This article is written by Jaanvi Jolly. It seeks to analyse the judgement of Romesh Chander vs. Smt. Savitri (1995) SC, which dealt with cruelty as a ground for divorce along with the applicability and acceptance of irretrievable breakdown as a ground to dissolve marriages. It discusses the case law based progression of the acceptance of the ground of irretrievable breakdown in India, along with similar provisions in the laws of other nations. There is also a brief discussion on how to improve the pendency of matrimonial cases and how alternative dispute resolution mechanisms like mediation can help in achieving amicable and quicker resolutions.
Table of Contents
Introduction
Marriages are believed to be made in heaven but have to be carried on in society. The concept of marriage as a sacrament was a cornerstone of ancient Hindu law, wherein divorce was an unheard societal norm that, once performed, had to be persevered with till death.
With the ushering in of the era of independence for our nation, various laws were enacted that provided for the liberty and autonomy of the citizens. The Hindu Marriage Act 1955 (hereinafter HMA 1955) was a watershed piece of legislation that transformed the law relating to marriage in line with the constitutional principles of right to life and human dignity, justice, equality, etc. One of the many reformative changes that were phased in was providing the parties to the marriage the option of dissolving their marriage by divorce, where both or one of the spouses felt that they were caged in a marital bond and it was better to quit than suffer. Statutorily, only fault based grounds are recognised in India, however, in the present case, the Apex Court analysed the application of the theory of irretrievable breakdown to grant dissolution of marriage, in this article, we will delve into the peculiar facts of the case that compelled the court to dissolve the marriage and compare them with other cases where the court refused to apply the doctrine of irretrievable breakdown. is
Details of the case
- Case name – Romesh Chander vs. Savitri
- Type of case – Civil appeal preferred by a Special leave petition
- Appellant – Romesh Chander
- Respondent – Smt. Savitri
- Name of the court – Supreme Court
- Bench – Hon’ble Justice R. M Sahai and Hon’ble Justice S. B Majmudar
- Date of judgement – 13 January 1995
- Equivalent citations – 1995 SCC (2) 7
Background of Romesh Chander vs. Smt. Savitri (1995)
The appellant husband sought a divorce decree from his wife on the grounds of mental cruelty meted out to him by the respondent wife. He based his claim first on the written statement dated 04.11.1976 which was filed by the respondent-wife in an earlier divorce proceeding between the couple, which was commenced by the appellant-husband on the ground of desertion. That proceeding, during its course, reached the Apex Court via a Special Leave Petition but ended in a dismissal. Secondly, he relies on several complaints by one Ramesh Gupta and publication in the newspaper of defamatory material by Sh. D.R. Gupta, which the appellant husband alleged was done on the instructions of the respondent-wife to harass him. The trial court, as mandated by the Hindu Marriage Act 1955 and Section 9 of the Family Courts Act, made an attempt at reconciliation, wherein it was discovered that while the respondent wife was ready to cohabit, the appellant husband was vehemently opposed to the proposition. After the evidence was presented, the petition was dismissed by the trial court.
The appeal as per Section 28 HMA 1955 was preferred before the Single Judge Bench of the High Court, which also made an attempt at reconciliation but that too failed due to the fault of the appellant husband. The trial court’s findings were upheld and the appeal was dismissed.
Subsequently, a Letters Patent appeal was preferred against the judgement of the single judge dismissing the appeal. The Court examined the impugned judgement, which was appealed against on 3 major grounds-
- The findings of the Single Bench are erroneous, as the findings were not recorded issue-wise and resulted in a failure of justice.
- Failed to examine evidence on record that clearly established ground under Section 13(1)(i-a) HMA 1955.
- Marriage has irretrievably broken down and must be dissolved on that ground.
The division bench recorded the following findings on the issues raised-:
- The findings of the Single Judge dealt with all the objections in light of the material on record and passed a reasoned judgement.
- The ground of cruelty was not sufficiently proved to merit a divorce decree.
- It is not a fit case for a divorce decree to be passed on the ground of irretrievable breakdown.
Consequently, the appeal was dismissed, being devoid of any merit.
Finally, the appellant husband filed a special leave petition under Article 136, resulting in a civil appeal in the Apex Court.
Facts of Romesh Chander vs. Smt. Savitri (1995)
The parties were married in the late 1960s and had been living separately since 1969, i.e., about a year after they were blessed with a child. The appellant-husband who is a sanitary inspector and the wife, who is a teacher, were married for 25 years and this proceeding was the second round of litigation initiated by the husband to seek a divorce. The ground of appeal was cruelty, which was disbelieved by the lower courts; additionally, the husband also attempted to seek divorce on the ground of irretrievable breakdown.
Issues raised
The Court raised two issues-
- Whether the respondent-wife is guilty of meting out cruelty to the husband to justify the grant divorce decree as per Section 13(1)(i-a)?
- A sentinel question that where a marriage is otherwise dead, both emotionally and practically, should it be continued for name sake where the exhaustive list of grounds under Section 13 is not satisfied?
Arguments of the parties
Petitioners
In the prior divorce proceeding, the respondent wife, in her written statement, made allegations regarding the character and integrity of his superiors in service and friends, along with stating that he was in the habit of mixing with other females. He also alleged that the respondent wife got a false complaint filed against him by one Mr. Ramesh Chander and to discredit him, he got a news item published defaming the appellant husband. These acts have caused a great deal of agony and mental cruelty.
Respondent
She contends that she did not deliberately get the accusation recorded in the written statement of the first proceeding and must have gotten it recorded involuntarily. No allegations have been leveled in the written statement of the current case, nor have any statements been made in that regard in court. If the accusations in the first written statement had caused mental cruelty to the appellant-husband, he could have added this to his earlier petition by amendment of pleadings and claimed a divorce on the additional ground of mental cruelty. Further, the respondent-wife during the attempts at reconciliation, has expressed her willingness to join the appellant husband.
Legal provisions involved in the case
Section 13 of the Hindu Marriage Act, 1955
This provision has introduced an option for the parties to seek dissolution of their marriage, whether contracted prior to or after the commencement of the HMA 1955, if the grounds mentioned under the Section are satisfied. The concept of seeking dissolution of marriage by divorce was not recognised under traditional Hindu law.
Section 13 (1)(i-a) of the Hindu Marriage Act, 1955
This provision allows the petitioner to seek dissolution of the marriage on the ground of cruelty. Where the petitioner, anytime after solemnization of the marriage, has been treated with cruelty, whether physical or mental, it is a valid ground to seek dissolution.
Section 13 (1)(i-b) of the Hindu Marriage Act, 1955
This provision allows the petitioner to seek dissolution of the marriage where the other spouse has deserted the petitioner, which means withdrawal from the society of the petitioner for a continued period of 2 years without a reasonable cause. It recognises the importance of marital companionship in the successful continuation of matrimony and its absence is grounds to seek divorce.
Section 28(1) of the Hindu Marriage Act, 1955
This Section provides the period of limitation to be 90 days for appeals, which may be preferred from any decree passed as per the Act.
Article 142 of the Constitution
It provides the Supreme Court with tremendous powers to pass any decree or order in any matter pending in order to complete justice in the case. This gives enormous powers to the Apex Court to provide solutions in situations where the legislation might be insufficient or absent.
Judgement in Romesh Chander vs. Smt. Savitri (1995)
As to Issue 1
The Court upheld the findings of both courts below and stated that, as no evidence was led to prove the accusation that the respondent-husband was in a habit of mixing with other women in the presence of the respondent-wife, which was made in the prior proceedings nor any such allegations were a part of the written statement in the present case, the divorce cannot be granted on the ground of cruelty.
The court distinguished the facts of the case at hand from the case of Mr. Jordan Diengdeh vs. S.S. Chopra (1985) SC, wherein elaborate reference was made to the written statement filed by the respondent-wife, in which she alleged that the petitioner husband was a mental patient and required psychological treatment to restore mental health along with suffering from paranoid disorder and mental hallucinations. Additionally, she alleged that all the members of his family are a bunch of lunatics, and in an additional written statement filed, she asserted her right to state so.
The Court considered these as positive assertions of mental imbalance and not mere protestations of an injured wife. In contrast, in the prior proceedings between the parties, these accusations were considered mere unnecessary assertions in reply to the accusation of desertion. The conduct of the respondent wife in the present case is absolutely different and non-confrontational. Furthermore, she has expressed her willingness to reconcile the marriage. Thus, the Court refused to grant divorce on the grounds of cruelty.
As to Issue 2
The Court considered the fact that twenty-five years had elapsed since the parties enjoyed the conjugal bliss of each other’s company and that this was the second round of litigation for seeking a divorce decree, wherein the grounds of desertion as well as cruelty were both held to be not proved and thus not warranting a divorce decree.
It was observed that the husband has been the one at fault and has not been dutiful towards his wife and son nor did he contribute to the upbringing of the child; nevertheless, he is now remorseful, willing to compensate for his past misdeeds and has offered to transfer the only house in his name to the respondent-wife.
In light of these circumstances, the court believed that if a marriage was dead with no prospects of reconciliation, it’d be better to put an end to it. When the relationships end de facto, they must also cease to exist de jure. It serves no purpose to keep a man and woman in a bond tied together as husband and wife when, for a long time, they have ceased to occupy those positions. The aim is not to focus on the bitter phase but rather to provide a better future. Thus, the Apex Court, by exercising its powers under Article 142, dissolved the marriage, subject to the appellant husband transferring the house to the respondent-wife.
Rationale behind this judgement
There are two major theories of divorce first being the fault theory and the breakdown theory. Section 13 of the Hindu Marriage Act recognizes the fault-based therein, divorce can be sought against the party at fault by the other spouse; some fault-based grounds include desertion, adultery, cruelty, et cetera.
However, the breakdown theory is not statutorily recognised; a slight reflection can be seen in Section 13B, which deals with divorce by mutual consent. As per the breakdown theory, divorce is seen as an escape from an unhealthy and difficult situation. It is not concerned with the mistakes of the past but rather focuses on a better future for the parties as well as the children. The Court should inevitably attempt at reconciliation but on its failure, the divorce should not be withheld
The matters of matrimony gone sour are further worsened by the confrontational and accusatorial aspects, which require the proving of the fault of the other party to get a divorce, which ends up widening the rift.
Further, the law of divorce only based upon faults is not adequate to deal with broken marriages. Where there is, either no fault or the parties do not want to divulge the fault. Where marriage is merely a shell out of which the substance is gone, it serves no purpose to make them continue the facade of marriage.
Analysis of Romesh Chander vs. Smt. Savitri (1995)
On mental cruelty
In the era of a lot of awareness and discussion about people’s mental health and wellness, the grounds for seeking divorce on the basis of mental cruelty have substantially increased.
Prior to the 1976 amendment, cruelty was not a ground to claim divorce under Section 13 but rather only a ground of separation under Section 10 of the Hindu Marriage Act. Section 13(1)(i-a) postulates that a marriage may be dissolved by a divorce decree if, after solemnisation of the marriage, the respondent has treated the petitioner with cruelty.
Cruelty as a term has not been defined in the Act but has been defined and explained by the court in numerous judgments. In the landmark case of N.G. Dastane vs. S. Dastane (1975) SC, the Court noted that for conduct to qualify as cruelty, it must be such that it causes a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for him to live with the respondent.
In another case, Siraj Mohammed Khan vs. Harizunnisa Yasin Khan (1981) SC the Supreme Court acknowledged that the concept of cruelty is dynamic in nature and changes with changes in society and the standard of living; cruelty is subjective and depends from case to case; however, it must be distinguished from the ordinary wear and tear of life. The Court further noted that continued ill treatment, cessation of marital intercourse, studied neglect, allegations of unchastity, et cetera also form part of cruelty.
In the landmark case of V. Bhagat vs. D. Bhagat (1997), the Supreme Court examined the concept of mental cruelty, any conduct that makes it difficult to cohabit with the other spouse due to mental torture and suffering. Such wrongful conduct, which the other party cannot be expected to condone or forget, has to be seen with regard to the social status, education, society they live in, et cetera.
Mental cruelty is caused when one spouse alleges that the other is a mental patient, requires treatment or belongs to a family of lunatics. It’s a matter of inferences to be drawn from the circumstances. While dealing with cruelty, the court has to be cognizant that it is related to the most intimate and delicate part of an individual’s life. The allegations must not be insignificant or trifling and must have a degree of severity.
In the case of Samar Ghosh vs. Jaya Ghosh (2007), the Supreme Court examined numerous opinions on the concept of “Mental cruelty” from around the world and culled out an illustrative list of instances which may guide in dealing with such cases-
- On consideration of complete matrimonial life, acute mental pain, agony and suffering make cohabitation impossible.
- On the facts, it becomes clear that wronged party cannot be asked to put up with the conduct of the other spouse.
- Sustained abusive and humiliating treatment renders marital life miserable.
- Unilateral decision to cease marital intercourse or not to have children.
- Prolonged, unjustified conduct actually affects the physical and mental health of the other spouse.
- If the husband undergoes sterilisation or if the wife undergoes vasectomy or abortion without the knowledge or consent of the other spouse.
- The circumstances have to be viewed as a whole and a few isolated acts over the years would not amount to cruelty; ill treatment must persist for a substantial period and must be of such a severe degree as to make cohabitation extremely difficult.
- Trivial arguments and day- to- day wear and tear of married life will not qualify as cruelty.
Court’s views on irretrievable breakdown
Life is an unpredictable journey. Circumstances may arise where marriages undergo an irretrievable breakdown; a marriage may be broken beyond repair, wherein ending the relationship remains the only resort. By no fault of either party, as specified in Section 13(1), the spouses are unable to live together and no prospect of reconciliation remains, making it only a de-jure marriage and not a de-facto one. In the landmark case of Naveen Kohli vs. Neetu Kohli (2006), the Apex Court, being cognisant of the 71st Law Commission Report 1978, recommended the Parliament bring about such a ground by an amendment in the Hindu Marriage Act.
In the absence of such a provision, the Supreme Court, using its powers under Article 142 of the Constitution, has demonstrated a case by case approach in granting divorce on the ground of irretrievable breakdown. No rigid or straitjacket formula can be set, keeping in view the nuanced and dynamic nature of matrimonial matters and it remains a matter of judicial discretion.
In the Indian landscape, the question of irretrievable breakdown kept rising with such regularity that the Apex Court, in a 3-Judge Bench decision in Samar Ghosh vs. Jaya Ghosh (2007), dealt with the issue extensively. As per the facts of the case, there were allegations of adultery made against the wife but they were not proved. The divorce petition had been pending for a long time and a large part of the lives of the parties was consumed in litigation.
There was no chance of reconciliation, so the Court granted the divorce by stating that it had only done so to clear up the insolvable mess. It cautioned that mere allegations and counter-allegations or delay in the proceeding are not sufficient grounds for the grant of divorce. Some extraordinary circumstances need to be proven. The Court observed that where the ties are broken beyond repair, refusal to sever that tie does not serve the sanctity of marriage but rather shows disregard for the emotions of the parties.
In the landmark case of Shilpa Sailesh vs. Varun Sreenivasan (2023), a Constitutional Bench elucidated the ambit of the powers under Article 142 in matters of granting divorce on the grounds of irretrievable breakdown. It is not a matter of right for the parties but rather a prerogative of the court where the marriage seems to be emotionally dead and beyond salvation and the prolonged continuance would only result in cruelty upon the parties, such powers may be exercised.
Some illustrative factors were laid down which were to be considered in dealing with the question of irretrievable breakdown, for instance- duration of separation, nature of allegations, the pendency of proceedings between the parties, the result of mediation, etc. In the case of Rajib Roy vs. Sushmita Saha (2023), factors such as a long period of separation and sourness in a relationship were considered and the divorce was granted. In the case of Nirmal Singh vs. Paramjit Kaur (2011), the divorce was refused as the respondent wife was willing to resume the conjugal obligations and the Court believed that the marriage could still be salvaged.
In another case of Delma Coelho vs. Edmond Fernandes (2023), where the parties only lived together for 40 days, the Court refused the relief by stating that the initial years of marriage often seem tumultuous and require adjustment and patience and considered the case unfit for the use of powers under Article 142.
In the recent case of Dr. Nirmal Singh Panesar vs. Mrs. Paramjit Kaur @ Ajinder Kaur (2023), the question that arose before the Court was whether irretrievable breakdown ‘must’ result in dissolution of marriage via exercise of powers under Article 142, even though it is not a ground for divorce under the HMA.
The Court, while relying on the Constitutional Bench judgement of Shilpa Shailesh vs. Varun Sreenivasan (2023), stated that powers conferred under Article 142 do allow the court to deviate from the procedural as well as the substantive law; however, the ultimate aim of such departure must be to do ‘complete justice’ to the parties to balance out the equities.
Such discretionary powers must be exercised with great circumspection and must, in no case, cause injustice to any party. The parties in this case were both octogenarians and the husband sought divorce on the grounds of irretrievable breakdown, whereas the wife was willing to stay together and take care of him. The Court observed that the respondent had spent all of her life dedicated to the marriage and thus it would be unjust if the divorce was granted at this stage of their lives.
Conclusion
The Supreme Court for the first time in this case, raised the question of whether a marriage that is otherwise emotionally and practically dead should continue to exist, recognising that the consequence of keeping parties tied in an unworkable marital knot is bound to be a source of misery. However, the ground of breakdown must not be taken as a licence by any spouse to walk into court seeking divorce, claiming that his marriage has broken down irretrievably.
The court must apply a strict scrutiny test where it is satisfied that the chances of reconciliation are nil. The institution of marriage is still considered to be a pious, spiritual, and invaluable emotional life-net between the husband and the wife and is not merely governed by the statutes but also by societal social norms.
So many other intertwined bonds thrive and emerge out of matrimony, thus making it undesirable to accept the formula of irretrievable breakdown as a straitjacket formula for the grant of divorce via the extraordinary powers of the Supreme Court under Article 142 of the Constitution.
Frequently Asked Questions (FAQs)
How helpful is meditation in the disposal of matrimonial matters?
Mediation runs on the principle of no victor, no vanquished. It encourages closure as it does not provide for further proceedings like appeals, revisions, etc. It assists in mending and rebuilding relationships in an amicable and non-confrontational way. It is a more participatory way that allows parties to convey their points, explain perspectives, vent emotions and express their thoughts. The mediator can ask questions to help the parties understand each other better. The mediator may also hold separate sessions to understand the concerns of the parties, which they may not want to disclose in front of the other party, which may help him provide a balanced suggestion. Further, it also helps deal with other interrelated and collateral matters like maintenance, etc.
Where was the ground of Irretrievable breakdown of marriage initially recognised?
In 1920, New Zealand became one of the first Commonwealth countries to recognise the grounds of irretrievable breakdown for the grant of divorce, wherein if a separation agreement for three years or more was made, it was considered sufficient prima facie evidence of breakdown and became a ground to seek divorce. However, the court retained its discretion.
In 1969, the General Assembly of the Church of Scotland accepted a report that substituted the breakdown of marriage in place of matrimonial offences as a ground for divorce. They rightly recognised that it is often matrimonial offences or a result of deteriorated marriages, which means that effectively the breakdown occurs prior to committing a fault or rather due to it. They accepted the period of separation of two years as evidence of breakdown.
How can delay be avoided in the disposal of matrimonial cases?
Firstly, speedy disposal can be obtained by resorting to mediation as an alternative to litigation proceedings.
Secondly, where mediation fails and the case is returned to the court, there must be no or minimal adjournments once the proceedings begin.
Thirdly, a time frame must be set for the disposal of the case. The Karnataka High Court in 2023 directed that courts should make every effort to dispose of divorce cases maximum within a period of 1 year.
References
- https://www.researchgate.net/publication/360784490_Mediation_In_Matrimonial_Disputes_A_Judicial_Perspective
- https://www.menwelfare.in/judgements/court-should-dispose-the-divorce-case-within-time-limit-of-one-year-karnatka-hc/#:~:text=year%20%3A%20Karnatka%20HC-,Court%20should%20dispose%20the%20Divorce%20case%20within,of%20One%20year%20%3A%20Karnatka%20HC&text=The%20Karnataka%20High%20Court%20recently,time%20limit%20of%20one%20year.
- https://jajharkhand.in/wp/wp-content/uploads/2020/05/response_pdjs.pdf
- https://www.advocatekhoj.com/library/lawreports/breakdownofmarriage
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