If marriages are made in heaven, as they say, there should not be any reason that different communities belonging to different faiths and religions should ever be governed by separate codes for bringing an end to the marital tie. Way in 1985, the supreme court recommended to the government to intervene to “provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situation” being faced by certain couples.
Sixteen years hence, the court has again recalled that judgment (Ms Jorden Diengdeh vs S.S. Chopra) suggesting a common law of marriage applicable to “all people irrespective of religion or caste”. Justice R.P. Sethi and Justice Y. K. Sabharwal’s verdict (Savitri Pandey vs Prem Chandra Pandey) has wondered over the fact even when an unhappy couple asserts that their marriage had come to an end, they can still not be divorced or separated by a decree under the prevailing law.
It may be because the jurisprudence and ethos strongly believe in the divorce or separation can also a consequence of marriage besides a complete society.
The sanctity of marriage cannot be left at the whims of one of annoying spouses. Irretrievable breakdown of the marriage is not a ground by itself to dissolve it, the law says. Then, there are ways to overcome this. If a decree of divorce is granted and it is not stayed by the appellate court, the beneficiary of the decree can marry someone although the appeal is pending against the divorce order. Would that marriage be null and void? If yes, what would happen to the children born out of that marriage? Would the new spouse (husband or wife) who happens to be the mother or father of the children from the post-decree marriage be asked to separate for good? Would that serve the social purpose for which certain legislations have been enacted?
Answer lies in ‘No’. It is felt that the period of appeal should be increased to 90 days instead of 30 days. Even if the decree is not stayed, the marriage performed by the litigating spouses during pendency of the appeal must be considered null and void. Such a marriage is not like indulging in a construction of building at one’s own risk and peril. Meaning, if the builder’s plea is rejected, the building would be demolished by a judicial order. The courts acting as a mediator to resolve the matrimonial disputes cannot be expected to become bulldozers of the institution of marriage.
“No party can be permitted to carve out the ground for destroying the family which is the basic unit of the society. The foundation of the family rests on the institution of a legal and valid marriage”, said the bench as it counselled the courts that their approach should be to “preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties”.
If that be so, should not the laws
leave it to the spouses, alone to decide what is best for them? Instead,
austerity and dowry less marriages are made compulsory through stringent
laws.