Dissolution as the Resolution: Use of Section 13-B of the Hindu Marriage Act, 1955 in Appellate Jurisdiction(s)

Introduction

A matrimonial dispute, at the appellate stage, is probably quite old, acrimonious, and unlikely to result in reconciliation. Often, appellate courts seized of appeals in matrimonial cases encourage the couple to mediate, in the hope that a consensus for resolving the dispute emerges. Traditionally, such mediation is seen as having two mutually exclusive but plausible outcomes, dissolution, or resolution. However, the traditional dichotomy of these two outcomes in a mediation exercise need not be seen as inherently incompatible with one another. After all, if the disputing parties in a marriage are fundamentally incompatible as a couple and come with a history that is symptomatic of the marriage having irretrievably broken down, the best resolution to the dispute, is often dissolution. Where a couple engaged in such an irredeemable marriage are provided the option of parting ways, the dispute can be resolved through a dignified manner.

As the counsel to warring parties before the Division Bench of the Karnataka High Court, the question that is regularly posed is whether the matter was for resolution or dissolution. The only right response to this age-old question in matters where the parties seek to respectfully close all pending litigations against each other remains, “dissolution is the resolution”.

Though as a matter of principle, the courts have travelled a far distance from the day and age when moralistic condemnation of divorce was considered a legal mandate, there is a question as to how, legally, the court, in an appeal arising out of a matrimonial dispute, grant a decree of dissolution of marriage through the channels of mutual consent under Section 13-B¹ of the Act?

The argument this paper proposes is that in the absence of a residual clause under Section 13², allowing divorce on just and equitable reasons, appellate courts must increasingly exercise their discretionary powers to allow joint petitions for divorce by mutual consent under Section 13-B of the Act presented along with a compromise petition, to amicably resolve disputes and allow both parties to move ahead with their respective lives, at the stage of appeal.

Gaps in Section 13 of the Hindu Marriage Act, 1955

Section 13 of the Hindu Marriage Act, 1955 (the Act) drafted with emphasis on the Hindu beliefs that marriage is sacred prescribes only contentious grounds to obtain a divorce under Section 13 of the Act. Contrary to the concept of marriage being a union of contract in various countries of the world, in India, a marriage is born, governed, and regulated by religious sacraments.³ In fact, any contracts regulating the rights and obligations of the husband/wife either in the form of a pre-nuptial contract or any other agreements are void and unenforceable in India. Any petition for divorce, with the exception of a petition for grant of divorce under mutual consent is an adversarial litigation where the parties are called upon to prove the grounds on which they seek divorce. These fault-based grounds include nine distinct grounds available to both parties under Section 13(1) and four distinct grounds which are available exclusively to the wife under Section 13(2).⁴

The grounds under Section 13(1) of the Act include adultery, cruelty, desertion, religious conversion, unsoundness of mind, virulent (leprosy) and venereal communicable diseases, religious reticence, on one of the spouses being untraceable for a continuous period of seven (7) years, and if the parties have already obtained a decree of judicial separation or restitution of conjugal rights and have not resumed cohabitation for a period of one year or more. These grounds are available to both husband and also the wife. A petition under any of the above grounds would have to be proved by the petitioner.⁵ For instance, if there is a petition filed alleging unsoundness of mind, the petitioner must necessarily prove the same before the Court by leading positive evidence of unsoundness of mind⁶, which could include medical evidence comprising of psychiatric evaluation, doctor’s prescription, among others. Such evidence must be examined by the Judge, who uses their discretion to either allow or dismiss the petition.⁷

Whereas the grounds under Section 13(2) exclusively available to the wife include: bigamy, husband being found guilty of rape/sodomy/bestiality, when a decree of maintenance has been ordered against the husband, and child marriage (when the marriage is solemnised before the girl child is 15 years old and challenged before she turns 18 years old).

While much has been written and said about the archaic language of the grounds as stated above⁸, the glaring lacuna in Section 13 remains the absence of a residual provision allowing divorce as it is just and equitable.⁹

To prove allegations under the grounds of Section 13, parties must provide evidentiary statements and documents to substantiate the fault/harm caused, with the inexorable side effect of maligning the character of their estranged spouse.¹⁰ Aggravating this highly emotional and personal process of trial, constricted by the limited scope of Section 13, in the absence of any residual clause in the section, Judges of the Family Court have no choice but to eventually pass orders which are invariably detrimental to one of the parties.

Therefore, granting divorce under Section 13 suffers from a deep lacuna wherein, despite making the obvious conclusion that the marriage is irretrievably broken down, established through evident facts including instances where the parties have been residing separately/litigating for several years, and where there is no possibility of the parties residing together, Family Court Judges are unable to grant divorce on the basic ground that it is just and equitable to do so.

In these circumstances, the foundational element of the Family Court decree, being that of divorce itself is challenged before the appellate courts. Due to the fact that invariably one of the parties feel aggrieved by the findings of the court, given that they are rendered through an adversarial system. Thereby, drawing out the pain and agony of the parties forcefully subsisting in the marriage union.

Possible solutions at the appellate stage (Supreme Court)

Section 28 of the Act allows for appeals against “all decrees made by the Court in any proceeding under the Act” (except for the subject of costs)¹¹, within ninety days from the date of decree or order.

In practice, 70-75% of contested divorce decrees end up being challenged for issues ranging from issues on custody, maintenance, the factum of divorce, adverse findings, among others. However, due to the Family Court Judges being constrained to pass the divorce decree on limited grounds, the very foundational aspect of divorce being granted gets challenged in the appellate fora. To elaborate, a warring couple who have litigated for years and are both desirous of receiving a divorce,

will be constrained to challenge the divorce decree as it records findings which may be detrimental. In the alternative, if the divorce itself was decreed based on just and equitable reasons, the parties would only have to challenge the ancillary aspects (such as alimony, custody, etc.) on which the parties have not arrived at a settlement.

Another challenge emanating from the ongoing appeal process in the case of divorce proceedings is that Section 15 of the Hindu Marriage Act, 1955¹², bars the parties from truly moving on by entering into another marriage until the appeal process has been dismissed. Therefore, despite the parties living as a divorced couple for all practical purposes, they are unable to legally move on from one another.

In scenarios where the parties continue to litigate due to unfavourable findings of the Family Courts and first appellate courts, the parties are constrained to approach the Supreme Court for judicial relief¹³, as the Supreme Court has previously allowed divorces on the principle of irretrievable breakdown of marriage, by exercising its extraordinary power under Article 142 of the Indian Constitution¹⁴, despite the principle not having a place in the statute books.¹⁵

The principle of irretrievable breakdown of marriage as discussed in the Seventy-First Report of the Act¹⁶, found the principle to be “a good ground of dissolving marriage”. The report found that restricting the grant of divorce to scenarios where there is a “particular offence” or “matrimonial disability” would lead to injustice in cases where neither party is at “fault” or when the parties in the marriage do not want to divulge such information.

From the principle of irretrievable breakdown of marriage, the jurisprudence on settlement of divorce proceedings before the Supreme Court has steadily proceeded towards converting the contested petitions into divorce under mutual consent under Section 13-B of the Act, to end protracted litigation and alleviate the prolonged agony of the parties.¹⁷ In the 1997 case of Ashok Hurra v. Rupa Bipin Zaveri¹⁸, the Supreme Court examined the facts and circumstances of the case and found that the marriage between the parties was dead and irretrievably broken down. The Supreme Court based its finding on the fact that there were multiple allegations and counter-allegations between the parties across various courts, there was delay in disposal of the matter, among others. The Supreme Court found that while none of the factors by itself warranted divorce by mutual consent, the cumulative effect of various factors “show that the marriage is dead, both emotionally and practically”. Therefore, the Supreme Court proceeded to grant divorce by mutual consent by invoking its extraordinary jurisdiction under Article 142, while directing that an appropriate safeguard be placed to enable the wife to maintain a decent living, in the interest of ensuring complete justice.

In the 2001 case of Anjana Kishore v. Puneet Kishore¹⁹, the Supreme Court declined to transfer the petition and directed the parties to file a joint petition for divorce by mutual consent before the Family Court along with the compromise petition between the parties which was filed before the Supreme Court. Discussing the twin aspect of mutual consent divorce being a cooling-off period of 6 months as prescribed under Section 13-B(2), the Court also directed the appropriate Family Court to waive off the cooling period by invoking its powers under Article 142, on considering the facts and circumstances as brought forward by the parties during the course of the proceedings “to do complete justice in the case”.

However, in the 2017 case of Amardeep Singh v. Harveen Kaur²⁰, the Supreme Court removed the necessity to invoke Article 142 and proceeded to allow the waiver of the cooling-off period simply on the finding that it “perpetuated the agony” of the parties when all attempts to “resuscitate the marriage have gone in vain”. By removing the use of Article 142 in rendering the said judgment, the Supreme Court essentially opened the doors of Section 13-B(2) waiver to subordinate courts.

Finally in 2018 case of Bhupender Singh v. Reema²¹, the Supreme Court recorded the terms of settlement between the parties and allowed the joint petition of divorce by mutual consent based on their interaction with the parties and on ascertaining that the parties have an “independent and conscious decision”. The Supreme Court further held that given all disputes have been settled between the parties, all pending litigations were terminated. Further, the parties were barred from initiating any fresh civil or criminal proceedings on account of the matrimonial disputes between them. In this case again, the Supreme Court did not find it necessary to invoke its extraordinary powers under Article 142 of the Constitution.

While the Supreme Court offers relief to warring parties on an appreciation of the irretrievably broken down nature of the marriage, it is an expensive and tedious process to move the matter before the Supreme Court due to jurisdictional inconveniences. Therefore, it becomes imperative for the judicial mechanisms to offer a quicker and more convenient remedy.

Appeal and finality vis-à-vis lacunae of Section 13 before the High Courts

It is settled law that the High Court exercising power as the first appellate court has the authority to enter into questions not only of law but also facts, as the appeal is a continuation of the suit.²² Therefore, an appeal is essentially the rehearing of main matter where the appellate court can “reappraise, reappreciate and review” the entire evidence and come to its own conclusion.

Given the above, it is well within the jurisdiction of the High Courts to settle matrimonial disputes through their discretionary power, by evaluating the facts and circumstances of each case.

In the 2019 case of Vivek M. Nashi v. Mandira M.P.²³, the appellant challenged the divorce decree passed under Section 13(1)(i-a) of the Act on being aggrieved by the amount of alimony ordered by the Family Court. Before the High Court of Karnataka, the parties came to an understanding on the amount of permanent alimony to be paid. After which, the High Court directed the parties to file an affidavit withdrawing all the allegations, petitions and complaints made against each other. Further, the High Court modified the Family Court judgment with regard to the permanent alimony, however, kept all other aspects of the judgment intact.

In the 2021 case of Suresh S. v. Lakshmi²⁴, the High Court found that the parties have negotiated a settlement and come to the decision to dissolve their marriage through mutual consent. Further, the High Court took the joint petition under Section 13-B on record and included it as part and parcel of the judgment. The Court further placed reliance on the Supreme Court decision of Amardeep Singh case²⁵, to waive off the cooling period stating the reason that the parties have been living separately for over a decade.

In the 2023 case of Samvit Dhar v. Rhythma Kaul²⁶, the High Court of Delhi interacted with the parties “for a substantial time” and meticulously recorded the voluntary settlement between the parties, wherein, they amicably settled all the disputes between them, by not only filing a joint petition of mutual consent divorce before the High Court but also by detailing the payment plan of all monetary dues for the cases initiated, along with withdrawal of the cases levied against each other.

These judgments of the High Court(s) bring forward a welcome trend of finally deciding on the matrimonial disputes between warring parties, by allowing joint petitions of mutual consent divorce at the appellate stage. Further, in highly contentious proceedings where no stone have been left unturned with respect to damaging allegations against the other party and multiplicity of proceedings (with civil and criminal charges being invoked), the High Court(s) have been able to put all contentions to rest at once, thereby allowing the parties to once in for all be free of the shackles of a broken marriage and move on in all aspects of their lives.

Conclusion

Hindu Marriage Act, 1955²⁷, albeit being considered to govern and regulate “sacred institutions”, has the tendency to propagate long pending disputes by tying the hands of the court to grounds for divorce under Section 13 of the Act. In the absence of a residual provision in Section 13, allowing divorce on “just and equitable” reasons, the Family Court Judges are forced to grant divorce decrees with detrimental findings against one of the parties, thereby, pushing the other party to challenge the divorce decree through the appellate mechanisms.

While the highest court of the Indian land, being the Supreme Court has previously invoked their extraordinary jurisdiction under Article 142 to grant divorces under the principle of irretrievable breakdown of marriage, the process of doing so remains inaccessible due to financial and geographical challenges. However, the recent decisions by the Supreme Court have done away with the need of Article 142, to grant divorces under Section 13-B (mutual consent divorce), making them binding precedent on all subordinate courts.

Additionally, the High Court(s) as first appellate courts have the authority to reappreciate the facts and findings of lower courts to come to their own conclusions as the appeal forms a continuation of the trial. Given the trajectory of the judicial precedent, the High Court(s) have been placed in a better position to decide matrimonial disputes finally, by allowing joint petitions for mutual consent divorce at the appellate stage. Thereby, reducing multiplicity of proceedings and the burden on courts. For the parties in concern, receiving a comprehensive judgment from the High Court of their respective jurisdiction, settling all pending litigations, enables them to practically move on with their life.

In the absence of leeway by the legislation with respect to the grant of divorce, parties, their counsels, and the Judges who hear the case have to come up with creative solutions to resolve disputes. As the society continues to evolve from the archaic notions of marriage, it becomes increasingly important to understand that in some cases, dissolution is the only resolution.