 On the 1st of May, the Supreme Court of India, a constitutional bench in a very significant ruling declared that the irretrievable breakdown of marriage can be grounds for it to grant divorce in certain cases. Now, this has been a very interesting judgment, but also a bit of a misreported one. There's a lot of confusion, lack of clarity about what it really means, what it really means for many families. So in this joint production of NewsClick and the Leaflet, we have with us senior advocate Indira Jai Singh to talk about this. Thank you so much for joining us. Thank you. So could you please maybe start by telling us, you know, what exactly, a broad outline before we go into some of the deeper issues, because does this mean, for instance, that anybody can approach the Supreme Court saying that the marriage is irretrievably broken down or is there a process? So what does it exactly mean in practical terms? So no, the answer to your question is no, nobody can approach the Supreme Court. In fact, the court went out of its way to say in its judgment that no one can file an Article 32 petition asking for a divorce from the Supreme Court, and that is obviously logically correct. So I agree with you, there has been a substantial amount of misreporting, irretrievable breakdown of marriages, not a ground for divorce under Indian divorce laws, marriage laws. But what the Supreme Court is saying is that when people have been litigating for a prolonged period of time, beginning from the family court, going up to the high court, coming to the Supreme Court, it seems rather obvious that the marriage has, quote, unquote, broken down. Now the other expression which is very important is irretrievably. So what the court is saying that we, as the Supreme Court of India, if we come to the conclusion that this is an irretrievable situation, that two people cannot live with each other anymore as husband and wife, then we can grant the divorce on the ground of irretrievable breakdown of marriage subject to certain conditions. And those conditions are that the interests of the wife are looked after, the interests of the children are looked after, and their satisfaction, that it has broken down. So just to sort of also look at, you know, to elaborate on all the points you're talking about that why this is significant and the sense that there is often this long process you handle many such cases yourself. So in many of these cases, how do you see this judgment actually coming to the aid of people who are in fighting these cases? So first at the conceptual level, India has in all its marriage laws what we would call fault divorce, which means one of the two parties has to be at fault. And the aggrieved person has to go to court asking for a divorce. Now if you look at the grounds on which a divorce can be, this is just the Hindu marriage act, but most laws are very similar. So here you have it, can be dissolved for a degree for divorce, after the solemnization of marriage has voluntary had sexual intercourse with any other person, adultery, has after the solemnization of the marriage treated the petitioner with cruelty, has deserted the petitioner for a continuous period of not less than two years, has been of incurable unsound mind, has been suffering from a venereal disease in a communicable form, has renounced the world, interesting by entering a religious order, has not been heard of a life for a period of seven years and so on and so forth. All these are then explained. Now as you can see, every one of them involves getting into the depth of the private life of these two persons. And unless and until you can prove any one of them, there is no way you can get a divorce. Proving any one of these things is the most murky, messy thing. Take for example adultery. I know people who go to court who engage the services of a detective to follow their vives to see whether she's committing adultery. Take the issue of incurably of unsound mind, very murky. I know people who go to mental health experts and get certificates to say that my wife is a mentally unsound. And then cruelty, which is the most commonly invoked ground for divorce, I mean cruelty can be from anything to anything and I'm not saying that these things don't happen in a marriage. Of course they do. In fact, if anything else, I've been the one who's been arguing that there is cruelty against women within a marriage of a very high order and that is what ultimately led me to draft the protection of women from domestic violence act of 2005. But coming back to the question of divorce, it's a very odious process for anybody to prove any of this in a court of law. Yes, after years and years of standing in the witness box, objecting yourself to the most obscene, obscure cross-examination, you may ultimately get an order saying, yes, you've succeeded in proving cruelty. Now when it comes to your irritable breakdown of marriage in contrast to this, it's generally what we refer to as a no-fault divorce. And that is a situation where two people simply feel they cannot live with each other any more for various reasons. As was argued in the court, both of them may be perfectly good people, burply nice people, but there is a complete lack of incompatibility and that warrants a divorce. So this is the difference between the two. But there is a great need to understand the procedure. It's actually the devil lies in the procedure as far as this case is concerned and what is happening in this regime is that I know people who are waiting for 10, 15, 20 years to get a divorce. And it is in this situation that the Supreme Court rendered this judgment that when a case comes to them, having gone through the process of the family court, the high court, and finally the Supreme Court, and they can see they've put a benchmark of six years that more than six years have passed in this whole process, they will insist that you try to reconcile through mediation, but when that doesn't work, then they come to the conclusion that this marriage has been broken down and then under Article 142 of the Constitution of India, they can grant a decree for divorce on the ground that it has irretrievably broken down. Absolutely. And Article 142, one being to attain complete justice. Yes. The very unusual and singular article in the Constitution of India which contains this provision, I haven't seen too many constitutions which have a similar provision, and it says that the Supreme Court can pass any order to do complete justice between the parties. It is a bit of a problematic provision because it does give a lot of subjective discretion to judges to decide when they want to use it and when they don't want to use it. Most famously, as you know, it was used in the Union Carbide case to render a settlement, but that apart in this case, the judges said, we can use that power to separate the two people to the marriage that they can go on to live their own lives individually and separately. Right. Also, there's this aspect of the six month time period that has been waived in this ruling. And you also elaborate a bit on that. Yeah. It's again a bit difficult to understand. The under, as I said, two ways of getting a divorce. One is what we call the fault divorce, which I read out. The other is a divorce by mutual consent. So after having waited for one year from the date of the marriage, you will notice this one year waiting period is just to be sure that you really don't want to be married anymore. You can file a petition for divorce by mutual consent where both agree. And after having filed it, you have to wait for six months before the court grants the divorce. That's where the six months period is coming from. Now look, if two people go to court and say we want a divorce and file for mutual consent, it's not too difficult to wait for 18 months. That is, you know, one year before the marriage in six months during the dependency. But what happens is in contested divorces, people have been through the court process for 15, 20 years by the time they end up in a Supreme Court. In the Supreme Court, there very often is a settlement which takes care of alimony. It takes care of maintenance. It takes care of custody. Then to drive them back to the trial court and say now go file a petition for mutual consent is unreasonable. And in that situation, the court said, well, if you have been through this process and there is a settlement dealing with all these issues, then we will allow you to file this petition for divorce by mutual consent and waive the six month period. It doesn't mean you get a divorce in six months now. So just to sort of, you know, expand the scope a bit. And I think you were also talking about this a bit earlier. The question of, of course, divorce not being just a legal process. It has to do with families. Often women suffering very intensely during this process. There's a question of children. There's a question of alimony, for instance. Does this verdict, so how do you situate this verdict in the context? The social realities of India where, who asks often for divorce more? What are the protections they can accept? Yes. To begin with, of course, you know very well that for quite some time now there's a stigma attached to being a divorced woman. It's changing now compared to when I first started my legal practice and I know how much women resisted a divorce. They would tolerate a bad marriage rather than go for divorce. Now, that consideration led me in the year 2005 to draft a law which is known as the Protection of Women from Domestic Violence Act. I had a lot of women coming to me when they had problems in their marriage and they would say, look, it's not that we want a divorce. What we want is for the violence to end. Right. And when I realized, also we do have a criminal law of cruelty for 98A, which was introduced sometime in 1986 again by the then Congress government. But there is a hesitation also about filing a criminal proceeding in a court of law against your own husband. Women were hesitating to file these petitions. So where do they go? There was really no remedy and that is why we drafted the Protection of Women from Domestic Violence Act, where you could get injunctions, restraining abusive spouse from being violent. You could also get an order restoring a woman to her matrimonial home, which we call the Shared Household. Now, but the question of a divorce still remain. The question, when the violence goes away, the question of divorce doesn't necessarily go away. Or when there's a legal remedy for violence, it doesn't mean that the question of divorce is going to go away. One of the two might still want a divorce. Now, given that statistics in India indicate that most property in a marriage is held by the man and not by the woman, there is an obvious imbalance of power between the two. And when a man wants a divorce, the tendency is obviously to turn out with empty hands. Add to this the institution of a joint family in India, where the family home is owned by the parents of the husband and not the husband himself. Then it becomes very convenient for the parents to say, well, this home doesn't even belong to the husbands and throw the woman out of the house. All these things have been going on for very, very long. Frankly, there's not a need for reform in Indian marriage and divorce law, which for some reason is not happening. But the advantage of having divorce on the ground of irretrievable breakdown of marriages, A, you cut out all this question of, did he commit adultery? Did she commit adultery? Is he of unsound mind? Is she of unsound mind? And was there cruelty between them? And you simply say, it's not possible for both of us to live together. And that's the relevance of this judgment in a larger context. And I personally welcome this judgment. Absolutely. Actually, just picking up on your point, you're talking about the need for reform. So is there also the issue of, say, the legislature having to intervene at this point? Because this is, of course, a judgment. It has a certain set of limitations. But you would not normally want the country's parliament to actually draft a more encompassing law which deals with some of these issues. Well, indeed, that's true. There was an attempt made by the then UP government sometime in 2000 and earlier before 2000. The first UP, I guess. Yes, I think so. And there was a draft, there was a law actually, a break down of marriage introduced in parliament. There was a strong opposition to that law from the women's movement. But the opposition was mainly based on the fact that the law did not spell out what were the economic guarantees that were going to be made for the woman before any court was permitted to pass this law. It was, of course, almost 20, 25 years ago. And it's time, I think, for parliament to re-look at the whole issue. And I'm hoping that this judgment will spur the parliament to consider a tharagoying reform to the law relating to marriage and divorce, which would include a ground for divorce of irretrieble breakdown on marriage. And absolutely, finally, just to sort of get a sense of how does this verdict impact, if you may call so, the workload of the Supreme Court or the situation of the judicial system itself. We know there's a lot of pendency, too many cases, too little time. So does this actually complicate things for the Supreme Court or does it make it actually make its move? So, you know, interestingly, the Supreme Court has now started devoting dedicated time to two very important issues. One is the issue of bail, where like every court in the Supreme Court does about 10 bail matters every day so that there is a recognition of the fact that life and liberty cannot wait. But the other issue that the Supreme Court is now also distributing between all courts is the issue of transfer petitions, where very often a woman files a transfer petition in the Supreme Court to transfer a divorce petition in a trial court, let's say, from UP to let's say Maharashtra because she's living over there. And the commute is far too much beyond her capacity. So again, on a daily basis, there are courts hearing these cases. And I think it's coming from the recognition of the fact that life and liberty can't wait. So as you can see in divorce, what is the point of a life in which you spend 20 years in jail? And I have many, many clients who during the pendency of a divorce petition have quite simply gone on and entered into other relationships that they wanted to enter into and even have had children. And yet the divorce is not coming through. So I don't think it's likely to interfere with the pendency. On the contrary, the Supreme Court has found a methodology to deal with these issues expeditiously. But there is one thing that the court has also done. There is what, well, in law it's called diversion from the legal track. And what the courts do is normally matrimonial matters. They send to mediation. So most courts in the country have developed some magnificent mediation centers. And there are now very good trained mediators who are situated in these mediation centers attached to the court. And their job is to give a report to the court whether this marriage can be put together, whether what should be the terms and conditions, and or whether it has been broken down. So what I do see is an increase in the emphasis on mediation, which is track two, almost track two. So these cases will exit the Supreme Court and enter into the mediation centers. But the actual divorce cannot be granted by a mediator. The case has to come back to whichever court it is, a high court, a Supreme Court, or the trial court. Including trial courts, they have mediation. Thank you so much, Senior Advocate Indra Jai Singh, for both explaining this judgment. But also, I think giving an idea of what really is the way forward, because it does look like this is just one step in what should be more comprehensive reform. Thank you so much. Thank you. And that's all we have time for today in this joint production between NewsClick and the Leaflet. We'll be bringing you more such videos, more such explainers in the future. So keep watching.