The Supreme Court said 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.
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.
