The Choice of Law Rule in Matrimonial Reliefs Issues

Involving Private International Law

 

(By Sathyashree Priya, Advocate, High Court of Kerala)

 

Marriage is a commitment involving two individuals and the incidence of marriage is often complex involving various legal issues. According to some personal laws marriage is a 'sacrament' while others deem it as a contract. Whatever be its nature, the issues involved are multifarious since marriage confers a special 'status' upon the individuals concerned. Sometimes marriage results in change of domicile as well.

 

The preliminary issue involved in a marriage is regarding the capacity of the parties to enter into a marriage. The 'capacity to marry' varies with the legal norms as laid out by various countries and also according to the personal laws. All legal impediments to a marriage such as lack of age, prohibited degrees of consanguinity and affinity, previous marriage, physical incapacity etc. etc. are questions of 'essential validity* for the performance of a valid marriage.

 

Foreign Marriage Act (1969):

 

Let us, for a moment presume that a marriage is contracted between two Indian Citizens. Then they are governed either by their Personal Laws or under the Special Marriage Act under which they many. If one of the parties to the intended marriage is a foreigner then complexity arises. If such marriage is performed in India, then also the parties will be governed by the 'Special Marriage Act' or the personal laws of the parties under which they choose to marry. The Special Marriage Act does not impose any restriction on the parties to a marriage based on their nationality1. However the personal laws do impose certain restriction upon the parties to a marriage. These restrictions are not based on nationality but are purely based on religion. For example, a marriage between a foreigner following Christian faith and Indian citizen following Hindu faith cannot be solemnized under Hindu Marriage Act.2 Whereas under the Christian Marriage Act 1872 if one of the parties to a marriage is a Christian by faith then the marriage can be registered under the Indian Christian Marriage Act.3 Thus, the safest recourse for the parties to a proposed marriage of one of whom is a foreigner, is to get the Marriage solemnized under the Special Marriage Act under which the parties can contract a valid marriage irrespective of their nationalities or religion. There is no prohibition under the Special Marriage Act, 1954 read with Foreign Marriage Act, 1969 of a marriage between an Indian with a foreign national.4

 

"The Foreign Marriage Act, 19695 is primarily to provide for solemnization of marriages abroad between citizens of India or where the parties to a marriage is an Indian citizen. S.4 of the said Act imposes the following conditions for solemnization of foreign marriages:

 

(a)    neither party to the marriage should have a spouse living

 

(b)   neither party is an idiot or a lunatic

 

(c)   the bridegroom should have completed the age of twenty-one and the bride the age of eighteen at the time of the marriage, and

 

(d)   the parties should not be within the degree of prohibited relationship provided the custom of either one of the parties permit it.

 

The said Act provides for an enabling form of marriage more or less on the same lines as the Special Marriage Act which can be availed outside India, where one of the parties to the marriage is an Indian citizen6. Marriages can be registered under the said Act, provided the parties have the capacity to marry under S.4 of the Act quoted supra. The form of marriage thus provided is in addition to any other forms that may be permissible to the parties. Also, S.18 7 of the said Act provides for matrimonial relieves in respect of foreign marriages. It is pertinent to note here that for any marriage solemnized in a foreign country8 to which a citizen of India is a party whether registered under the Foreign Marriage Act or not, the provisions of the Special Marriage Act is applicable with regard to matrimonial relieves. Where a marriage solemnized under the British Marriage Act (1948) between a Hindu wife in 1966 the marriage was deemed to be governed by the Special Marriage Act (1954) and not by the personal law of the husband i.e. Muslim law. Husband cannot put an end to the marriage by pronouncing Talaq9.

 

A Critical Analysis of the Act:

 

A closer look at CI.(a) of S.4 of the Act clearly prohibits potentially polygamous marriages which means that a Muslim of any other nationality is prohibited from contracting a second marriage with an Indian citizen eventhough his personal law permits such a marriage! He/she may be punished for bigamy which is specifically provided for under S.19 of the Act 10 . While, certain countries like France permit the performance of marriage between individuals though under the age prescribed in S.4(c) of the Act, provided a parental consent is obtained. But, according to the Indian Act a French lady below the age of 18 years is prohibited from contracting a valid marriage with an Indian even if she had obtained the parental consent according to French law.

 

Also, the 'Prohibited Degree of Relationship' varies with countries and religious beliefs. Jurists often differ in deciding which law should govern the capacity to marry. While some favour the 'dual domicile' theory11. Some others favour the theory of 'intended matrimonial home' 12.

 

As far as the parties to the marriage wish to keep the marriage intact problems do not arise. However, when there is a martial discord and proceedings for divorce are initiated in a court of law then complexities arise. Though extra-judicial divorces are allowed under certain religious laws (for eg. under Islamic and Jewish laws) in India the tendency is to recognize divorces validly pronounced by a court of law.

 

The first problem for the parties to the dispute would be the choice of Forum 'Lex Fori' to initiate Legal Proceedings for Divorce. Laws relating to divorce varies between countries and in some countries the procedure is very minimal and more convenient. But the problem arises only when recognition has to be granted to such divorce decrees!

 

Normally, in Private International Law two theories are put forward regarding the laws that govern the Matrimonial Proceedings

 

(1)   Lex domicilii13

 

(2)   Lex loci celebrationis14

 

If a marriage is performed in a foreign country, it may be refused to be registered under the Foreign Marriage Act if it is in contravention of the local laws15. The Foreign Marriage Act provides for recognition in India of marriages solemnized under a law in force outside India, if that law provides for recognition of marriages solemnized under Indian law16.

 

The position is not yet settled in the sphere of Private International Law as to which theory is to be applied in problems of such nature.

 

Jurisdiction

 

Whenever a matrimonial proceeding is initiated in a court of law the initial issue would be of 'jurisdiction' and subsequently the case will be decided on merits. S.18(2) of the Foreign Marriage Act provides that every petition seeking matrimonial relief for marriages performed under this Act shall be presented to the District Court within the local limits of whose ordinary civil jurisdiction the respondent is residing at the time of the presentation of the petition or the husband and wife last resided together or the petitioner is residing at the time of presentation of the petition, provided that the respondent is at that time residing outside India. Thus to invoke jurisdiction, either one of the parties to a case must be a national of the state or ordinarily residing in the place where the case is filed or the parties must have intended to domicile there together i.e. to establish their matrimonial home in that country concerned (lex domicilii) or the marriage must have been performed in the soil of the country where the case is filed (lex loci celebrationis).

 

Two elements are necessary for the existence of domicile,

 

(i) a residence of a particular kind

 

(ii) an intention of a particular kind

 

The residence need not be continuous but it must be indefinite, not purely fleeing. The intention must be a permanent one to reside forever in the country where the residence has been taken up. Mere residence in a place is not sufficient to constitute domicile. It must be accompanied by the intention to make it his permanent home. Thus, there must be both the 'factum' and 'animus' to constitute the existence of domicile. The grounds on which Indian courts assume jurisdiction in 'nullity' proceedings are the same on which they entertain petitions for divorce i.e. mainly based on residence. However a petitioner may not lose his right to sue merely on the basis of temporary change of residence17. Continuous residence for three years immediately preceeding presentation of petition is not necessary. It is enough if the petitioner had resided in India for three years prior to presentation of petition18 . Where the respondent was residing outside India at the time of commencement of the proceedings, the court within whose territorial jurisdiction the petitioner was residing at the relevant time would have jurisdiction to entertain the proceeding and foreign nationality of a respondent, by itself, cannot prevent an Indian court from proceeding against such foreign national,19.

 

Thus, applying the above principles, once the issue of jurisdiction is settled, the court proceeds to hear the matter on merits of the case. The court may pronounce a marriage void, or it may render it voidable. When it is found that the parties to a marriage had no capacity to marry the marriage is declared void. But the capacity to marry is often a very complex question and differs from country to country and also is different in different personal laws.

 

Available Remedies

 

Once a matrimonial dispute is filed in a foreign court of whom at least one of the parties is an Indian, or the marriage had been celebrated in Indian soil the following remedies can be availed by the parties to the dispute.

 

Stay of Action under Indian Law

 

In the case of simultaneous proceedings in a foreign court, the explanation to S.10 of the Civil Procedure Code provides,

 

"The Pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action."

 

This explanation does not empower the Indian court to grant a stay of proceedings; it only lays down that the Indian courts can proceed with a suit although a foreign proceeding is pending with regard to the same cause of action.

 

In granting stay of action the Indian Courts would be guided by the principles enunciated in English cases. This jurisdiction, as in the case of jurisdiction exercised by English courts is discretionary and will be exercised with extreme caution.

 

The Indian courts have granted stay of actions pending Foreign Proceedings under the inherent jurisdiction by virtue of S.151 of the Code of Civil Procedure. The above Procedure can be invoked if a case is pending in a Foreign Court where the dispute involves Indian Nationals or where the marriage between the parties had been celebrated here. The choice of law rule will depend upon some 'connecting factor' such as domicile, place of celebration of marriage etc. for the Indian courts to exercise jurisdiction and for the parties to a dispute to choose a forum (lex fori).

 

Recognition and Enforcement

 

Once the case is heard and the judgment pronounced the next difficulty that arises is in the recognition and enforceability of such judgments. Indian courts are competent not to enforce a foreign judgment20, if it is not given on merits. According to S.13 of the Civil Procedure Code. The following defences are available against the enforcement of a foreign judgment in India.

 

(i)    That the judgment has not been pronounced by a court of competent jurisdiction.

 

(ii)   That it has not been on the merits of the case.

 

(iii) That it appears on the face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognize the law of India in cases where it is applicable.

 

(iv) That the proceedings in which it was obtained are opposed to natural justice

 

(v)   That it has been obtained by fraud

 

(vi) That it sustains a claim founded on a breach of any law in force in India.

 

Except in certain specified cases (Ss.44 and 44A of the CPC) foreign judgment cannot be enforced by direct execution in India. It can be enforced only by the institution of a suit upon the judgment, as in England.

 

Under S.44A decrees of the superior courts of the United Kingdom and other foreign countries with which India has reciprocal arrangements are enforceable in India as if they are decrees of Indian Courts. The foreign countries with which India has reciprocal arrangements for direct execution of decrees is called reciprocating territory. Foreign decrees can be directly executed under S.44A only in District Courts.

 

The defences to S.13 is available only when a case has not been heard on merits for it is a settled principle that foreign judgments cannot be re-opened on merits.

 

Marriage conferring Citizenship

 

As stated above the incidence of marriage is multifarious. It can confer citizenship alter the domicile and so on and so forth. As per S.5 of the Indian Citizenship Act 'Persons who are, or have been, married to citizens of India and are ordinarily resident in India and have been so resident for five years immediately before making an application for registration' can apply for citizenship by registration.

 

Thus an Indian Citizenship can be acquired by a foreigner married to an Indian citizen if the conditions cited supra are fulfilled, (either it be a male or female).

 

Though there is no gender discrimination in the Indian Citizenship Act, the Indian Succession Act is still outmoded. Ss.15 and 16 of the Indian Succession Act are based upon the old English rule. S.15 provides that "by marriage a woman acquires the domicile of her husband if she had not the same domicile before". Also S.16 lays down that "a wife's domicile during her marriage follows the domicile of her husband." But the Indian rule in S.16 is subject to two exceptions where the wife can acquire her own domicile.

 

They are

 

(1)  where the wife is living separate under a decree of a competent court and

 

(2) where the husband is undergoing a sentence of transportation.

 

This old English law rule is outmoded and has been abolished in England by the Domicil and Matrimonial Proceedings Act (1973). Also these provisions of the Indian Succession Act are contrary to the 'Convention on the Nationality of Married Women' (1957). It is high time that the Legislature strikes down such provisions of the statute as unconstitutional as contrary to the 'Equality Clause' guaranteed by our Constitution.

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Foot Note:

 

1. Section 4 of the Special Marriage Act.

 

 2. Section 5 of the Hindu Marriage Act.  

            

3. Section 4 of the Indian Christian Act.

 

4. (1992) 24 Delhi Rep. J. 294.

 

5. The Act is modeled on the English and Australian legislations on the subject of Foreign marriages and is modified to suit the peculiar situations prevailing in our country as Foreign marriages are governed by principles of Private International law which are by no means well settled.

 

6. AIR 1994 Bom.120.

 

7. Sub-clause (1) of the Section 18 applies the provisions of Chapter IV to VII of the Special marriage Act so as to –

 

(i)    define the consequences of a marriage under the Act.

 

(ii) Provide for matrimonial relief.

 

 Read with sub-clause (4), it covers also foreign marriages under other laws for which matrimonial relief is not available in India under any other law. Sub-clause (2) is intended to define the District Court which will have jurisdiction for granting relief and sub-clause (3) embodied the recognized principles of private international law as to jurisdiction of Indian Courts to grant matrimonial relief.

 

While providing for matrimonial relief in respect of foreign marriage under other laws, has been taken to ensure that –

 

(a)    the validity of such marriages is not affected by the provisions of the Act; and

 

(b)   even where such marriage is registered under this law, its validity is not affected by the said provisions, the only relief available in such a case being cancellation of registration.

 

8. Foreign Country :- means a country or place outside India, and includes a ship which is for the time being in the territorial waters of such a country or place (as defined in the Act).

 

9. AIR 1982 Bom. 341(DB).

 

10. This follows Section 44 of the Special Marriage Act and in its application to a second

marriage taking place outside India, it is confined to citizens of India, following the principle

underline Section 4 of the Indian Penal Code.

 

11. This is the traditional and still prevalent view - According to this doctrine, a marriage is invalid unless according to the law of domicile of both contracting parties at the time of the marriage they each have the capacity to contract that particular marriage.

 

12. The basic presumption is that the capacity to marry is governed by the law of the husband's domicile at the time of marriage. This theory is outmoded. According to the current theory the capacity to marry is governed by the law of the country where the parties at the time of marriage intended and did actually establish their matrimonial home.

 

13. Law of the country is which the parties are domiciled at the time of marriage and in which the matrimonial residence is contemplated law of the place where the marriage was celebrated. The maxim is Locus Regii Actum i.e. the place governs the act.

 

14. Law of the place where the marriage was celebrated. The maxim is Locus Regii Actum i.e., the place governs the act.

 

15. Section 11 of the Foreign Marriage Act is indented to ensure that marriage prohibited by any law inforce in the foreign country or marriages appearing to be in contravention of international law or the comity of nations are not solemnized under the Act so that marriages solemnized thereunder have a high degree international validity.

 

16. Section 23 of the Act provides for recognition in India of marriages solemnized under a law in force outside India, if that law provides for recognition of marriages solemnized under Indian law and is based upon a similar provision in Australian Marriage (Overseas) Act, 1955.

 

17. 1980 KLT 530.

 

18. AIR 1993 Bom. 110 (DB).

 

19. (1990) 1 Cal.HN (HC).

 

20. Smt. Satya v. Teja Singh, AIR 1975 SC 105-A Hindu wife filed a petition for maintenance under the old section 488 of the Cr. P.C. against her husband. The husband contested the petition on the ground that the marriage had been validly dissolved by a court in Nevada where he was domiciled at the time of the decree of divorce. The Punjab High Court held the husband had acquired a domicile of choice at Nevada and since the divorce was given by the court of the husband's domicile, it would be recognized in India. The judgment was reversed by the Supreme Court on the factual finding that the husband did not acquire a domicile of choice in Nevada.

 

Title Without Title Deed

 

(By Gigi P. V., Advocate, Kotlayam)

 

Mortgage by depositing the title deed as security in notified areas is a common practice adopted in granting loans. This is a very simple and convenient form of creating mortgage. Unfortunately the decree holders of a partition deed are practically deprived of this facility due to the lapses in the existing law and procedure related to the issuance of the final decree.

 

S.237(1) of the Kerala Civil Rules of Practice states that "Decrees to be engrossed on stamp paper:- The decree in a partition deed shall be prepared on non-judicial stamp paper for requisite value and shall be retained by the court and shall form part of the record and copies of the same shall be furnished to the parties in case of other decrees". Here law provides the litigants the certified copies of the final decree, which is the only document to prove their title to the property. Usually the loan applications which relies on certified copies of the final decree as the title deeds are rejected on the ground that the certified copies cannot be treated as title deeds.

 

The Banks are of the view that any number of the certified copies can be obtained by the concerned parties and such certificates cannot be relied on. A person with intention to cheat the bank can create any number of mortgages by depositing the certified copies of the final decree to several banks at a time. Moreover the equitable mortgage by depositing the title deeds needs no registration. Hence a prior mortgage by the same party by depositing another certified copy may not be found out on the examination of the certificate of encumbrance. Naturally such loan amounts issued by several banks at a time may exceed the actual market value of the mortgaged property and the banks are unable to realise the debts on non-repayment. Moreover in Syndicate Bank v. Modern Tiles and Clay Works (1980 KLT 550) it is held that "A copy is not a document of title and its deposit cannot be an equitable title. It is only an evidence of title". Thus the apprehension of the Bank is justifiable.

 

In order to find a solution to this situation two methods can be adopted. First one is that issue duplicates of the final decree on stamp paper to the parties. The second is, make an endorsement over the certified copies of the final decree that the copy shall be considered as original and such copy with such endorsement shall not be issued to the parties subsequently.

 

To meet the end of justice necessary provisions of the procedural law should be amended. Otherwise the unfortunate litigants of a partition suit may be deprived of getting financial assistance from the Banks and it may affect their right to enjoy the property. It may cause enormous hardship to the parties and initiation should be taken to redress their grievances.

 

Comment on 2002 (1) KLT 384

 

(By U. Balagangadharan, Advocate, Palakkad)

 

In the domain of disciplinary proceedings different sets of procedures are mandated for the imposition of major penalty and minor penalties. Minor penalty is ordinarily imposed after a summary procedure. While for inflicting major penalties a detailed regular enquiry in consonance with the principle of natural justice is necessary. Whether a given penalty is a major or minor one is no more a moot issue because it is either delineated in the Statutory Rules or is settled by Judge made laws.

 

In a recent case reported as Pushkaran v. State of Kerala, 2002 (1) KLT 384, the Single Bench of the Hon'ble High Court of Kerala found that withholding of two increments with cumulative effect is only a minor penalty and it does not amount to reduction to a lower rank. It was a case where the petitioner was Constable who was found guilty of releasing a bootlegger without registering any case. Upon conducting the enquiry, the Constable was imposed with the penalty of withdrawing two increments with cumulative effect. It was argued before the Hon'ble Court inter alia that the punishment amounts to reduction to a lower rank which is a major penalty as per the Kerala Police Departmental Inquiries (Punishment & Appeal) Rules, 1958 and regular enquiry ought to have been conducted. Hon'ble Court found that it was only a withholding of increments with cumulative effect and was not a punishment of reduction to lower rank and the consequences of it would be to deprive some monetary impact while the delinquent continues in the same rank. Therefore, the Hon'ble Court rejected the plea of the petitioner to follow procedure for imposition of major penalty was rejected. This was one of the findings in the judgment.

 

In this back drop, it is useful to reminiscent a decision rendered by the Hon'ble Supreme Court as early as in 1990 itself in an identical set of facts and held in unambiguous terms that withholding of two increments with cumulative effect would amount to imposition of major penalty and detailed regular enquiry was mandatory such circumstances. It was case (reported as Kulwant Singh Gill v. Stale of Punjab, JT 1990 (4) 70) of an Inspector in Food and Supplies Department of Slate of Punjab where lie was awarded the penalty of stoppage of two increments with cumulative effect under the provisions of Punjab Civil Services (Punishment and Appeal) Rules, 1970. Under the provisions of the aforesaid Rules, "withholding of increments of pay" is graded as minor penalty and "reduction to a lower stage in the time scale of pay" as major penalty. Therefore, the question arose whether stoppage of two increments with cumulative effect is a major penalty? The Apex Court found that withholding increments of pay simpliciter undoubtedly is a minor penalty but when it was imposed with cumulative effect it would indisputably mean that two increments earned by the employee was cut off as measure of penalty for ever in his upward march of earning higher scale of pay and in other words the clock is put back to a lower stage in the time scale of pay and on the expiry of two years the clock starts working from the stage afresh. The court further found that the insidious effect of the impugned order by necessary implication, is that the employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with the effect that two years' increments would not be counted in his time scale of pay as a measure of penalty. The Apex Court concluded by holding that the penalty of withholding of increments with cumulative effect would come within the meaning of major penalty and its imposition without enquiry is per se illegal. This decision is seen followed by various High Courts and Tribunals across the country. Very recently, in an identical set of facts, the Punjab and Haryana High Court in State of Haryana v. Harbans Lai Dua, 2000 (1) Administrative Total Judgments 363, following the aforesaid dictum laid down by the Supreme Court held that penalty of stoppage of increments with cumulative effect is a major penalty and such penalty can be imposed after a regular enquiry only. The above decision of the Supreme Court has not been so far over ruled or rescinded by any co-ordinate Bench or a higher Bench.

 

It appears that the factual matrix and the question of law arose for consideration in Pushkaran and Kuhvani Singh are identical. Therefore, inevitable fall out is that the decision in Kerala High Court in Pushkaran goes inconsistent with the decision of the Apex Court in Kulwant Singh. What sounds unfortunate is that the counsel appearing on both sides before the Kerala High Court in the case failed to enlighten the Bench by inviting attention to the above position of law.

 

"Polluter Pays Principle"

 

(By Jasmine Alex, Advocate, Ernakulam)

 

Recently the Supreme Court of India has adopted a new concept of compensation pertaining to environmental pollution, namely "polluter pays principle". It is a new born of judicial creativity of the Apex Court upon the realisation that if the environmental disturbances were not controlled the survival of human being on this planet would become impossible.

 

The decisions in Indian Council for Enviro - Legal Action v. Union of India, (A.I.R.1996 SC 1446.) 'Vellore Citizens' Welfare Forum v. Union of India, (A.I.R. 2000 SC 1997.) M.C. Mehta v. Kamal Nath, (A.I.R. 1996 SC 2715.) etc. deserve special mention for the following reasons:

 

 (i)    "Polluter pays principle" has been applied as a means of paying for the cost of pollution and control.

 

(ii)   A principle acknowledged in Public International Law has been incorporated into the law of the land as a binding principle of law.

 

(i) The Polluter should Pay:

 

The "Polluter pays principle" puts the wrongdoer under an obligation to make good the damage caused to the environment. Accordingly, it is not the role of Government to meet the costs involved in either preventing such damage, or in carrying out remedial action, because in effect the financial burden would be shifted to the tax payer. In fact, this principle is the resolve of the International Community that environmental policy shall be based on the principle that the polluter should pay.

 

The recognition of the fact of the uncontrolled disturbances caused due to pollution and its impact on future resources prompted the United Nations to hold a Conference on Human Environment at Stockholm in 1972. In 1972, The Organization for Economic Co-operation and Development adopted the "polluter pays principle" as a recommendable method for pollution cost allocation. The Paris Summit of 1972 also discussed the application of the same principle. In 1974, the European community recommended the application of the principle by its member States so that the costs associated with the environmental protection against pollution may be allocated according to uniform principles throughout the community. The principle has been one of the four Community Action Programmes on Environment. The Current Fourth Action Programme of 1987 makes it clear that the cost of preventing and eliminating nuisances must in principle be borne by the polluter and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the Environment which were introduced by the Single European Act of 1986. In 1989, the Organization of Economic Co-operation and Development reaffirmed the same principle. The 1992 Maastricht Treaty also provides for the environment policy based on the polluter pays principle.

 

The Supreme Court of India in Indian Council for Enviro-Legal Action (Supra n. 1) applied the above mentioned principle while examining the liability of the respondent, i.e., the Union of India, in defraying the costs of remedial measures. According to this principle, the responsibility for repairing the damage is that of the offending industry and the Government is empowered to lake measures for giving effect to this principle (lb. at p. 1466). The Supreme Court in Vellore Citizens' Welfare Forum (Supra n.2.) took the view that this principle has been held to be a sound principle by the Court in Indian Council for Enviro-Legal Action and the same thus forms part of the environmental law of the country (Ib.atpp.272L2722.)and M.C. Melita reiterated the same position.

 

(i)  Incorporation of International Law into the Law of the Land:

 

A close reading of the above mentioned decisions clearly depicts the judicial technique by which a principle in International Law has been brought into operation in the municipal sphere.

 

The decisions of the Apex Court in Jolly George Varghese (AIR 1980 SC 470), Rudul Salt, (A1R 1983 SC 1086) Nilabati Behera (AIR 1993 SC 1960.), and a plethora of decisions thereafter1 have witnessed the judicial trend to bring any international principle consistent with or in harmony with the constitutional principles of the land into the municipal law so as to enable the judiciary to promote the object of the constitutional guarantee. "It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law, when there is no inconsistency between them and there is a void in the domestic law."2

 

The spirit of Art.51© of the Constitution of India which provides for fostering respect for International Law also supports this judicial view. According, even in the absence of a law under Art.253, the judicial law-making provides for filling the gap. In the same way, the Supreme Court borrowed the "polluter pays principle" from Public International Law to fill a laccuna in environmental law in expanding the scope and ambit of Art.21 of the Constitution of India.

 

In M.C. Mehta (Supra n.3) Saghir Ahmed, J. read Arts.48-A and 51-A(g) into Art.23 of the Constitution and held that any disturbance of the basic environment elements which are necessary for life would be hazardous to "life" within the meaning of Art.21.(Id. At p. 2000) And the Court went further holding that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance (Ibid). In the matter of awarding damages under Art.32, the Court, following the decisions in Indian Council for Environ-Legal Action and Vellore-Citizens' Welfare Forum, as a corollary to the compensation jurisprudence3 evolved in Public Law domain, has enforced the "polluter pays principle" which is widely accepted in the international sphere as a means of paying for the cost of pollution and control (Supra n.3 at pp. 2001,2001).

 

Conclusion:

 

The adoption of the new principle into the law of the land obviates the difficulties in recovering compensatory costs from private parties by the Government. Still, the question whether private parties can directly be brought under writ jurisdiction remains open. But it deserves special mention that in the event of protecting rights of individuals and the society, the apex judiciary is duty bound to ensure remedial measures even by invoking equity principles or adopting legal rules from Public International Law.

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Foot Note :

 

1."See, for example Bodhi Sattvea v. Ms. Subra Ckakraborty, AIR 1996 SC 922; D.K. Baku v. State of West Bengal, AIR 1997 SC 610; Vishaka v. Stale of Rajaxthan, AIR 1997 SC 3011; Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625; Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149; Chairman, Railway Board v. Chandrbna Das, AIR 2000 SC 988; Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274.

 

2.Per J.S. Verma, C.J.I., in Vishaka v. State of Rajasthan, AIR 1997 SC 3011 at P. 3015.

 

3.See, Rudul Shah v. State of Bihar, AIR 1983 SC 1086; Sebastian M. Hongray v. Union of India, (1984) 3 SCC 82; Bhim Singh v. State of J. and K.; AIR 1986 SC 494, Saheli v. Commissioner of Police, Delhi Police Head Quarters, AIR 1990 SC 513; State of Maharashtra v. Ravikant S. Patil(l99l) 2 SCC 373; Nilabati Behra v. State ofOrissa, AIR 1993 SC 1960; D.K. Basu v. State of West Bengal, AIR 1997 SC 610 etc.

 

Chetan Dass V. Kamala Devi: Where Lies the Doctrine

of Irretrievable Breakdown of Marriage?

 

(By Mathew M. Chacko, Kottayam)

 

"If they desire that they be two, who is the law to insist that they be one'" (Chinnappa ReddyJ., Reynold Rajamani v. Union of India, (1982) 2 SCC 474, para.14)

 

The doctrine of irretrievable breakdown of marriage had over the past two decades crept into the Indian family law jurisprudence. It is not a ground for divorce recognized by legislative enactment, but one which the judiciary had hesitatingly accepted, as a valid ground. However, its position had not yet been firmly affirmed by the Supreme Court of India. It was in such a legal milieu that the judgment in Chetan Dass v. Kamala Devi, (2001) 4 SCC 250, rejected the very jurisprudential basis of the doctrine throwing up the question - is the irretrievable breakdown of marriage a valid ground for obtaining divorce (in India)?

 

The doctrine of irretrievable breakdown of marriage has as its logical basis the idea that it is not the business of the law to perpetuate what does not in reality exist.

 

".........the essence of marriage is a sharing of common life, a sharing of all the happiness

that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one offspring. Living together is a symbol of all such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of the disruption of the essence of marriage - 'breakdown' - and if it continues for a fairly long period, it would indicate the destruction of the essence of marriage - 'irretrievable breakdown'." (71st Report of the Law Commission of India on the Hindu Marriage Act, 1955 at para 6.5)

 

The history of all matrimonial laws would show that conservative attitudes have initially influenced the grounds on which divorce is granted (Pathak, J., Reynold Rajamani v. Union of India, (1982) 2 SCC 474, para.4). However, a conspectus of judicial dicta would show, that a more liberal approach is the order of the day (Ibid). The liberal or pragmatic approach recognizes the need for the happiness of the adult parties involved in a marriage. This had dictated a paradigm shift in the theoretical basis of judicial policy with regard to grant of divorce - from one based on fault to one based on acceptance of reality.

 

The judiciary has recognized that irretrievable breakdown of marriage is a ground for divorce (Saroj Rani v. Sudershan Kumar, (1984) 4 SCC 90 at para.9; Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226 at para.23). However, such recognition has been enveloped by the hesitation to tread in areas felt to be the rightful domain of the Legislature. Therefore, the scope of this doctrine has not been emphatically judicially pronounced.

 

In Chanderkala Trivedi v. Dr. S.R Trivedi ((1993) 4 SCC 232), the Apex Court of the land was faced with a fact situation that resembled a movie plot. Differences arose between a husband and a wife after nine years of marriage. Allegations of sexual promiscuity have been exchanged between husband and wife. The husband allegedly enjoyed an intimate relationship with a lady doctor, whereas the wife is alleged to have partook in undesirable associations with young boys. The Supreme Court noted that the marriage seems to be dead for all practical purposes and granted a decree of divorce on the ground that the marriage has irretrievably broken down.

 

The fact situation in Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226 is also one of a marital breakdown as evidenced by the husband's remarriage. Here, the Court noted that revival of the marriage is not possible. The breakdown was also evidenced by a prolonged period of separation. The two Judge Bench of the Apex Court had no hesitation in finding that there is "no useful purpose in served in prolonging the agony any further....." (Ibid, at para.23). The Court utilised its powers under Art. 142 of the Constitution of India to grant divorce on the ground that there has been an irretrievable breakdown of marriage.

 

Though no clear judicial exposition is available, the general trend of the Court can be ascertained from these two judgments. Where allegations and counter allegations of deceit and treachery spring forth from the members of the former marital unit and where this breakdown is evidenced by a period of separation, the Courts would have no hesitation to grant divorce on the ground that the marriage has irretrievably broken down. However, the decision in Chetan Dass v. Kamala Devi (supra n.2), seems to rewrite this cautiously worded jurisprudence in the interest of "regulating matrimonial norms for making a well knit, healthy........society." (Ibid at para.14).

 

The appellant husband had previously filed for divorce and withdrawn it to attempt revival of an ailing marriage. The wife has left the company of the husband for the second time in their troubled marital life, alleging adultery. The trial court has found that the husband did share an adulterous relationship with one lady. The husband contends that his wife was used to a much higher standard of living. He further alleges that her activities including a false allegation of adultery amounts to mental cruelty.

 

The marriage ceremony took place in 1976. Throughout the last quarter of a century, the couple has spent slightly less than two years together. The majority of this period has been spent in costly litigation, laying the blame for the breakdown of the marriage at each other's feet. The facts do not allow any argument on the question of whether the marriage has broken down. The only contention raised before the Supreme Court is that the marriage has irretrievably broken down and that divorce should be granted on that ground. The last sentinel of justice in the land replied thusly:-

 

"Matrimonial matters are matters of delicate human and emotional relationship. It demands trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute, framed keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individual as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to playing the society in general. Therefore it would not be appropriate to apply any submission of 'irretrievably broken marriage' as a straightjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case. (Ibid)."

 

The facts and circumstances of the case involve two years of marital union and almost a quarter of century of separation. It also brought in its sweep a court room drama, which has lasted over a decade and a half. Allegations of economic insufficiency, adultery and mental cruelty have been exchanged. Is it not ironic that the Supreme Court of India found that this marriage though broken (Ibid, at para.9) was retrievable? Or was it the position of the Court that once the marriage has irretrievably broken, the courts of law would attempt to impose the "mutual trust, regard, respect, love and affection" (supra n.l 1) unless the straightjacket formulas embodied in the various divorce laws are satisfied?

 

The Court went ahead and assessed the marriage, admitted it was broken, lay the blame at the feet of the husband and declared that law thereby precluded the husband from recognition of the fact that the marital union was broken. In the name of protection of the "institution of marriage" (supra n.2 at para.19), the Supreme Court rewrote half a century of jurisprudential progression and declared its faith in the fault theory of divorce. Consequently, the Court seems to have dumped the doctrine of irretrievable breakdown of marriage into the historical dustbin of rejected ideas. Can it be retrieved?