The power to grant divorce on the ground of irretrievable breakdown of marriage is exercised by the Supreme Court under Article 142 of the Constitution of India to do complete justice to both the parties. Such a power is not vested in the High Courts leave alone the Family Courts.” – D vs A 2023 DHC 6803 -DB
Section 13 HMA – High Court has committed error of law by relying on the principle of irretrievable breakdown of marriage to dissolve the marriage between the parties in a contested divorce proceeding – V E Maya vs K S Vetrivel SLP(C) 11761 of 2022
Section 19 Family Courts Act – Section 28 HMA – What is the period of limitation for filing an appeal against a decree or order passed by a Family Court under the Hindu Marriage Act, 1955 ? Delhi High Court noticed that there is an inconsistency between Section 28 of HMA which prescribes a period of 90 days for filing an appeal and Section 19 of the Family Courts Act which prescribes a period of 30 days for filing an appeal. The court held that the Family Courts Act will prevail and therefore the the period of limitation for filing an appeal against a judgment or order of the Family Court is thirty days – Pallavi Mohan vs Raghu Menon 2023 DHC 6586
Section 24 HMA – The wife is highly qualified and has an earning capacity, but in fact she has been earning, though has not been inclined to truthfully disclose her true income. Such a person cannot be held entitled to maintenance – Niharika Ghosh @ Niharika Kundu vs Shankar Ghosh – 2023 DHC 6553
Section 7A HMA (applicable in Tamil Nadu) – Section 7A required the intending spouses to declare and express to each other their willingness to take each other as spouses and symbolically garlanding each other and tying a “Thali”. In S. Balakrishnan Pandiyan v Inspector of Police, 2014 (7) MadLJ 651, Madras High Court interpreted the procedure of declaration by the intending spouses “in the presence of relatives, friends or other persons”. Now, the Supreme Court held that this view is erroneous as it is premised on the assumption that every marriage requires a public solemnization or declaration. The court observed: Such a view is simplistic because often due to parental or pressure among kinship groups, or caste/community institutions, couples intending to enter into matrimony, may not be able to, for the reasons of such opposition- hold or give such a public declaration. Doing so would imperil their lives or could in the very least likely result in danger to their bodily integrity or at worst, a forceable or coerced separation of one from the other. It is not hard to visualize other pressures being brought to bear upon two individuals, who are otherwise adults and have exercised their freewill. To superimpose the condition of a public declaration, which is absent in section 7A , in the opinion of this Court, it is not only narrowing the otherwise wide import of the statue but also would be violative of the rights under Article 21 of the Constitution of India – Ilavarasan vs Superintendent of Police 2023 INSC 813.
Section 13 HMA- 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. (Para 13-15) – Roopa Soni vs Kamalnarayan Soni | 2023 INSC 814
Section 13 HMA – 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 – 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. (Para 15) – Roopa Soni vs Kamalnarayan Soni | 2023 INSC 814
Section 23 HMA – Condonation of cruelty by the petitioner in a divorce petition filed on the ground of cruelty, and non-suiting a decree of divorce – It has to be seen in context with the position of a man and woman in a marital relationship. In other words, Section 23(1) 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. – 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 proviso carves out certain exceptions with which we are not concerned -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. – Roopa Soni vs Kamalnarayan Soni | 2023 INSC 814
Hindu Marriage Act ; Section 16 – Hindu Succession Act ; Section 6 – Right of children from void/voidable marriages to their parents’ share in Hindu Undivided Family Property (governed by Mitakshara law) – For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above – Revanasiddappa v. Mallikarjun 2023 INSC 783
Hindu Marriage Act ; Section 16 – Hindu Succession Act ; Section 6 – The very concept of a coparcener postulates the acquisition of an interest by birth. If a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child. Holding that the consequence of legitimacy under sub-sections (1) or (2) of Section 16 is to place such an individual on an equal footing as a coparcener in the coparcenary would be contrary to the plain intendment of sub-section (3) of Section 16 of the HMA 1955 which recognises rights to or in the property only of the parents. In fact, the use of language in the negative by Section 16(3) places the position beyond the pale of doubt. We would therefore have to hold that when an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person. Revanasiddappa v. Mallikarjun 2023 INSC 783
Hindu Succession Act ; Section 6 – Explanation 1 to Section 6 provides a fictional expedient, namely, that his share is deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death. Once that assumption has been made for the purpose of ascertaining the share of the deceased, one cannot go back on the assumption and ascertain the shares of the heirs without reference to it, and all the consequences which flow from a real partition have to be logically worked out, which means that the shares of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life-time of the deceased. In effect, the Bench held that the inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition – Derha vs Vishal | 2023 INSC 785
“Despite irretrievable breakdown of marriage, keeping the parties together amounts to cruelty on both sides. Which is precisely the case at hand.” In 2012, a Husband filed petition seeking restitution of conjugal rights – Dismissed by Family Court. Then he filed divorce petition – Dismissed by Family Court. High Court also dismissed appeal. Now after a decade in litigation, he got the marriage dissolved by the Supreme Court which said that this is a classic case of irretrievable breakdown of marriage. According to the court, continued bitterness, dead emotions and long separation, in the given facts and circumstances of a case, can be construed as a case of “irretrievable breakdown of marriage”, which is also a facet of “cruelty” – R vs S