New Delhi: The Supreme Court has observed that 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 in a case in which a wife seeks divorce.
The apex court made the remarks on September 6 while allowing a petition filed by a woman seeking a divorce as the couple had been living separately for 15 years. "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", a division bench of Justice Sanjiv Khanna and Justice M M Sundresh observed in this regard.
The apex court stressed that 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. The bench said that Section 13(1) of the Hindu Marriage Act of 1955, sets contours and rigours for the grant of divorce at the instance of both the parties.
The bench said 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. Even with such a liberal construction of matrimonial legislations, the socioeconomic stigma and issues attached to a woman due to divorce or separation are raised," said the bench.
It noted that resultant stigmatization hinders societal reintegration, making a woman divorcee socially and economically dependent. Justice Sundresh, who authored the judgment on behalf of the bench, said courts must adopt a holistic approach and endeavour 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, said Justice Sundresh. The bench said 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," said Justice Sundresh.
The top court said 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 court, while applying these provisions, must adopt ‘social-context thinking’, cognisant of the social and economic realities, as well as the status and background of the parties," it said.
The bench said that on the question of burden in a petition for divorce, the burden of proof lies on the petitioner, however, the degree of probability is not one beyond a reasonable doubt but of preponderance.
The bench said Section 23(1) of the Act of 1955 is a word of caution to check cases of abuse and misuse of law to get relief and 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.
The bench said, in the present case, “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 an approval from this Court”.
It said the trial court and the high court adopted a hyper-technical and pedantic approach in declining the decree of divorce. The bench said both the parties have moved away and settled in their respective lives and there is no need to continue the agony of a mere status without them living together.
The top court said: “We are inclined to set aside the judgment of the Trial Court as confirmed by the High Court of Chhattisgarh... Accordingly, they are set aside and the appeal stands allowed by granting a decree of divorce”.
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