The Evening Wrap: Divorce can be granted on ‘grounds of irretrievable breakdown’, says SC

The Supreme Court on May 1 held its extraordinary discretion under Article 142 of the Constitution can be used to do “complete justice” for couples trapped in bitter marriages by granting them divorce by mutual consent, thus sparing them the “misery” of having to wait six to 18 months for a local court to grant a decree of annulment. A Constitution Bench headed by Justice Sanjay Kishan Kaul observed that the same extraordinary power could be used by the court to quash pending criminal or legal proceedings, be it domestic violence or dowry, between the couples. This would wipe the slate clean and help them start afresh their separate lives. Prior to this judgment, a couple seeking divorce by mutual consent under Section 13-B of the Hindu Marriage Act had to file a joint petition in a local court. In it, they had to claim that they were living separately for a year or more and were unable to live together again. The duo had to then wait for six to 18 months before making a second motion before the same court. This time, they had to confirm their decision to divorce. Following which, the judge would make a formal inquiry before granting them a decree of divorce by mutual consent. On May 1, the Supreme Court short-circuited the whole process. It did away with the “cooling-off period” of six to 18 months and the need for a second motion. Instead, a couple seeking divorce by mutual consent could directly apply to the Supreme Court. The court, in deserving cases, would use its discretion under Article 142 and grant them divorce without making them wait for months. “The Supreme Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution… This court can also, in exercise of power under Article 142(1), quash and set aside other proceedings and orders, including criminal proceedings,” the Constitution Bench held. Justice Sanjiv Khanna, who wrote the judgment for the five-judge Bench, said the cooling-off period was time for couples to introspect. However, he reasoned that in cases in which divorce was inevitable and the marriage was beyond salvage, a six-month or a year-and-half-long wait would only “breed misery and pain, without any gain and benefit”. The Bench further held, in a separate part of the judgment, that the Supreme Court could use Article 142 to also grant divorce on the ground of “irretrievable breakdown of marriage”. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act. But the court reasoned that divorce should not be withheld if the “separation is inevitable and the damage is irreparable”. However, the judgment cautioned that grant of divorce by the Supreme Court on the ground of irretrievable breakdown of marriage was “not a matter of right, but a discretion which is to be exercised with great care and caution”. Justice Khanna said the irretrievable breakdown of the marriage had to be “factually determined and firmly established”. Factors like the years lived apart by the parties, the nature of allegations, attempts made to settle through mediation, etc, need to be considered by the apex court. The court said the facts established must show that “the marriage has completely failed and there is no possibility that the parties will cohabit together”. Rajya Sabha Chairman summons CPI(M) leader over article critical of Amit Shah Rajya Sabha Chairman Jagdeep Dhankar has summoned CPI(M) MP John Brittas and asked him to explain an article he wrote for English daily ‘The Indian Express’ critical of Home Minister Amit Shah. In the piece titled “Perils of Propaganda” that appeared on February 20, Brittas accused the Home Minister of making frequent negative remarks against Kerala, adding that this betrays a “dislike” for a State where the BJP has “miserably failed in garnering electoral gains through its usual set of divisive tricks and polarising poll strategies.” On March 6, the MP got a letter from the Vice-President’s office summoning him in regard to a “complaint” that they have received about his article. The complaint was filed by general secretary of the BJP’s Kerala unit, P. Sudheer who called the piece “divisive” and sought “suitable action” against his “seditious conduct.” A second reminder was sent to him on April 17. On April 19, the MP met the Vice-President. Both the Vice-President’s office and Brittas remain mum about the interaction. Brittas told The Hindu that the meeting was cordial and Dhankhar gave him a patient hearing. “I am, in fact, more astonished and baffled by the way BJP drags the constitutional positions into parochial political battles,” he said. The Rajya Sabha secretariat has denied that the MP has been served a “show-cause” notice or a written explanation has been sought. The letter seeking his presence was only for an oral explanation, it insisted. Many Opposition leaders have reacted sharply on the issue. ongress MP Karti P. Chidambaram tweeted, “I guess John Brittas is being pulled up for articulating the truth.” RJD MP Manoj Kumar Jha also spoke out against the action. “Ironically the statement of the minister was a brazen example of ‘sedition’ and not the response of John Brittas in his piece. But this entire episode tells us how the ‘deep state’ is working,” he tweeted. Acts of missionaries to spread Christianity by themselves cannot be seen as illegal, T.N. government tells SC The acts of missionaries to spread Christianity by themselves cannot be seen as illegal, the Tamil Nadu government has told the Supreme Court. “Article 25 (freedom of religion) of the Constitution guarantees every citizen the right to propagate his religion. Therefore, the acts of missionaries spreading Christianity by themselves cannot be seen as something against the law. But if their act of spreading their religion is against public order, morality and health and to other provisions of Part III of the Constitution, it has to be viewed seriously,” the State said. Any person has the right to propagate and preach his belief system to other persons without the use of intimidation, threats, deceit, allurement, superstition or black magic, it said. Tamil Nadu, represented by senior advocate P. Wilson, noted that a person does not have a fundamental right to turn another to his or her own religion. But every person has a right to propagate her religion. Likewise, the Constitution does not prevent any person from getting converted to the religion of his choice, the State said. People have a choice to change their beliefs and even return to their original religious denominations, the State said. “The citizens of the country should be allowed freely to choose their religion. It would not be appropriate for the government to put spokes in their personal beliefs and privacy,” Tamil Nadu stressed. The right to have faith in a particular religion can be traced to Article 21 (right to a dignified life) of the Constitution. “It is an inviolable right,” the affidavit said. The State was responding to a petition filed by advocate Ashwini Kumar Upadhyay, who has sought an NIA/CBI investigation into the “root cause” of the death of a 17-year-old girl in Tamil Nadu amidst a swirl of accusations that she had been forced to convert to Christianity. The petition argued that forcible or deceitful conversion was a violation of fundamental rights. Forcible or deceitful religious conversion does not happen in Tamil Nadu, the State underscored. “Conversion of poor people to other religions by intimidation, threats, deceit, allurement through gifts, black magic or superstition are not reported in Tamil Nadu,” the affidavit submitted. Re-examination of sedition law in motion, consultations in final stage, Govt informs SC The government in the Supreme Court on May 1 said it has initiated the “process of re-examination” of Section 124A (sedition) of the Indian Penal Code and consultations are in their “final stage”. Appearing before a Bench led by Chief Justice of India D.Y. Chandrachud, Attorney General R Venkataramani said the government is “very keen”. He indicated that a “final shape” may be given to the exercise ahead of the next Parliament session. The court recorded Venkataramani’s submission that the consultations on the colonial-era Law were at a “substantially advanced stage”. It posted the case for hearing next in the second week of August 2023. In May last year, the court, in an interim order, had suspended the use of Section 124A, stalling pending criminal trials and court proceedings under Section 124A across the country. However, in October 2022, the petitioners had alleged in the apex court that arrests and prosecutions under Section 124A were continuing despite the freeze. As on May 1, the Union Government had, also on October 31 last year, assured the court that it was re-examining the colonial provision and “something may happen” in the then Winter Session of the Parliament. The Centre had further told a Bench led by then Chief Justice U.U. Lalit (retired) that no “transgressions”, as claimed by the petitioners, had come to its attention. On April 26, lawyers for petitioners, including senior advocate Gopal Sankaranarayanan, advocates Kaleeswaram Raj, P.B. Suresh, Vipin Nair and Prasanna S. urged the court to take up the case and strike down the provision of Section 124A. Raj said the May 2022 order had only kept Section 124A in abeyance, the provision required to be struck down immediately rather than occupy space in the statute book indefinitely. For now, the court has deferred its decision on whether the case needs to be referred to a Constitution Bench of either five or seven judges on the strength of the Attorney General’s submission. A judicial decision on the question of striking down Section 124A may require an examination of a 1962 Constitution Bench judgment in the Kedar Nath Singh case. This six-decade-old verdict of a five-judge Bench had upheld the legality of Section 124A though limiting its applicability to “activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”. However, petitioners who include senior journalists and prominent bodies and personalities have argued that the provision has been rampantly misused by the government to curb fundamental rights of life, dignity, personal liberty and the freedom to protest and dissent. In an earlier hearing, senior advocate Kapil Sibal argued that there had been a “sea-change” in the law post the 1962 judgment. Sibal had said how the right to protest and the right to dissent were choked by the sedition law. He had said the court should look beyond the Kedar Nath judgment and take judicial account of how the law of sedition was used by the state to snuff out the right to life and right to equal treatment. Centre bans Snapchat, 14 other apps in J&K citing use by terror organisations The Union government has banned 15 applications, including Snapchat, from marketplaces such as Google Play and the App Store in Jammu and Kashmir, following recommendations by the Ministry of Home Affairs, officials said. Most of the other apps are communication platforms that allow encrypted messaging, which the government said had been used by terror organisations in the region. Officials had earlier in the day indicated that these apps would be banned throughout India, but clarified later that restrictions would only be applicable in Jammu and Kashmir. Spokespeople for Snap Inc., which owns Snapchat, were unavailable for comment outside usual business hours on May Day. The other blocked apps include Threema, a messaging app that requires a paying subscription to use. At least one large car manufacturer with operations in India uses an enterprise version of Threema for internal communications, according to a blog post on Threema’s website. It is unclear if this variant of the app has been banned too — as of writing, both versions remain available on Google Play. Zangi, another popular private messaging app that doesn’t collect users’ phone numbers to let them register, is also banned. Other blocked apps are Crypviser and BChat, which say on their websites that they use blockchain technology to encrypt messages sent by users. Wickr Me is also a messaging app owned by Amazon Web Services that will not be available after 2023. File sharing service Mediafire is also in the list — it is unclear if separate directions have been issued to block its web version. Briar is a peer-to-peer messaging service that uses Bluetooth and other technologies to let users communicate even if they are not connected to the Internet. A similar app, Firefly, was used by protesters in Hong Kong during its pro-democracy protests. Nandbox, which is also reportedly blocked, is an app building platform that says on its website that it allows users to build their own messaging app. “We weren’t contacted by the Indian government before the app was blocked and we haven’t received a copy of the blocking order,” Michael Rogers, one of the founding members behind the Briar Project, told The Hindu in an emailed response. “The first we knew about this was reading about it in the news.” Rogers said the project would be reaching out to “friends at digital rights organisations” to explore options to challenge the blocking order. While platforms like WhatsApp use end-to-end encryption for the content of messages, the Meta-owned platform provides so-called metadata, such as a user’s phone book and call history upon request from law enforcement authorities in response to legal requests. In Brief: Up to 1,000 Indian engineers will be trained by Japanese experts before starting work on the High-Speed Rail Track system for Mumbai Ahmedabad High Speed Rail corridor (MAHSR). The bullet train being built between Mumbai and Ahmedabad will use the ballast-less Slab Track system (popularly known as J Slab track system) as used in Japanese Shinkansen high speed railways. The Japanese track system is unique in the world and technicians require a very high level of skill to lay it. There will be 15 different courses covering all aspects of track work, including training for Site Managers, Track Slab Manufacturing, RC Track Bed construction, Reference Pin survey and data analysis, Slab Track installation, CAM installation, Rail weld finishing, Enclosed Arc welding of rails and Turnout installation. Evening Wrap will return tomorrow. [logo] The Evening Wrap 01 May 2023 [The Hindu logo] Welcome to the Evening Wrap newsletter, your guide to the day’s biggest stories with concise analysis from The Hindu. [[Arrow]Open in browser]( [[Mail icon]More newsletters]( Divorce can be granted on ‘grounds of irretrievable breakdown’: Supreme Court The [Supreme Court on May 1 held its extraordinary discretion under Article 142 of the Constitution]( can be used to do “complete justice” for couples trapped in bitter marriages by granting them divorce by mutual consent, thus sparing them the “misery” of having to wait six to 18 months for a local court to grant a decree of annulment. A Constitution Bench headed by Justice Sanjay Kishan Kaul observed that the same extraordinary power could be used by the court to quash pending criminal or legal proceedings, be it domestic violence or dowry, between the couples. This would wipe the slate clean and help them start afresh their separate lives. Prior to this judgment, a couple seeking divorce by mutual consent under Section 13-B of the Hindu Marriage Act had to file a joint petition in a local court. In it, they had to claim that they were living separately for a year or more and were unable to live together again. The duo had to then wait for six to 18 months before making a second motion before the same court. This time, they had to confirm their decision to divorce. Following which, the judge would make a formal inquiry before granting them a decree of divorce by mutual consent. On May 1, the Supreme Court short-circuited the whole process. It did away with the “cooling-off period” of six to 18 months and the need for a second motion. Instead, a couple seeking divorce by mutual consent could directly apply to the Supreme Court. The court, in deserving cases, would use its discretion under Article 142 and grant them divorce without making them wait for months. “The Supreme Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution… This court can also, in exercise of power under Article 142(1), quash and set aside other proceedings and orders, including criminal proceedings,” the Constitution Bench held. Justice Sanjiv Khanna, who wrote the judgment for the five-judge Bench, said the cooling-off period was time for couples to introspect. However, he reasoned that in cases in which divorce was inevitable and the marriage was beyond salvage, a six-month or a year-and-half-long wait would only “breed misery and pain, without any gain and benefit”. The Bench further held, in a separate part of the judgment, that the Supreme Court could use Article 142 to also grant divorce on the ground of “irretrievable breakdown of marriage”. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act. But the court reasoned that divorce should not be withheld if the “separation is inevitable and the damage is irreparable”. However, the judgment cautioned that grant of divorce by the Supreme Court on the ground of irretrievable breakdown of marriage was “not a matter of right, but a discretion which is to be exercised with great care and caution”. Justice Khanna said the irretrievable breakdown of the marriage had to be “factually determined and firmly established”. Factors like the years lived apart by the parties, the nature of allegations, attempts made to settle through mediation, etc, need to be considered by the apex court. The court said the facts established must show that “the marriage has completely failed and there is no possibility that the parties will cohabit together”. Rajya Sabha Chairman summons CPI(M) leader over article critical of Amit Shah [Rajya Sabha Chairman Jagdeep Dhankar has summoned CPI(M) MP John Brittas]( and asked him to explain an article he wrote for English daily ‘The Indian Express’ critical of Home Minister Amit Shah. In the piece titled “Perils of Propaganda” that appeared on February 20, Brittas accused the Home Minister of making frequent negative remarks against Kerala, adding that this betrays a “dislike” for a State where the BJP has “miserably failed in garnering electoral gains through its usual set of divisive tricks and polarising poll strategies.” On March 6, the MP got a letter from the Vice-President’s office summoning him in regard to a “complaint” that they have received about his article. The complaint was filed by general secretary of the BJP’s Kerala unit, P. Sudheer who called the piece “divisive” and sought “suitable action” against his “seditious conduct.” A second reminder was sent to him on April 17. On April 19, the MP met the Vice-President. Both the Vice-President’s office and Brittas remain mum about the interaction. Brittas told The Hindu that the meeting was cordial and Dhankhar gave him a patient hearing. “I am, in fact, more astonished and baffled by the way BJP drags the constitutional positions into parochial political battles,” he said. The Rajya Sabha secretariat has denied that the MP has been served a “show-cause” notice or a written explanation has been sought. The letter seeking his presence was only for an oral explanation, it insisted. Many Opposition leaders have reacted sharply on the issue. ongress MP Karti P. Chidambaram tweeted, “I guess John Brittas is being pulled up for articulating the truth.” RJD MP Manoj Kumar Jha also spoke out against the action. “Ironically the statement of the minister was a brazen example of ‘sedition’ and not the response of John Brittas in his piece. But this entire episode tells us how the ‘deep state’ is working,” he tweeted. Acts of missionaries to spread Christianity by themselves cannot be seen as illegal, T.N. government tells SC [The acts of missionaries to spread Christianity by themselves cannot be seen as illegal]( the Tamil Nadu government has told the Supreme Court. “Article 25 (freedom of religion) of the Constitution guarantees every citizen the right to propagate his religion. Therefore, the acts of missionaries spreading Christianity by themselves cannot be seen as something against the law. But if their act of spreading their religion is against public order, morality and health and to other provisions of Part III of the Constitution, it has to be viewed seriously,” the State said. Any person has the right to propagate and preach his belief system to other persons without the use of intimidation, threats, deceit, allurement, superstition or black magic, it said. Tamil Nadu, represented by senior advocate P. Wilson, noted that a person does not have a fundamental right to turn another to his or her own religion. But every person has a right to propagate her religion. Likewise, the Constitution does not prevent any person from getting converted to the religion of his choice, the State said. People have a choice to change their beliefs and even return to their original religious denominations, the State said. “The citizens of the country should be allowed freely to choose their religion. It would not be appropriate for the government to put spokes in their personal beliefs and privacy,” Tamil Nadu stressed. The right to have faith in a particular religion can be traced to Article 21 (right to a dignified life) of the Constitution. “It is an inviolable right,” the affidavit said. The State was responding to a petition filed by advocate Ashwini Kumar Upadhyay, who has sought an NIA/CBI investigation into the “root cause” of the death of a 17-year-old girl in Tamil Nadu amidst a swirl of accusations that she had been forced to convert to Christianity. The petition argued that forcible or deceitful conversion was a violation of fundamental rights. Forcible or deceitful religious conversion does not happen in Tamil Nadu, the State underscored. “Conversion of poor people to other religions by intimidation, threats, deceit, allurement through gifts, black magic or superstition are not reported in Tamil Nadu,” the affidavit submitted. Re-examination of sedition law in motion, consultations in final stage, Govt informs SC [The government in the Supreme Court on May 1 said it has initiated the “process of re-examination”]( Section 124A (sedition) of the Indian Penal Code and consultations are in their “final stage”. Appearing before a Bench led by Chief Justice of India D.Y. Chandrachud, Attorney General R Venkataramani said the government is “very keen”. He indicated that a “final shape” may be given to the exercise ahead of the next Parliament session. The court recorded Venkataramani’s submission that the consultations on the colonial-era Law were at a “substantially advanced stage”. It posted the case for hearing next in the second week of August 2023. In May last year, the court, in an interim order, had suspended the use of Section 124A, stalling pending criminal trials and court proceedings under Section 124A across the country. However, in October 2022, the petitioners had alleged in the apex court that arrests and prosecutions under Section 124A were continuing despite the freeze. As on May 1, the Union Government had, also on October 31 last year, assured the court that it was re-examining the colonial provision and “something may happen” in the then Winter Session of the Parliament. The Centre had further told a Bench led by then Chief Justice U.U. Lalit (retired) that no “transgressions”, as claimed by the petitioners, had come to its attention. On April 26, lawyers for petitioners, including senior advocate Gopal Sankaranarayanan, advocates Kaleeswaram Raj, P.B. Suresh, Vipin Nair and Prasanna S. urged the court to take up the case and strike down the provision of Section 124A. Raj said the May 2022 order had only kept Section 124A in abeyance, the provision required to be struck down immediately rather than occupy space in the statute book indefinitely. For now, the court has deferred its decision on whether the case needs to be referred to a Constitution Bench of either five or seven judges on the strength of the Attorney General’s submission. A judicial decision on the question of striking down Section 124A may require an examination of a 1962 Constitution Bench judgment in the Kedar Nath Singh case. This six-decade-old verdict of a five-judge Bench had upheld the legality of Section 124A though limiting its applicability to “activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”. However, petitioners who include senior journalists and prominent bodies and personalities have argued that the provision has been rampantly misused by the government to curb fundamental rights of life, dignity, personal liberty and the freedom to protest and dissent. In an earlier hearing, senior advocate Kapil Sibal argued that there had been a “sea-change” in the law post the 1962 judgment. Sibal had said how the right to protest and the right to dissent were choked by the sedition law. He had said the court should look beyond the Kedar Nath judgment and take judicial account of how the law of sedition was used by the state to snuff out the right to life and right to equal treatment. Centre bans Snapchat, 14 other apps in J&K citing use by terror organisations [The Union government has banned 15 applications, including Snapchat]( from marketplaces such as Google Play and the App Store in Jammu and Kashmir, following recommendations by the Ministry of Home Affairs, officials said. Most of the other apps are communication platforms that allow encrypted messaging, which the government said had been used by terror organisations in the region. Officials had earlier in the day indicated that these apps would be banned throughout India, but clarified later that restrictions would only be applicable in Jammu and Kashmir. Spokespeople for Snap Inc., which owns Snapchat, were unavailable for comment outside usual business hours on May Day. The other blocked apps include Threema, a messaging app that requires a paying subscription to use. At least one large car manufacturer with operations in India uses an enterprise version of Threema for internal communications, according to a blog post on Threema’s website. It is unclear if this variant of the app has been banned too — as of writing, both versions remain available on Google Play. Zangi, another popular private messaging app that doesn’t collect users’ phone numbers to let them register, is also banned. Other blocked apps are Crypviser and BChat, which say on their websites that they use blockchain technology to encrypt messages sent by users. Wickr Me is also a messaging app owned by Amazon Web Services that will not be available after 2023. File sharing service Mediafire is also in the list — it is unclear if separate directions have been issued to block its web version. Briar is a peer-to-peer messaging service that uses Bluetooth and other technologies to let users communicate even if they are not connected to the Internet. A similar app, Firefly, was used by protesters in Hong Kong during its pro-democracy protests. Nandbox, which is also reportedly blocked, is an app building platform that says on its website that it allows users to build their own messaging app. “We weren’t contacted by the Indian government before the app was blocked and we haven’t received a copy of the blocking order,” Michael Rogers, one of the founding members behind the Briar Project, told The Hindu in an emailed response. “The first we knew about this was reading about it in the news.” Rogers said the project would be reaching out to “friends at digital rights organisations” to explore options to challenge the blocking order. While platforms like WhatsApp use end-to-end encryption for the content of messages, the Meta-owned platform provides so-called metadata, such as a user’s phone book and call history upon request from law enforcement authorities in response to legal requests. In Brief: Up to 1,000 Indian engineers will be trained by Japanese experts before starting work on the High-Speed Rail Track system for Mumbai Ahmedabad High Speed Rail corridor (MAHSR). The bullet train being built between Mumbai and Ahmedabad will use the ballast-less Slab Track system (popularly known as J Slab track system) as used in Japanese Shinkansen high speed railways. The Japanese track system is unique in the world and technicians require a very high level of skill to lay it. There will be 15 different courses covering all aspects of track work, including training for Site Managers, Track Slab Manufacturing, RC Track Bed construction, Reference Pin survey and data analysis, Slab Track installation, CAM installation, Rail weld finishing, Enclosed Arc welding of rails and Turnout installation. Evening Wrap will return tomorrow. 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