This Article has been written by Ms. Shamyana Parveen, a 5th Year B.A.LL.B. Student of Bikash Bharati Law College, Kolkata.

Abstract:

Judicial activism is the term used to describe the interference of the judiciary in the legislative and executive fields, especially in matters of public interest. Judicial activism in interpreting Hindu divorce laws refers to the way the courts have expanded the grounds and scope of divorce for Hindu couples, beyond what is prescribed by the Hindu Marriage Act, 1955. 

Introduction:

Judicial activism has always been a source of heated debate, particularly in the light of recent developments in this regard. In the last few years, with several controversial decisions, the Supreme Court judges, as well as the numerous High Courts, have again triggered a debate that has always been very strong. However, what the word “judicial activism” actually connotes is still a mystery. Under the Indian Constitution, the State is under the prime obligation to ensure justice, liberty, equality, and fraternity in the country. In this sense, the Indian judiciary has been seen as the guardian and defender of the Indian Constitution. Considering its constitutional duty, the Indian judiciary has played an active role, whenever necessary, in protecting the individual’s fundamental rights against the State’s unjust, excessive, and unequal actions/ inactions. Therefore, the idea of judicial activism is the exact opposite of judicial restraint. Judicial activism and judicial restraint are the two terms used to describe the philosophy and motivation behind some judicial decisions. There are different perspectives and arguments on the role and extent of judicial intervention in matters of personal law, especially when it comes to the rights and interests of women. Some scholars and activists support judicial activism as a means of reforming and modernizing the Hindu law of marriage and divorce, which they consider to be patriarchal, discriminatory and outdated. They argue that the judiciary has the power and duty to interpret the law in accordance with the constitutional values of equality, dignity and justice, and to protect the rights of women who suffer from domestic violence, desertion, cruelty and other forms of marital breakdown.

Historical Background of Judicial Activism:

The concept of judicial activism found its roots in the English concepts of ‘equity’ and ‘natural rights’. The root of judicial activism in India is very difficult to find. For a very long time, the Indian judiciary had adopted an orthodox approach to the very concept of judicial activism. It would be wrong, however, to say that there have been no incidents of judicial activism in India. Some scattered and stray incidents of judicial activism have taken place from time to time. But, they did not come to the fore as the very concept was unknown to India. However, the history of judicial activism can be traced back to 1893, when Justice Mehmood of the Allahabad High Court delivered a dissenting judgment which sowed the seed of judicial activism in India.

Indian Scenario

Judicial activism, as the modern terminology denotes, originated in India much later. This origin can be traced to the Theory of Social Want propounded by David McClelland. It was due to executive abuses and excesses that the judiciary had to intervene during legal proceedings. Let us look into the rationale behind such intervention. After independence from the British Raj, the executive has always looked upon the judiciary as a hostile branch of the State. This view gained more momentum and popularity when the bureaucracy degenerated into a system for personal and not public gains.

Exploitation and Corruption have been part of the existing political structure. The masses were oppressed beyond imagination by the unbridled actions of Money Power, Muscle Power, Media Power, and Ministerial Power. Judicial policymaking can be either activity in support of or in opposition to, legislative and executive policy choices. But the latter is generally referred to as judicial activism. The nature of true judicial activism is the making of judgments under the mood and time of the times. Judiciary policy activism promotes the cause of social change or articulates concepts such as freedom, equality, or justice. It’s got to be the arm of the social movement. An activist judge triggers the legal system and makes it a crucial part of the socio-economic cycle.

Meaning of Judicial Activism:

Since the judiciary has come to be recognized as an autonomous and separate government body under the Government of India Act, 1935, and subsequently under the Constitution of India, it would be wise to look at the time following 1935 for the tracing of origin. A new rule is put in place not only to fix and resolve the present problem, but also to extend generally to all potential problems which are not presently before the Court, but are likely to occur in the future. According to Black’s Law Dictionary judicial activism is described as: “a theory of judicial decision-making by which judges allow their personal opinions on public policy, among other factors, to direct their decisions, usually with the implication that adherents to this theory appear to find constitutional violations and are willing to disregard precedents.”

Judicial Activism:

Judicial intervention can be seen in three ways: Firstly, by overturning any statute as unconstitutional, Secondly, by overturning judicial precedents and, Thirdly, by reading the Constitution. In simple terms, judicial activism can be seen as the political role played by the judiciary, much like the other two executive and legislative ones. Judicial activism is justified on different grounds, such as the fall of the government, which requires the judiciary to provide assistance and policies for public welfare. The definition of activism differs from community to community, these categories are law teachers, businessmen, judges, police officers, administrative officials, students, etc. Any act which is perceived to be activism by one party, but at the same time can become judicial inactivity for other groups. The idea of judicial populism can be seen as associated with judicial absolutism, judicial chaos, judicial hegemony, and judicial imperialism. Judicial restraint, also known as judicial independence. It is synonymous to judicial liberalism. Judicial intervention and judicial restraint are words used to stress the ‘right position of the Courts.’

Judicial Activism in Interpreting Hindu Divorce Laws:

This phenomenon of judicial intervention and innovation in the field of divorce law is known as judicial activism. Judicial activism is the term used to describe the interference of the judiciary in the legislative and executive fields, especially in matters of public interest. Judicial activism in interpreting Hindu divorce laws refers to the way the courts have expanded the grounds and scope of divorce for Hindu couples, beyond what is prescribed by the Hindu Marriage Act, 1955.

The judicial activism in interpreting Hindu divorce laws can be seen as a response to the changing social realities and expectations of the Hindu society. The courts have tried to balance the interests of the individual and the institution of marriage, and to protect the rights and dignity of the spouses, especially the women. The courts have also attempted to harmonize the Hindu personal laws with the constitutional values of equality, dignity, and justice. However, judicial activism also has its limitations and challenges, such as the lack of uniformity, consistency, and predictability in the judicial decisions, the possibility of judicial overreach and encroachment on the legislative domain, and the need for a comprehensive and codified law on divorce that reflects the contemporary needs and aspirations of the Hindu community.

The Hindu Marriage Act, 1955 provides for divorce on the basis of fault, mutual consent, and breakdown of marriage. The fault grounds include adultery, cruelty, desertion, conversion, insanity, leprosy, venereal disease, and renunciation of the world. The mutual consent ground requires the spouses to live separately for at least one year and agree to dissolve their marriage. The breakdown ground allows the court to grant divorce if the marriage has irretrievably broken down and there is no possibility of reconciliation.

However, the courts have not strictly adhered to these grounds and have adopted a liberal and progressive approach in granting divorce to Hindu couples. The courts have interpreted the term ‘cruelty’ in a broad and subjective manner, taking into account the mental and emotional aspects of the spouses. The courts have also recognized new forms of cruelty, such as denial of sex, false accusations, refusal to perform marital obligations, and harassment for dowry. The courts have also applied the doctrine of ‘irretrievable breakdown of marriage’ as an independent ground of divorce, even though it is not explicitly mentioned in the Hindu Marriage Act, 1955. The courts have justified this by invoking their inherent powers under Section 151 of the Code of Civil Procedure, 1908 and Article 142 of the Constitution of India, which empower them to do complete justice in any matter pending before them.

Divorce is the legal dissolution of a marriage by a court or other competent authority. Divorce laws vary across different religions and countries, depending on the social, cultural, and legal norms of the respective communities. In India, divorce laws are governed by the personal laws of the parties, which are based on their religious affiliations. For Hindus, the Hindu Marriage Act, 1955 is the main legislation that regulates the conditions, grounds, and procedures for divorce.

Some Of The Landmark Cases That Illustrate The Judicial Activism In Interpreting Hindu Divorce Laws Are:

Keshavananda Bharati v. State of Kerala, where the Supreme Court laid down the doctrine of basic structure of the Constitution, which limits the power of the parliament to amend the Constitution in a way that affects its core values and principles. This doctrine has been used by the courts to protect the rights and interests of the citizens from arbitrary and unreasonable laws, including the personal laws of the Hindus.

Dastane v. Dastane, where the Supreme Court held that cruelty, as a ground for divorce under Section 13 of the Hindu Marriage Act, 1955, does not require physical violence or injury, but can also include mental and emotional torture, humiliation, and harassment. The Supreme Court also held that the standard of proof for cruelty is not beyond reasonable doubt, but based on the preponderance of probabilities.

Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga, where the Supreme Court held that desertion, as a ground for divorce under Section 13 of the Hindu Marriage Act, 1955, does not mean mere physical separation, but also implies an intention to bring cohabitation permanently to an end. The Supreme Court also held that the burden of proof for desertion lies on the party who alleges it, and that the deserting spouse cannot take advantage of his or her own wrong.

Another example of judicial activism in interpreting Hindu divorce laws was the case of Sarla Mudgal v. Union of India, where the Supreme Court held that a Hindu husband cannot convert to Islam and marry another woman without dissolving his first marriage under the Hindu Marriage Act, 1955. The Supreme Court also directed the government to enact a uniform civil code to prevent such cases of bigamy and fraud.

Conclusion:

These cases show that the judiciary has played an active role in interpreting and reforming the Hindu divorce laws, as well as the personal laws of other communities, in order to protect the rights and interests of the women and to promote the values of the Constitution. However, judicial activism also has its limitations and challenges, such as the lack of judicial expertise, the possibility of judicial overreach, the resistance from the religious groups, and the delay in the legislative action. Therefore, judicial activism should be balanced with judicial restraint and respect for the separation of powers and the democratic process.

There are different perspectives and arguments on the role and extent of judicial intervention in matters of personal law, especially when it comes to the rights and interests of women. Some scholars and activists support judicial activism as a means of reforming and modernizing the Hindu law of marriage and divorce, which they consider to be patriarchal, discriminatory and outdated. They argue that the judiciary has the power and duty to interpret the law in accordance with the constitutional values of equality, dignity and justice, and to protect the rights of women who suffer from domestic violence, desertion, cruelty and other forms of marital breakdown.

Reference:

1. This article originally written by Lawn published on LAWNN website. The link for the same is herein. https://www.lawnn.com/judicial-separation.
2. This article originally written by VC Shukla published on Bar And Bench website. The link for the same is herein. https://www.barandbench.com/apprentice-lawyer/the-uniform-civil-code-judicial-activism.
3. This article originally written by M.M. Semal and Sunil Khosla published on JSTOR website. The link for the same is herein. https://www.jstor.org/stable/41856396.
4. This article originally written by Surana and Surana Law Firm published on Business Laws website. The link for the same is herein. https://www.thehindubusinessline.com/business-laws/judicial-adventurism-time-to-introspect/article34465686.ece.
5. This article originally written by Anivesh Kanodia published on Medium website. The link for the same is herein. https://medium.com/@LegalBlog/cruelty-as-a-ground-of-divorce-under-hindu-law-122d8eb131cc.
6. This article originally written by Prime Legal published on Prime Legal website. The link for the same is herein. https://primelegal.in/2021/03/23/an-analysis-on-the-use-of-judicial-activism-in-statutory-interpretation/.