Under Article 142(1), the Supreme Court may pass decrees or orders “as is necessary for doing complete justice in any cause or matter pending before it”.
THE SUPREME Court on Monday held that it can exercise its powers under Article 142(1) of the Constitution to grant divorce on the ground of “irretrievable breakdown” of a marriage — whether it is by mutual consent, or even if one of the parties opposes it. It also said that it can waive the six-month waiting period mandated under the Hindu Marriage Act, 1955, under certain conditions.
Under Article 142(1), the Supreme Court may pass decrees or orders “as is necessary for doing complete justice in any cause or matter pending before it”.
The five-judge Constitution Bench led by Justice S K Kaul, however, said that the “grant of divorce 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”.
Similarly, it said that “the waiver (of six-month waiting period) is not to be given on mere asking, but on the court being satisfied beyond doubt that the marriage has shattered beyond repair.”
“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,” said the Bench, also comprising Justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari.
It also said that a person cannot directly approach the Supreme Court and seek dissolution of marriage on the ground of irretrievable breakdown. “The reason is that the remedy of a person aggrieved by the decision of the competent judicial forum is to approach the superior tribunal/ forum for redressal of his/ her grievance. The parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution of India, as the case may be,” said the Bench.
Under the Hindu Marriage Act, a couple seeking divorce by mutual consent must wait for at least six months after filing the first motion, for further proceedings in the matter.
The Bench on Monday held that it “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”. It, however, cautioned that “this power should be exercised with care and caution.”
Writing for the Bench, Justice Sanjiv Khanna said that in such a situation, the “court acts as a problem solver by balancing out equities between the conflicting claims”.
In its 61-page order, the court said that in exercise of its powers under Article 142(1) of the Constitution, it can also “quash and set aside other proceedings and orders, including criminal proceedings” like those under the Domestic Violence Act between the parties.
Referring to the court’s previous decisions related to the matter, the Bench said: “If at all, the underlying fundamental issues of public policy, as explained in the judgments… support the view that it would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue”.
On the six-month waiting period, it said: “Clearly, the legislative intent… is that the couple/ party must have time to introspect and consider the decision to separate before the second motion is moved”. But, it said, there may be situations when “the divorce is inevitable… (then) the cooling-off period of six months, if at all, breeds misery and pain, without any gain and benefit.”
This may happen when the parties, “after some years of acrimonious litigation and prolonged suffering… with a view to have a fresh start, jointly pray to the court to dissolve the marriage, and seek waiver of the need to move the second motion. On account of irreconcilable differences, allegations and aspersions made against each other and the family members, and in some cases multiple litigations including criminal cases, continuation of the marital relationship is an impossibility,” it said.
The “procedural requirement to move the court with the second motion after a gap of six months acts as an impediment in the settlement” of such cases, it said.
“At times, payment of alimony and permanent lump-sum maintenance gets delayed, while anxiety and suspicion remain,” the court said, adding, “here, the procedure should give way to a larger public and personal interest of the parties in ending the litigation(s), and the pain and sorrow effected, by passing a formal decree of divorce, as de-facto the marriage had ended much earlier”.
Easing the process
Recognition of “irretrievable breakdown” as a condition for divorce is a departure from the existing law, and lays stress on doing “complete justice” to both parties without apportioning blame, where the court is convinced that the marriage is dead.
“The time gap is meant to enable the parties to cogitate, analyse and take a deliberated decision. The object of the cooling-off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out,” it said.
“Therefore, once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant divorce,” it said.
Advising caution in granting divorce on the ground of irretrievable breakdown, the Bench said the “court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward”.
“That the marriage has irretrievably broken down is to be factually determined and firmly established,” it said, and outlined some of the factors which have to considered for this, including the time period for which the couple cohabitated, nature of allegations, whether, and how many, attempts were made to settle the disputes by intervention of the court or through mediation etc.
However, the Bench added that it “would not like to codify the factors so as to curtail exercise of jurisdiction under Article 142(1) of the Constitution of India, which is situation specific.”
“These facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent,” it said.
On April 27, a two-judge Bench of the court had held that irretrievable breakdown of a marriage can be read as amounting to cruelty under the Hindu Marriage Act and can be a ground for divorce.
