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Synopsis

While granting divorce to a couple, the Supreme Court recently said that there was no need to continue the agony of a mere status without them living together.

A bench of Justices Sanjiv Khanna and M M Sundresh noted that both the High Court and the trial court adopted hyper technical approach, emphasising upon "holistic approach" and consideration of social context thinking in view of stigma attached to it.

"For a decade and half, the parties have been living separately. As fairly stated at the Bar, the marriage does not survive any longer, and the relationship was terminated otherwise except by a formal decree of divorce. The status quo continues, awaiting approval from this court," the bench said.

In the case at hand, the marriage was solemnised in the year 2002. It fell into rough weather after the birth of couple's child. Disputes started between the parties from 2006 onwards. 

The wife registered a complaint under Section 498A of the Indian Penal Code, 1860, and Sections 3 and 4 of the Dowry Prohibition Act, 1961, while the respondent-Husband had questioned the character of the appellant-wife, alleging that she was living in adultery and had given birth to a child during the period of non-cohabitation. 

The bench said, "...an element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce."

It also pointed out that Section 13(1) of the Act of 1955 sets contours and rigours for grant of divorce at the instance of both parties.

"Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism," it said.

Emphasising the adoption of "the social context thinking", the court said that the question of burden in a petition for divorce, burden of proof lies on the petitioner. "However, the degree of probability is not one beyond reasonable doubt, but of preponderance," the bench said.

It said that even with a liberal construction of matrimonial legislations, the socio-economic stigma and issues attached to a woman are raised.

"The resultant stigmatization hinders societal reintegration, making a woman divorcee socially and economically dependent. Courts must adopt a holistic approach and endeavor to secure some measure of socio-economic independence, considering the situation, case and persons involved. An empathetic and contextual construction of the facts may be adopted, to avert the possibilities of perpetuating trauma mental and sometimes even physical - on the vulnerable party. It is needless to say that the courts will be guided by the principles of equity and may consider balancing the rights of the parties," the bench said.

Further, referring to Section 23(1) of the Hindu Marriage Act of 1955, the bench said that it is a word of caution to check cases of abuse and misuse of law to get relief. 

"To elaborate, due to her unenviable position, a wife may not be in a state to raise her voice and express her dissent, which cannot be construed as a passive consent," it said.

The court underscored that the object and purpose of these provisions is to check any party taking advantage of social and economic inequalities between the sexes 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.

"The court must also keep in mind that the home which is meant to be a happy and loveable place to live, becomes a source of misery and agony where the partners fight. When there are children they become 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 at loggerheads, remain unmindful and unconcerned about the psychological and mental impact it has on her/him," the bench said.

In the present case, the bench said that it had very little to say as they did speak for themselves as both the parties had moved away and settled in their respective lives".

Therefore, acting on the appeal of the wife, the court set aside the trial court's judgment which as confirmed by the Chhattisgarh High Court.

The petitioner wife was represented by advocate Dushyant Parashar while the husband was led by advocate Smarhar Singh.

Case Title: SMT. ROOPA SONI V. KAMALNARAYAN SONI