On May 1, a bench of five judges passed the judgement in the matter of Shilpa Sailesh Vs Varun Sreenivasan, held that Supreme Court can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decre of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act. A divorce is a difficult phase for families especially when children are involved.
Speaking only on condition of anonymity, a
mother of a teenage daughter says that she went through a year of waiting
period till her divorce was finalised. “It was a mutual consent divorce but the
conditions are so stressful for such a long waiting period. You have to be very
careful as you have been through so many fights already and now over this
waiting period, you don’t want to trigger the other person to withdraw the
divorce. It’s like walking on eggshells just to get through the divorce, it is
very traumatising. Having a child dealing through all of this is even more
difficult. While it was absolutely traumatising for me till I got the divorce,
the whole process was smooth sailing. I got the primary custody of my daughter
and he has the visitation rights. However, since she is grown up now, she is
free to decide when she wants to visit him. Over that one year, I had to have a
casual conversation but now I no longer keep in touch with him,” she informs.
What does she feel about the Supreme Court rules it can directly
grant divorce to couples under Article 142? “I am very happy about the rule as
I was the one who initiated my divorce. My divorce was ten years back but I am
glad that the Supreme Court’s discretion of exercising the plenary power it commands
under Article 142 of the Constitution to dissolve a marriage on the ground of
‘Irretrievable break-down’.”
Campal based Armando Gonsalves is in all praise for the rule by
the Supreme Court. He feels that it is very good that divorce can be granted
quickly without wasting years in the process. He is divorced from his first
wife with whom he has a daughter and son. Now, happily married with his second
wife and blessed with two sons, he feels that divorce is not a taboo anymore. “It
is all about your faith and trust in God. Divorce is one of the ugliest things
that one endures, especially if you have children in the marriage. Divorce
should never be there but that is our reality. I was married in 1994 and the
divorce was filed years later because of the children, as they were too young.
However, I still didn’t succeed in making it easy for them and it is better to
deal with it quicker without much of an emotional baggage. Wasting years over
it doesn’t really better for both parties,” says Armando.
He further adds, “Now my wife and two sons get along well with
my daughter. She works in Goa for a Swiss company and though she lives with her
maternal grandfather, she is always visiting us and regularly playing the boys.
It is a wonderful experience and though my wife is her step-mother, they both
are just like great friends. I think India and Goa has changed dramatically
over the years and it is important to understand that divorce is not a taboo at
all. I am glad that the Supreme Court rules that marriages can be dissolved on
grounds of irretrievable breakdown. There are situations that can’t be
controlled and it is best to move on and the sooner the better.”
Simran was stuck in an unsuccessful marriage for over 28 years
just to keep her daughter safe and believing in the sacrament of being true to
your spouse in good times and in bad, in sickness and in health. Being the
eldest in the family among her siblings, she was married to her high school
sweetheart, only to learn about his true colours a few years after their
marriage when she had a small baby girl in her arms. She shares her experience
as living through hell. “Two years after my marriage, I started receiving the
worst treatment from my husband and my mother-in-law. Within four years of my
marriage, I realised that my husband was a womanizer who was dating other
women. He lied to me and troubled me which even landed me in the ICU. I lived
through hell with him before even dying. I did my best to save my marriage, I
kept up with him for so many years, as I wanted my daughter to get married and
I didn’t want my divorce affecting her,” says Simran.
Her parents have been happily married for almost half a century
and Simran always prayed to see better days. Unfortunately, her husband didn’t
want to keep up with the charade. “From the outside, I had to put up with a
face and even my parents and family didn’t know what I was going through. We
lived abroad most of our married life but it did make matters worse. I did save
money to build my own house and after building up enough courage, I decided to
file for divorce. Thankfully, I had a wonderful lawyer, who was always
supportive of me. I am now a happy grandmother of two babies and I have closed
the chapter of my past. Living alone is a better life than thinking about your
husband’s whereabouts,” she adds.
Now living an independent life, Simran hopes to inspire other
women to look beyond their misery. “I would advise women not to sacrifice
themselves because of others. Nobody can destroy you but yourself. Divorce is
not the end but just a bend and it is not going to put you down and even the
society is changing to accept divorcees. There is nothing more devastating than
losing out on good years that you could have used to bloom yourself into a
confident being,” says Simran.
Adv Sybil Fernandes who practices family law has dealt with many
divorce cases in her career and has even seen partners coming out of their
divorce and getting married and living a new happy marital life. “The trend is
not on looking down on a person who is going through or is divorced. On the
contrary, there are upheld as strong individuals you stood up for themselves.
It is not a shame to get a divorce as now both partners are equal. During the
Covid-19 lockdown, there were many domestic disputes which led to a boom in
divorces being filed when the courts were opened. Spouses had to live together
24/7, when they were caught for extra-marital affairs or they couldn’t get
along together till they reached the point that they filed for divorce. It was
also the opposite for couples who got to spend quality time together and it
triggered a baby boom,” says Sybil.
She further adds, “It is better not to have a marriage if any of
the partners are not happy. They should check their compatibility as marriage
is bringing not just two individuals but two families together. One can file
for divorce only after three years of marriage. That is the reason many couples
are advised to wait for three years before having a baby. Now, however, divorce
is no longer considered a shame and most couples prefer to be on talking terms
as they have to juggle the children between both the households. I have still
not read through the ruling as it was just out yesterday. Right now it is very
vague and lawyers will have to file for petitions for clarifications.”
Adv
Jatin Ramaiya says, “The judgement rendered by the apex court is erudite.
However, it’s more likely to affect the fundamental principle of hierarchy of
courts flooding the Supreme Court with thousands if not lakhs of similar
petition. A legislative amendment or Fast tracking the procedure before family
courts would have been better solution in my opinion.”