Supreme Court asks own: Are we being flexible with law in granting divorce?

Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”.

A Supreme Court bench has decided to examine whether the top court should be granting divorce on the ground of irretrievable breakdown of marriage and without the mandatory 18-month period of separation.

For many years now, the Supreme Court, exercising its power under Article 142 of the Constitution, has been granting divorce even while the Hindu Marriage Act makes it mandatory for couples to stay apart for at least 18 months before parting with mutual consent.

While the government has informed the top court that there is no proposal to incorporate irretrievable breakdown of marriage as one of the conditions for grant of divorce in the Act, a bench of Justices Ranjan Gogoi and N V Ramana has decided to examine whether judges should be overriding the legislative will.

Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”. Using this, the court has granted divorce in several cases, dispensing with the six-month waiting period after a judicial separation of one year — that makes it 18 months under Section 13B of the Act.

Adjudicating a clutch of petitions wherein couples wanted the waiting period to be curtailed since there was irretrievable breakdown of marriage, Justices Gogoi and Ramana wondered if they should exercise such power when the Act provides otherwise. They sought the views of Attorney General Mukul Rohatgi who said the legislature was not contemplating irretrievable breakdown of marriage as a ground for divorce.

On whether the court should dispense with the waiting period, Rohatgi said there have been dissenting views of different benches of the apex court between 1996 and 2010. Some judges were of the opinion that the six-month notice period should be relaxed while others said if legislature had a specific provision, couples should be sent to family courts for getting divorce as per law, he said.

Rohatgi said it may be proper to let a constitution bench decide whether divorce can at all be granted on the ground of irretrievable breakdown of marriage and also if the waiting period could be dispensed with.

The bench, however, noted that referring the issue to a constitution bench may not provide a solution since a decision by it would take long while such cases would keep coming up in quest of speedy disposal. It observed there could be “numerous peculiar situations” in a marriage and when “it is almost impossible to understand human beings, devising a thumb rule to grant divorce in such cases is very difficult”.

The bench appointed four amicus in the case — senior advocates V Giri, Dushyant Dave, Indira Jaising and Meenakshi Arora — and sought their assistance in finding legal answers to two questions it framed.

It sought to know whether the top court should exercise its power under Article 142 at all or whether it could be done on a case-to-case basis. Further, what could be the broad parameters for exercise of such power to dissolve a marriage without referring a couple to a family court to wait for the mandatory period.

http://indianexpress.com/article/india/india-others/supreme-court-asks-own-are-we-being-flexible-with-law-in-granting-divorce/2/

Alimony to husband by wife

In recent divorce cases, courts, deviating from the norm, have been denying maintenance to the wife if she is capable of earning or was earning in the past. There are also cases of the wife being asked to pay maintenance to the husband.

The husband paying maintenance to the wife is the textbook model for divorce proceedings. However, in a recently developed trend, the courts have been denying maintenance to the wife if she is capable of earning or was earning in the past. There have also been cases where the court, instead of going the conventional way, has told the wife to pay maintenance to the husband. Even the wives, in a hurry to end the marriage as soon as possible, are opting for out-of-court settlements and paying the husbands a permanent alimony.

Maintenance Plea by the wife rejected

In a recent judgement, a trial court in Delhi denied the plea of a woman seeking maintenance from her husband. It was reported that the trial court dismissed the woman's plea seeking residential maintenance from her estranged husband, and observed that no financial assistance can be provided to a woman if she earns as much as her husband. Anuradha Shukla Bharadwaj, additional sessions judge, observed, "In the era of gender equality, bias cannot be shown to one gender and discretionary relief of financial assistance cannot be granted to wives despite their capability to earn as much as their husbands."

The court, reportedly, said that rental maintenance would have been awarded to the wife had she proved that she was incapable of arranging an accommodation for herself. However, in this case, she was living with her mother.

Although uncommon, it is not the first time that a court has denied maintenance to the wife. There have been several cases where the court has supported the husband and denied the wife's plea for maintenance. In a case, "The husband was an NRI from the UK and the wife was working with a multinational bank here in Delhi, and she was drawing a salary of `60,000-70,000. They had a troubled marriage so the wife filed for divorce. She asked for maintenance under Section 125 of the Code of Criminal Procedure, 1973, from her husband, stating that he was quite rich. However, her plea for maintenance was rejected and the court ruled that since she was earning well, she didn't need her husband's money to survive, despite the fact that he was quite well-off."

"A trend has developed recently wherein the court is denying maintenance to the wife if she has capability, capacity and past employment." Citing a case, he says, "There was a case in which the wife was a dentist by profession and used to be employed. However, at the time of divorce, she wasn't working and asked for maintenance from her husband. But the court denied her maintenance because, in this case, she had the capability and capacity, and was working in the past. So, she could work again to support herself."

Family resource cake

It is not necessary that either of the party has to pay maintenance to the other in divorce cases. "In 2004, Justice Vikramjeet Sen of the Delhi High Court (as he then was) worked out a formula involving a 'family resource cake' in order to provide maintenance to even working wives. Justice Sen, in the said judgment, combined the income of both the spouses, calling it the 'family resource cake.' Half of the 'cake' was allocated to the husband to meet his expenses, and the other half to the wife and children, for their maintenance. This method has been widely followed by other courts in Delhi when awarding maintenance to either spouse."

Maintenance in favour of the husband

Although in most cases, the wife is awarded maintenance to enjoy the same lifestyle as that of the husband, there are also instances where the reverse happens. Not only is the wife refused maintenance, in many cases, she is also asked to pay maintenance to the husband.  In a case where the court granted maintenance to the husband, the Court granted maintenance in favour of the husband, who was suffering from a mental disorder, while the wife had a government job. The wife earned about `20,000, and the husband was granted a maintenance of `2,000." 

There was another case in which a court passed a judgment supporting the plea of a husband who, under Section 24 of the HMA, wanted maintenance from his wife. The trial court directed the wife to pay the husband `20,000 per month as maintenance, `10,000 as litigation expenses and also to provide a car for him. This judgment was later challenged in the High Court by the wife, but the HC also supported the judgment of the trial court. The wife was running a paying guest facility while the husband was unemployed.

The law which allows the husband to seek maintenance from his wife

Husband can only seek maintenance under Section 24 of the Hindu Marriage Act. "Section 24 of the Hindu Marriage Act, 1955, provides that the court, in case of either the wife or the husband having no independent income sufficient for her or his support, may, on the application of either of the spouses, order to pay to the petitioner the expenses of the proceedings and monthly expenses during the proceedings such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. So, under this section, even the husband can file an application claiming maintenance pendent elite in the pending divorce case. But the only pre-requisite is that he should not have sufficient income to maintain and support self in consonance with the lifestyle and income of the wife. Assuming the wife is earning much more than the husband, the husband only in that eventuality shall have the locus to file for maintenance."

http://timesofindia.indiatimes.com/life-style/relationships/man-woman/Rich-wives-pay-alimony-to-hubbies-to-end-marriage-asap/articleshow/35114784.cms