Supreme Court: In a civil appeal against the Chhattisgarh High Court’s judgment, affirming the Trial Court’s order, whereby a decree of divorce was declined to be granted to the appellant-wife, the Division Bench of Sanjiv Khanna and M.M. Sundresh*, JJ. allowed the appeal and granted a decree of divorce and explained the scope of grant of divorce on grounds of ‘cruelty’ under Hindu Marriage Act.
In the matter at hand, the marriage was solemnized in the year 2002. Disputes started between the parties from 2006 onwards, soon after the birth of the child. The wife registered a complaint under Section 498-A of the Penal Code, 1860 (‘IPC’) and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The respondent-Husband had questioned the character of the wife and alleged that it was she had fled the matrimonial home and had also demanded a medical examination of the wife, alleging she was living in adultery and gave birth to a child during the period of non-cohabitation.
Cruelty as a ground for divorce under Hindu Marriage Act, 1955
The Court perused Section 13 of the Hindu Marriage Act, 1955 (‘the Act’), which provides for various grounds for granting divorce. The Court discussed the Statement of Objects and Reasons for the Marriage Laws (Amendment) Bill, 1976, by which the Amending Act of 1976 was introduced and clauses (ia) and (ib) were added to Section 13 and Section 13A. The Court noted that following are the objects and reasons for the Marriage Laws (Amendment) Bill, 1976:
To liberalise the provisions relating to divorce;
to enable expeditious disposal of proceedings under the Act; and
to remove certain anomalies and handicaps that have come to light after the passing of the Acts.
The Court said that the intention of the Parliament was very clear to liberalize the provision of divorce, while being conscious of the protection required for the estranged wife. The Court said that the word ‘cruelty’ under Section 13(1)(ia) of the Act, has got no fixed meaning, and therefore, gives a very wide discretion to the Court to apply it liberally and contextually. The Court also said that what is cruelty in one case may not be the same for another, hence, there must be a proper understanding of the position of the spouse opposing the petition for grant of divorce as the consequences and impact may differ from person to person, based upon factors such as social setting, educational qualifications, financial status, employment, caste, community, age and place.
The Court referred to Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288, wherein it was observed that the expression ‘cruelty’ has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.
The Court said that what is cruelty for a woman in a given case may not be cruelty for a man, and hence, a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. Further, the Court said that historically, the law of divorce was predominantly built on a conservative canvas on basis of the fault theory, however, with the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism. The Court also said that even with such a liberal construction of matrimonial legislations, the socio-economic stigma and issues attached to a woman due to divorce or separation are raised. The Court stressed on adoption of ‘social-context thinking’, cognisant of the social and economic realities, as well as the status and background of the parties by the Courts, while applying provisions for divorce.
Further, the Court discussed the question of burden in a petition for divorce and said that burden of proof lies on the petitioner, however, the degree of probability is not one beyond reasonable doubt, but of preponderance. The Court perused Section 23(1) which provides for decree in proceedings and said that it is a word of caution to check cases of abuse and misuse of law to get relief. The Court said that it must be kept in mind that a home, which is meant to be a happy and loveable place to live, becomes a source of misery and agony where the partners fight and children becomes direct victims of the said fights, though they may practically have no role in the breakdown of marriage. They suffer irreparable harm especially when the couple is at loggerheads, remain unmindful and unconcerned about the psychological and mental impact it has on her/him.
The Court also perused Section 23(2) of the Act which postulates that the Court before granting any relief under the Act shall, in the first instance, where it is possible in the nature and circumstances of the case, make every endeavour to bring about reconciliation between the parties. The Court pointed that the object and purpose of these provisions is to check any party taking advantage of social and economic inequalities between both, given the fact that on many occasions a divorce may solve one problem, but create another when the woman is separated both socially and economically.
In the present matter, the Court noted that the parties have been living separately for a decade and half. The Court said that the marriage does not exist any longer, and the relationship was terminated otherwise except by a formal decree of divorce. The Court said that the allegations levelled by the husband against wife were as serious as the allegations made by wife against the husband. Further, the Court said that both the parties had moved away and settled in their respective lives and hence there was no need to continue the agony of a mere status without them living together. The Court also said that the Trial Court and the High Court adopted a hyper-technical and pedantic approach in declining the decree of divorce. Therefore, the Court allowed the appeal and set aside the impugned judgments and granted a decree of divorce.
[Roopa Soni v. Kamalnarayan Soni, 2023 SCC OnLine SC 1127, Decided on: 06-09-2023]
*Judgment Authored by: Justice M.M. Sundresh
*Deeksha Dabas, Editorial Assistant has reported this brief.