Posted in Family Law, Marriage and family

Delhi High Court playing with “Irretrievable Breakdown of Marriage”

Is “irretrievable breakdown” of marriage is ground for dissolution of marriage by divorce, under Hindu Marriage Act, 1955? The answer to this question clearly is that no such express provision has been incorporated by the Parliament in Hindu Marriage Act, 1955 (HMA). Then why did the Delhi High Court by its Judgement dated 21st October 2016, in the case of Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)], agree to grant divorce on the ground of “irretrievable breakdown” of marriage?

Precisely a month before the above-mentioned judgement, the Delhi High Court in the judgment dated 21st September 2016, in case of Mini Appa Kanda Swami v. M. Indra [(2016) 234 DLT 243 (DB)], came up with decision that the High Court lacks the jurisdiction to grant divorce on the doctrine of “irretrievable breakdown”.

Why did the Delhi High Court reverse its stance on granting divorce on the basis of the “Doctrine of Irretrievable Breakdown”? Is it following the principles of stare decisis? Many more question arises after the Sandhya Kumari v. Manish Kumar case.

The rationale given by Delhi High Court, in the said judgment[1], was that, by virtue of Madhvi RameshDudani v. Ramesh K. Dudani [2006 (2) Mh.L.J. 307], Shrikumar V. Unnithan v. Manju K. Nair, [2007 (4) KHC 807],  V. Bhagat v. D. Bhagat [(1994) 1 SCC 337], andNavinKohli v. NeeluKohli [(2006) 4 SCC 558], “the concept of cruelty has been blended by the courts with irretrievable breakdown of marriage.”Hence, directly or indirectly, Delhi High court has read doctrine of irretrievable breakdown under ‘cruelty’, which is a ground for granting divorce.

Now coming to Madhvi RameshDudanicase, divorce was granted on the ground of cruelty, and it was only an observation of the Bombay High Court that marriage has been irretrievably broken. There was no observation regarding the blending of the same.

Moving on to another case of  V. Bhagat v. D. Bhagat, theApex Court has said that, HMA does not permit dissolution of marriage on doctrine of “irretrievable breakdown”, and cautioned to keep that in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a).

The Apex court gave a clarification that “Irretrievable breakdown of the marriage is not a ground by itself … The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.”Therefore, this case did not suggest any blending of cruelty with irretrievable breakdown of marriage.On the other hand, it granted divorce on that ground of mental cruelty.

Now here the word”court” can be widely interpreted to include “HighCourt” or any other court, but moving along the line with Anil Kumar Jain v. Maya Jain [(2009) 10 SCC 415], where the Apex court has held that only the Supreme Court can invoke“its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage ties had completely broken and there was no possibility whatsoever of the spouses coming together again.”

It further indicated that, the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution cannot grant divorce despite the fact that the marriage has irretrievably broken down.

Another decision which was mentioned in Sandhya Kumari case, was NavinKohli v. NeeluKohli case. In which the Apex Court discussed major cases where, either the divorce was granted under Section 13B of HMA, stating “irretrievable breakdown” of marriage; or, under Article 142, when divorce was prayed under Section 13.  Mostly, the alleged grounds for divorcee were adultery, desertion, or cruelty. Navin Kohli casewas alsosolved by granting divorce on ground of cruelty and not by invoking the doctrine of “irretrievable breakdown”.

Coming back to the Sandhya Kumaricase, in which the breakdown theory (Doctrine of “irretrievable breakdown”) and fault theory (mental cruelty) regarding divorce has been blended by the Delhi High Court, while foundation of thetwo, lies on two different kinds of bed rocks.

This judgement[2] has violated the precedent laid down by Apex Court in the case of Vishnu Dutt Sharma v. Manju Sharma [(2009) 6 SCC 379], by indirectly reading “irretrievable breakdown” of marriage as ground for divorce. In Vishnu Dutt Sharma Case it washeld that Supreme Court cannot add “irretrievable breakdown” of marriage as ground for divorce under section 13, as that would amount to amending the act, which is thefunction of legislature.

Delhi High Court in Sandhya Kumari Casehas either, acted arbitrarily or, opened a new road  of hope for people who would like to seek divorce easily, by reading “irretrievable breakdown” in cruelty. This decision can be appraised for judicial activism, as much as, it can becriticized, for not following the principle of Stare Decisis.

[1] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]

[2] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]\



ABOUT THE AUTHOR

dhruv-chandora

DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

Posted in Marriage and family, Professional Ethics

Lawyer-Client relationships in divorce cases

This article has been written by Aditi Gupta. Aditi is currently a student in National Law School of India University, Bangalore.

The relationship between a lawyer and a client is one of the most significant parts of the legal process. It has to be a relationship of absolute trust and respect from both sides. In family disputes, especially divorce cases, the lawyer-client relationships are very sensitive.

Section 13 of The Family Courts Act, 1984 restricts the appearance of lawyers in the family courts, thus allowing the disputing parties to represent themselves in court. However, the major issue remains whether the participation of lawyers will be beneficial or detrimental to the case of the parties or take away from the decorum of the Court. However, the number of self-represented litigants or pro-se litigants in India is increasing every year and this provision favours the trend.

According to Sec. 13 of Family Courts Act[1], “right to legal representation-notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as a right, to be represented by a legal practitioner.”

The Indian Courts have held that disputes of personal nature should be adjudicated themselves. In Leela Mahadeo v. Mahadeo Sitaram Joshi[2], the Court was of the opinion that the intention behind Section 13[3] was that it may be advisable to adjudicate matters related to matrimonial breakdown or family disputes as far as possible by restricting entry of lawyers in the courts and hearing the parties to the dispute themselves and by seeking assistance from counsellors due to the personal nature of such disputes.[4]

This provision of the Act gives rise to the question whether the participation of lawyers will be detrimental or useful to the performance and decorum of a family court. The Act prohibits the participation of lawyers in the family courts on behalf of their clients but it authorises the courts to appoint amicus curiae. The advocates argue that this provision deprives the people approaching the Courts of their constitutional right to engage a lawyer of their choice for arguing their case.[5]

However, the Act does not impose a complete ban on entry of lawyers in the Courts and prohibit representation by advocates before the Family Courts. The Act provides for hearing persons other than the parties to the dispute while hearing a case. Section 13 of the Act[6] allows the Family Courts to appoint amicus curiae and seek their assistance and Section 5 of the Act[7] also allows “the association of institutions or organizations engaged in welfare and persons working in the field of social welfare, or professionally engaged in promoting the welfare of the family”.  Therefore, it can be argued that if the Family Court hears anyone other than a party to the dispute, whether it be as amicus curiae or as a legal expert, it must extend this permission to lawyers and allow a party to be represented by a legal practitioner if the said party makes an application requesting the Court for the same.[8]

Though sometimes the participation of the lawyer is an obstacle in proper dispensing of justice, their assistance can sometimes serves a significant purpose. It has been often urged that Section 13[9] should be amended to provide for allowance of advocates to represent the parties if the court feels it to be required in a particular case or if the court is of the opinion that permitting it is necessary for ensuring justice and would facilitate looking into the facts and circumstances of the case.[10] It has also been suggested that an amendment to allow representation by lawyers subject to a proviso which authorises to the Court to terminate a lawyer’s vakalatnama if he employs “delaying tactics by unnecessary adjournments” be made. Such a proviso would ensure that the lawyers are not able to get adjournments and family disputes can be disposed of speedily.[11] The parties would be able to control their own destiny as well as have the comfort of knowing that they can bring in a lawyer if he or she so chooses or feels the need for one.[12]

Such amendments are being considered as self-representing litigants often have difficulty filling the required forms and filing them in the court. Such litigants employ provisions like temporary orders much less, frequently obtain less maintenance after divorces, have less access to tax advice and also utilize the options for alternative dispute resolution much less than those who engage the services of legal practitioners.[13]

Though the Advocates Act and the Bar Council of India Rules provides for a code of professional conduct for legal practitioners. India currently has no set of guidelines or rules laid down by the Court or under any legislation that would be specifically applicable to lawyers dealing with matters of family law such as marital disputes and other conflicts. However, laying down a specific code of ethics or duties to be followed by legal practitioner dealing with such matters and appearing before the Family Courts would allow simplified and proper conduct of lawyers in the Courts which would ensure that the interests of the clients are better represented and the decorum of the court is maintained.

Section 13 of the Family Courts Act prohibits the participation of lawyers in the family courts but does not completely exclude third parties to represent or assist the two disputing parties. Therefore, it has been suggested that limited entry of legal practitioners in the family courts could prove beneficial to the clients and their interests could be better represented.

[1] Section 13, The Family Courts Act, 1984.

[2] Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi, AIR 1991 Bom 105.

[3] Section 13, The Family Courts Act, 1984.

[4] Dr. D.K. Tiwari et al, Commentaries on The family courts Act, 1984, 123 (1997).

[5]Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[6] Section 13, The Family Courts Act, 1984.

[7] Section 5, The Family Courts Act, 1984.

[8]Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[9] Section 13, The Family Courts Act, 1984.

[10]Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[11] Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[12]Austin Sarat et al, Law and Strategy in the Divorce Lawyer’s Office, 20, Law & Soc’y Review. 93, 94 (1986).

[13] Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 (3),  Family Law Quarterly, 421,449, (Fall 1994).

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Posted in Debatable topics, Marriage and family, Muslim Law, Personal Laws

Triple Talaaq: Religious empowerment or unjust vindicament

This article has been written by Soma Sarkar. Soma is currently a second-year student at Chanakya National Law University.

 

At-talaaqu marrataan: fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum `an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa.

Talaq, Talaq and Talaq!!! Speak the three words in and the civil contract in the garb of Nikah comes to an end. Isn’t it a strange divorce without any justification to the other party and no judicial process requires to be ensued. One spouse enjoins his right, the other mourns over it. One exercises his freedom right at the cost of paralyzing the other with pain and agony, financial crisis and compelling her to lead a dog’s life. In a country where law is the king of kings and vox populi is of paramount importance, it is in the very same country such vindicament being practiced inducing us to believe that there is no Messiah of the victims. No, no not even law.

Talaq-i-Bid’ah, the sinful form of divorce or the best to say the innovated one can be defined as a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (tuhr), i.e., when man says: “I divorce you, I divorce you, I divorce you.”  “The Affair of the Necklace” is a very popular episode said to be dealing with this talaq. Aisha who was Prophet’s wife, as the story goes on her way to the city lost her precious pearl necklace. While as a bee she was in search of it in the desert bushes, the caravan went ahead leaving her all alone. In this hour of need she was escorted by a stranger to the city. Seventeenth century was the time period so peoples’ whispering about the incident would not make anyone to bat an eyelid. In order to uproot the rumors along with the character assassination attempts from the grass-root level, the Prophet made a ruling that whoever raising an allegation on Aisha must produce 4 eyewitnesses to the misconduct or face punishment. Credit goes to the mullahs to twist a pro-women ruling into a whip to be cracked on the women themselves. So, today the existence of Sharia brings into light the perverted version of the episode.

 The Apex Court decisions too has been ambigious on the matter in question. Where a writ petition was filed to declare Muslim Personal Law, which enmpowers a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void and offending Articles 13, 14 and 15 of the Constitution of India in the case of Ahmedabad Women’s Action Group (AWAG) and others v. Union of India[1]. The Court left the issue down in mouth on the ground that it involved State policies. So the remedy isn’t in form of judicial process that means it must be sought elsewhere. Simultaneously the efforts made by the court to inject some safeguards into the talaq process cannot be given cold shoulder. For a talaq to be effective, it must be pronounced. In Shamim Ara v. State of UP and another[2], a mere plea taken in a written statement of a divorce having been pronounced in the past was held not to be treated as effectuating a talaq. Instead, a talaq has to be ‘pronounced’, i.e. it has to be proclaimed, uttered formally and articulated. Therefore, the Court has introduced a condition precedent for the effectiveness of a divorce.

The approach of the Supreme Court in Danial Latifi v. Union of India[3] in the course of interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court upheld that the validity of the Act would be unconstitutional if not construed to mean that women should get a reasonable and fair provision and maintenance.

It has taken 60 years of independence to make us realize that our constitutional values cannot be segregated from our cultural inheritance. Presently it has become the job of the courts to enforce constitutional values. When all forms of gender injustice has been overpowered and captured then why should this stand as a pillar of muslim society? The laws in Egpyt, Iraq, Jordan, Kuwait, Morocco, the Philippines, Sudan, Syria, the UAE and Yemen have  put down their feet. Why should the All India Personal Law Board be allowed to paade these inhuman and illegal practices in the 21st century?

[1] (1997) 3 SCC 573.

[2] (2002) 7 SCC 518.

[3] (2001) 7 SCC 740