'Element of subjectivity in cruelty,' SC grants divorce to couple

The Supreme Court has said an element of subjectivity has to be applied on the objective aspect of cruelty while considering a matter related to divorce under the Hindu Marriage Act.

"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 bench of Justices Sanjiv Khanna and M M Sundresh observed.

The top court also emphasised at adopting upon "holistic approach" and consideration of social context in view of stigma attached to it.

After hearing advocate Dushyant Parashar for the woman and advocate Smarhar Singh, the court allowed the plea for divorce made by the wife as parties were living separately for about 15 years and serious allegations were made against each other.

"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," the bench said in the instant case.

There is no need to continue the agony of a mere status without them living together, the bench added.

Going behind the principle of law evolved with regard to divorce, the bench said with the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism.

"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," the bench said. 

It pointed out the question of burden in a petition for divorce, burden of proof lies on the petitioner. "However, the degree of probability is not one beyond reasonable doubt, but of preponderance," the bench said.

It said even with a liberal construction of matrimonial legislations, the socio-economic stigma and issues attached to a woman are raised.

"The resultant stigmatization hinders societal reintegration, making a woman divorcee socially and economically dependent. Courts must adopt a holistic approach and endeavor to secure some measure of socio-economic independence, considering the situation, case and persons involved," the court said.

The bench said 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. 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.

Citing Section 23(1) of the Hindu Marriage Act of 1955, the bench said it is a word of caution to check cases of abuse and misuse of law to get relief. 

The court said the object and purpose of these provisions is to check any party taking advantage of social and economic inequalities between the sexes given the fact that on many occasions a divorce may solve one problem, but create another when the woman is separated both socially and economically.