New Delhi | The Supreme Court held on Monday it has the discretion of exercising the plenary power it commands under Article 142 of the Constitution to dissolve a marriage on the ground of "irretrievable breakdown", and the authority to dispense with the 6-month waiting period mandated under the Hindu Marriage Act, 1955 while granting divorce with mutual consent.
The apex court made it clear that contesting parties cannot directly approach it and seek dissolution of marriage on the ground of irretrievable breakdown by filing a writ petition under Article 32 of the Constitution.
Article 32 gives Indian citizens the right to seek constitutional remedy from the Supreme Court if they have been deprived of their fundamental rights.
Article 142 of the Constitution deals with enforcement of decrees and orders of the apex court to do "complete justice" in any matter pending before it. As per Article 142(1), a decree passed or an order made by the apex court is executable throughout the territory of India.
Section 13-B of the Hindu Marriage Act deals with divorce by mutual consent and sub-section (2) to this provision provides, after the first motion has been passed, the parties would have to move the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than 18 months of the first motion.
A five-judge Constitution bench headed by Justice S K Kaul said Article 142(1) of the Constitution, which gives “wide and capacious power” to the apex court to do complete justice should be exercised in a legitimate manner and with caution, as its verdict ends the litigation between parties.
It said grant of divorce by the apex court on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice' is done to both parties.
The bench was dealing with questions, including whether the top court can grant divorce in exercise of power under Article 142(1) of the Constitution when there is complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer.
“This question is also answered in the affirmative, inter alia, holding that this court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown,” said the bench, also comprising Justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari.
“This discretionary power is to be exercised to do ‘complete justice' to the parties, wherein this court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified,” it said.
Commenting on the verdict, senior advocate and Supreme Court Bar Association President Vikas Singh said he is against the judgement and the reason is that perhaps twice the Bills were moved in Parliament to amend the Hindu Marriage Act to include the aspect of ‘irretrievable background' of marriage as a ground of divorce and Parliament rejected it twice.
“Hence, according to me, this was purely a subject which was considered by Parliament,” he said, adding, “You can give judgement where you see that there was a grey area where Parliament did not discuss or thought of. But, here Parliament thought over the issue and rejected it.” Singh said irretrievable breakdown of marriage as grounds of divorce has been rejected by Parliament and, according to him, this is not the subject which could have been adjudicated by the court in the judicial pronouncement.
“In such a situation where Parliament has already looked into a particular subject and felt that it is not necessary to amend the law then to still do the very same thing by a judicial order, according to me, is not appropriate,” Singh said.
In its 61-page verdict, answering the question about the scope and ambit of power and jurisdiction of the apex court under Article 142(1) of the Constitution, the bench held the top court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy.
“While deciding whether to exercise discretion, this court must consider the substantive provisions as enacted and not ignore the same, albeit this court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a ‘cause or matter',” it said.
The apex court also dealt with another question as to whether it can, while hearing a transfer petition or in any other proceedings, exercise power under Article 142(1), in view of settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and procedure prescribed under section 13-B of the Hindu Marriage Act.
It also considered if it can quash and dispose of other proceedings under the Domestic Violence Act, section 125 of the CrPC or criminal prosecution under section 498-A and other provisions of the Indian Penal Code.
While section 125 of the Code of Criminal Procedure (CrPC) pertains to order for maintenance of wives, children and parents, section 498-A of the IPC deals with offence of subjecting a married woman to cruelty.
“In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this 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,” the apex court said.
It said section 13-B of the Hindu Marriage Act does not impose any fetters on powers of the apex court to grant a decree of divorce by mutual consent on a joint application, when the substantive conditions of the section are fulfilled and the court, after referring to the factors mentioned above, is convinced and of the opinion that the decree of divorce should be granted.
In its verdict, the top court also dealt with the issue of whether a party can directly canvass before it the ground of irretrievable breakdown by filing a writ petition under Article 32 of the Constitution.
Referring to a verdict delivered earlier by a two-judge bench of the apex court, the bench said it was rightly held that any such attempt must be spurned and not accepted, as the parties should not be permitted to file a writ petition under Article 32 or Article 226 of the Constitution before the high court and seek divorce on the ground of irretrievable breakdown of marriage.
New Delhi | Activists, lawyers and women rights bodies on Monday welcomed the Supreme Court decision to do away with the six-month waiting period for divorce through mutual consent under some conditions, saying it will give a chance to women to move on and plan their future.
The apex court held on Monday it has the discretion to dissolve a marriage on the ground of “irretrievable breakdown” in exercise of its plenary power under Article 142 (1) of the Constitution and can grant divorce by mutual consent while dispensing with the 6-month waiting period mandated under the Hindu Marriage Act, 1955.
National Commission for Women (NCW) chairperson Rekha Sharma said the decision will help women move ahead in their lives.
"I welcome the decision. If done with mutual consent, it will give a chance to women to move ahead in their lives and plan their future," she told PTI.
Women rights activist and founder of PARI (People Against Rapes in India) Yogita Bhayana said it is a progressive verdict, but the term 'irretrievable breakdown of marriage' should be clearly defined.
"Also, how the alimony would be given should be clearly stated," she told PTI.
Lawyer Prabhsahay Kaur said the top court verdict is premised on the principle that no consenting adults should be forced to continue a marriage which has irretrievably broken down.
She said the court has taken a balanced view and clarified that the grant of divorce under such circumstances cannot be done on a regular basis.
"In my view, there are two basic principles on which this judgement is premised --firstly, it is the duty of the court, and particularly, the Supreme Court to do complete justice to the parties, in which endeavour court should not be bogged down by procedural requirements; secondly, no two consenting adults who have had an irretrievable breakdown of marriage should be forced to be in a formal legal relationship, for that causes more misery and acrimony and is against the interest of both parties,” Kaur said.
The lawyer called it a welcome move, but said the court has also cautioned against its use regularly and stated that it should be exercised with care and caution, while listing out factors that should be applied.
Advocate Abhishek Prasad said the judgement has reaffirmed the Supreme Court's powers to do complete justice and rightly outweighed the interests of the parties over procedural requirements.
He said the judgement reinforces the idea that delaying the grant of divorce in marriages that cannot be repaired only leads to prolonging the agony of the parties.
"The judgment reinforces the idea that where a marriage has irretrievably broken down, prolonging its dissolution only prolongs the agony of the parties. While the six months waiting period has been made mandatory with a view to explore the possibility of reconciliation, in cases where there is no possibility of reconciliation, this becomes a mere procedural formality,” he added.
Prasad said requiring such couples to nonetheless comply with this formality/ technicality is nothing short of injustice.
"The Supreme Court having considered the same and being a court of equity as well as being entrusted with doing complete justice, has rightly outweighed the interests of the parties over procedural requirements. With this landmark judgment, the wide ambit of the powers that the Supreme Court has for imparting justice stands reaffirmed and settled," he said.
Activist Ranjana Kumari said there is no point in wasting time in case of "irretrievable breakdown of marriage".
“The judgement is progressive and it is very good for both. In six months, the inspectors who do the counselling do not even understand the issue,” she told PTI.
Senior advocate and SCBA president Vikas Singh, however, argued that the matter was already looked into by the Parliament and the same should not have been adjudicated by the court.
"... perhaps twice the Bills were moved in Parliament to amend the Hindu Marriage Act to include the aspect of ‘irretrievable breakdown' of marriage as a ground of divorce and the Parliament rejected it twice. You can give a judgement where you see that there was a grey area which the Parliament did not discuss or thought of. But, here the Parliament thought over the issue and rejected it," he said.
"The irretrievable breakdown of marriage as grounds of divorce has been rejected by Parliament. They are wanting to make it a ground of divorce in the Hindu Marriage Act, but this is not a ground in India. This is under several western jurisdictions as a ground of divorce. According to me, this is not the subject which could have been adjudicated by the court in the judicial pronouncement," Singh added.
A five-judge constitution bench headed by Justice S K Kaul on Monday said grant of divorce by the apex court on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice' is done to both parties.
The bench was dealing with questions, including whether the top court can grant divorce in exercise of power under Article 142(1) of the Constitution when there is complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer.
