, and after filing their joint petition, are given a cooling off period of six months. If after that they have not been able to reconcile, a decree of divorce is granted. When the contest extends to criminal proceedings, filed in different courts and occasionally in jurisdictions of different High Courts, one of the parties moves a transfer petition before the Supreme Court to get the case transferred from one state to another.
In this roundabout way, many matrimonial matters reached the Supreme Court for transfer from one High Court’s jurisdiction to another. Obviously, the trials were nowhere near conclusion. Therefore, when the matters come up before a Bench, the judges naturally look at the circumstances of the case to find that the marriage had, in fact, broken down irretrievably. In such a situation, it would have been futile to transfer the cases and send the parties back for interminable civil trial and may be even a criminal one, which could extend for many years. In other words, transferring the cases would doom the parties to live out the best years of their lives in the musty corridors of district courts.
The five-judge bench which heard Shilpa vs Varun and other transfer matters was faced with the question whether the Court could grant a decree of divorce by mutual consent, dispensing with the six month cooling off period and quash other/connected proceedings under various laws. Alternatively, if mutual consent was not forthcoming, should they grant divorce if there was complete and irretrievable breakdown of the marriage in spite of the other spouse opposing the prayer. In a nutshell, the two situations before the Bench were, firstly, cases where the parties had mutually agreed to divorce, and secondly, where the marriage had irretrievably broken down (and the court agreed), but one party was resisting divorce.
However, the main question before the Bench was regarding exercise of jurisdiction under Article 142(1) of the Constitution of India to pass divorce decrees for “complete justice” either through mutual consent or by declaring the marriage to be irretrievably broken.
At the outset, it may be stated that ordinarily, divorce decrees are not be passed by the Supreme Court while hearing an application seeking the transfer of proceedings from one jurisdiction to another. Divorce on the ground of irretrievable breakdown of marriage is not even a ground for divorce under the Hindu Marriage Act, 1956. It also needs to be noticed that the Court in Shilpa vs Varun had before it six transfer petitions, two civil and four criminal. It is obvious that the criminal transfer petitions must have arisen out of criminal proceedings between the parties. Marriages in four of the cases had already been dissolved in 2015 in exercise of jurisdiction under Article 142(1), but the Court had kept the petitions pending to answer important questions of law.
Article 142(1) in the present form was presented before the Constituent Assembly as draft Article 118 and passed without any debate. This provision has been used by the Supreme Court many times to do “complete justice”, most famously in I.C. Golak Nath (AIR 1967), Union Carbide (1991), Supreme Court Bar Association (1998) and most recently, in Ram Janmabhoomi (2020).
To begin with, the judgment records that Article 142(1) has its “origins from the age-old concepts of justice, equity and good conscience …. gives wide and capacious power to do complete justice in any cause or matter”. The judgment relies on an important passage from Ram Janmabhoomi case which is: “The phrase ‘is necessary for doing complete justice’ is of a wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. The demands of justice require a close attention not just to positive law but also to the silences of positive law to find within its interstices, a solution that is equitable and just.”
From the above, the judgment proceeds to refer to the two principle forms of equity as propounded by Professor CK Allen in his book “Law in the Making” (1927). The two forms of equity were a liberal and humane interpretation of law in general so far as that is possible without actual antagonism to the law itself, called equity in general. And a liberal and humane modification of the law in exceptional cases, not coming within the ambit of the general rule, called particular equity. Very significantly, the judgment, taking a clue from Professor Allen, has declared that the words “cause or matter” in Article 142(1) particularises and empowers the Court to do “complete justice” in that “cause or matter” are relatable to particular equity.
The judgment also finds that “Article 142(1) of the Constitution of India turns the maxim ‘equity follows the law’ on its head, as this Article gives legal authority to this Court to give precedence to equity over law. This power, like all powers under the Constitution of India, must be contained and regulated, as it has been held that relief based on equity should not disregard the substantive mandate of law based on underlying fundamental general and specific issues of public policy. Subject to this limitation, this Court, while moulding relief, can go to the extent of relaxing the application of law to the parties or exempting the parties altogether from the rigours of the law, in view of the particular facts and circumstances of the case”.
The judgment also referred to I.C. Golak Nath where K Subba Rao, CJ., while invoking the doctrine of prospective overruling, held that the power under Article 142(1) of the Constitution is wide and elastic, and enables the Court to formulate legal doctrines to meet the ends of justice, and the only limitation thereon is reason, restraint and injustice. Restraint and deference are facets of the Rule of Law, and when it comes to the separation of the role and functions of the legislature, the executive and the judiciary, the exercise of power by this Court to do “complete justice”, being for a “cause or matter”, does not interfere with and encroach on the legislature’s power and function to legislate. Clearly, when the Court exercises jurisdiction conferred by Article 142(1) to do “complete justice” in a “cause or matter”, it acts within the four corners of the Constitution of India. The power specifically bestowed by the Constitution on the apex court of the country is with a purpose, and should be considered as integral to the decision in a “cause or matter”. To do “complete justice” is the utmost consideration and guiding spirit of Article 142(1) of the Constitution of India.
While concluding the discussion on Article 142(1), the judgment laid down that “the plenary and conscientious power conferred on this Court under Article 142(1) of the Constitution of India, seemingly unhindered, is tempered or bounded by restraint, which must be exercised based on fundamental considerations of general and specific public policy. Fundamental general conditions of public policy refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution of India. Specific public policy should be understood as some express pre-eminent prohibition in any substantive law, and not stipulations and requirements to a particular statutory scheme. It should not contravene a fundamental and non-derogable principle at the core of the statute. Even in the strictest sense, it was never doubted or debated that this Court is empowered under Article 142(1) of the Constitution of India to do ‘complete justice’ without being bound by the relevant provisions of procedure, if it is satisfied that the departure from the said procedure necessary to do ‘complete justice’ between the parties”.
Thus, we arrive at the dispensation of “complete justice” by the Supreme Court in divorce “causes or matters”, by passing decrees either on mutual consent of the parties or by declaring that the marriage had broken down irretrievably. Where the parties have agreed to divorce and settled all outstanding issues, grant of divorce is easy. The difficulty arises when the court finds that the marriage has broken down completely and irretrievably leaving no scope for the parties getting together again. When does a marriage breakdown irretrievably? This is a big question. Therefore, the judgment lays down a few ingredients of an irretrievably broken marriage. Ultimately, it is left to the discretion of the court and not a right of the party. Since the jurisdiction of the court is situation specific, the factors given below in the judgment are only illustrative.
The factors which may point to a breakdown of marriage, culled from Shilpa vs Varun, are: marriage is totally unworkable, emotionally dead, beyond salvation, dissolution is the only way forward and the right solution. The period of time the parties were together, when did the parties last live together, nature of allegations against each other and family members are also to be considered. Orders passed in legal proceedings, how many attempts were made to settle the dispute through the court or mediation should be examined. Separation should be sufficiently long, say six years. The economic and social status of the parties, their educational qualifications, age and education of children, if any, custody and welfare of minors, provision of alimony and economic rights of children are also relevant factors to be taken into account.
The Supreme Court has settled an important constitutional question dealing with the extended nature of the court’s jurisdiction to do “complete justice”. After such a path-breaking, lucid, and articulate judgment of the Court, many parties with complex matrimonial cases shall sit up and start preparing grounds to persuade it to invoke its expanded equity jurisdiction.
The judgment brings the lamp of justice to the dark and dreary lives of estranged couples to help them see a new dawn. Shilpa vs Varun shall have a far-reaching impact on matrimonial cases pending at various stages before the Supreme Court and help in ending widespread strife among warring couples.
—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York