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Supreme Court examines self; ‘Are we being too liberal with law in granting divorce?’

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By NewsGram Staff Writer

A bench of Supreme Court has decided to examine whether the top court should grant divorce to couples on the ground of irretrievable breakdown of marriage, without taking into consideration the mandatory 18-month period of separation.

Under Article 142 of the Constitution, the Supreme Court has been exercising its authority to grant divorce to married couples even when the Hindu Marriage Act demands the couple to stay apart for 18 months before separating with mutual consent.

The Article 142 states that the Supreme Court has the power to deliver any order required “for doing complete justice.” The court has used this act as a provision to grant divorce in many cases, dispensing the six-month waiting period after a judicial separation of one year, which makes it 18 months under Section 13B of the Act.

As reported in The Indian Express, the government has informed the top court that there is no proposal in the Article to include irretrievable breakdown of marriage as one of the conditions to grant divorce. However, a bench of Justices Ranjan Gogoi and N V Ramana has decided to examine whether judges should override the legislative will. As per the report, while negotiating a bunch of petitions wherein couples wanted the waiting period to be dissolved since there was an “irretrievable breakdown of marriage,” Justices Gogoi and Ramana conjectured on whether they should exercise such power against what the Act permits.

They asked Attorney General Mukul Rohatgi for his perspective. AG Rohtagi reportedly stated that the legislature was not considering irretrievable breakdown of marriage as a basis for granting divorce.

Rohatgi said that there have been dissenting views of different benches of the apex court between 1996 and 2010, regarding the dissolution of the six-month notice period. While some judges agreed for the relaxation of six-month notice period, the others said if legislature had a specific provision, couples should be sent to family courts for getting divorce .

According to the report, Rohatgi decided to leave it on the constitution bench to decide whether divorce can, at all, be granted on the ground of irretrievable breakdown of marriage and the waiting period should be done away with.

While the bench is waiting to hear the case in August, NewsGram asked general public for their opinions on the subject.

Himanshu Kumar, a working professional, states, “Irretrievable breakdown will be a too flexible law to grant divorces, because the definition for irretrievable varies from person to person. And even a futile situation could be irretrievable for some people. Like, I once read in news where a woman demanded divorce because her husband used to switch off the fan at night. So, instead of making flexible laws, proper & mature counseling should be provided to the couples.”

While Himanshu seems to be against considering irretrievable breakdown of marriage as a ground for divorce, Tanuj Mitra, a Kolkata resident, is of the opposite views. Tanuj states, “What I feel is that granting divorce on grounds of irretrievable breakdown of marriage should be flexible enough and justice should prevail without the mandatory 18-month separation. The top court should override the legislative will irrespective of government proposals. Since it’s a pro-Hindutva government, it will look to preserve the marriage in the set parameters of the Hindu Marriage Act and might not introduce any such legislature. As per my view, the waiting period should be curtailed and the SC should exercise its power on granting absolute justice. Sending the divorce cases to family courts will only leave the case as well as the panel perplexed as human beings are complex individuals.”

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Mercy for the Nirbhaya Rapists?

Gender discrimination is the root of many evils. While keeping the aspiration of females down, certain males have committed many wrongs in the past.

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Nirbhaya
The Nirbhaya incident in Delhi was “instrumental” in bringing about a kind of gender awareness renaissance in India.

By Salil Gewali

Gender discrimination is the root of many evils. While keeping the aspiration of females down, certain males have committed many wrongs in the past. Apart from various kinds of physical tortures, the mental tortures undergone by defenseless females are endless. Within the confinement of four-walls innumerable sins are still being committed which mostly go unreported. However, it was Nirbhaya’s rape incident in Delhi that was “instrumental” in bringing about a kind of gender awareness renaissance in India. Post-Nirbhaya incident, a lot many changes in the laws have been made. The safety and security of women have been prioritized, the nation-wide the whole police departments have been sensitized, to a greater extent the road transportation has been made women-friendly.

Nirbhaya rape
The public is right and more sensible now to point out the “hard cruelty” with which the gang had sexually tortured Nirbhaya that night.

Thanks to the countless number of protests across the country condemning the six rapists. The people from all walks of life came together and relentlessly pressurized the government that the Nirbhaya convicts must be awarded capital punishment. Media’s contribution in the campaign is immeasurable. Alas, India’s judiciary is so annoyingly slow it has taken over 7 years to pronounce the death sentence.

Nirbhaya rape
Advocate Indira Jaising suggested that the convicts of Nirbhaya rape case could be “forgiven” by the parents.

However, now nothing could be so mind-blowing than the flood of condemnation against the comments by a veteran advocate and social activist Indira Jaising. Without a sense of guilt and potential backlash, she suggested that the convicts be “forgiven” by the parents. Jaising’s idea has clearly touched a raw nerve of the major population in the country. People’s anger is spilled well over social media. What is most noteworthy is the scathing condemnation directly from the horse mouth — the mother Asha Devi. A very bold lady, who determinedly fought for justice for so many years, thunders – “Who is Indira Jaising to give me such a suggestion? The whole country wants the convicts to be executed. Just because of people like her, justice is not done with rape victims,” Asha Devi aptly further adds — “Can’t believe how Jaising even dared to suggest such this; I met her many times over the years in Supreme Court, “not once” she asked for my well-being and today she is speaking for convicts. Such people earn a livelihood by supporting rapists; hence rape incidents don’t stop,”

The latter comments by the Nirbhaya’s mother clearly hint the doubt at the “integrity” of the advocate Ms. Jaising. How on earth that one who has not spoken a word of sympathy in spite of many encounters in the court can reserves the right to suggest that which offends the distressed victim party. Asha Devi deserves a salute for her boldness. Yes, India Jaising is one of the advocates who knocked the door of the Chief Justice of India in the middle of the night in July 2015 in order to seek the mercy for the dreaded terrorist Yakub Menon.

Nirbhaya rapists
In 2015, the Delhi Government proposed to award the Nirbhaya juvenile convicts with Rs 10000/- and a sewing machine.

Again, here is another bombshell to drop which many of us may have forgotten. Can we ever “forgive” for the shocking proposal in 2015 by Delhi Government to award the Nirbhaya juvenile convicts with Rs 10000/- and a sewing machine?  Who has approved such bizarre ideas and which leaders are responsible? What kind of lesson should the citizens take from this?

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I think the public is right and more sensible now to point out the “hard cruelty” with which the gang had sexually tortured Nirbhaya that night. They had used the iron-rod to inflict deep injuries upon the girl which is unspeakable, which is very unpardonable. So, given the increasing cases of rapes and subsequent inhumane cruelty and cold-blooded killings, Capital punishment can be the only answer and “one of the deterrents”. Before the divine retribution, the hard rod of punishment should not be spared at all. 

Salil Gewali is a well-known writer and author of ‘Great minds on India’. Twitter: @SGewali