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Supreme Court rules it can directly grant divorce to couples under Article 142: How this works

A five-judge Constitution Bench of the Supreme Court on Monday ruled that it can exercise its plenary power to do “complete justice” under Article 142(1) of the Constitution to dissolve a marriage on the ground that it had broken down irretrievably, without referring the parties to a family court where they must wait 6-18 months for a decree of divorce by mutual consent.

The Bench led by Justice S K Kaul held that the court could, in the exercise of this power, waive the mandatory six-month waiting period for divorce under The Hindu Marriage Act (HMA), 1955, and allow the dissolution of the marriage on grounds of irretrievable breakdown even if one of the parties was not willing. (Shilpa Sailesh vs Varun Sreenivasan case)

What is the current procedure for divorce under the Hindu Marriage Act?

Section 13B of the HMA provides for “divorce by mutual consent”. Both parties to the marriage must together file a petition to the district court “on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved”.

Under Section 13B(2) of the Act, the parties must move a second motion before the court “not earlier than six months after the date of the presentation of the [first] petition…and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime”.

The mandatory six-month wait is intended to give the parties time to withdraw their plea.

Festive offer

Thereafter, “the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit…that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree”.

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A petition for divorce by mutual consent can be moved only after a year of the marriage. However, Section 14 of the HMA allows a divorce petition sooner in case of “exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent”.

A waiver of the six-month waiting period under Section 13B(2) can be sought in an exemption application filed before the family court.

In its 2021 ruling in Amit Kumar vs Suman Beniwal, the SC said, “Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage.”

The process of obtaining a decree of divorce is often time-consuming and lengthy owing to a large number of similar cases pending before family courts.

And what is Article 142 of the Constitution?

Under Subsection 1 of Article 142, the Supreme Court “may pass such decree or make such order as is necessary for doing complete justice in any cause or matter…, and any decree so passed or order so made shall be enforceable throughout the territory of India”.

While the power available under Article 142 is sweeping, the SC has defined its scope and extent through its judgments. The majority opinion in Prem Chand Garg (1962) laid down that “an order to do complete justice…must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws”. The seven-judge Bench in A R Antulay (1988) upheld Prem Chand Garg.

In the Bhopal gas tragedy case (Union Carbide Corporation vs Union of India, 1991) the SC underlined the wide scope of Article 142(1), which confers power “at an entirely different level and of a different quality”.

Explained | Bhopal Gas Tragedy: Why the Supreme Court dismissed Centre’s curative petition for more compensation

The present case was originally filed in 2014, where the parties sought a divorce under Article 142. While granting divorce to the parties, the SC said it can depart from procedure as well as existing substantive laws only if the decision to exercise the power under Article 142(1) is “based on considerations of fundamental general and specific public policy”.

The fundamental general conditions of public policy refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution; specific public policy was defined by the court to mean “some express pre-eminent prohibition in any substantive law, and not stipulations and requirements to a particular statutory scheme”.

“Irretrievable breakdown”

What factors can courts consider while deciding if a marriage has irretrievably broken down? During the pendency of the case last year, the court said that it would determine what rules should be followed while dissolving marriages directly under Article 142 of the Constitution.

The first and most “obvious” condition is that 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”.

The court laid down the following factors:

*the period of time that the parties had cohabited after marriage;

*when the parties had last cohabited;

*nature of allegations made by the parties against each other and their family members;

*orders passed in the legal proceedings from time to time;

*cumulative impact on the personal relationship;

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*whether, and how many attempts were made to settle the disputes by a court or through mediation, and when the last attempt was made.

The court also noted that the period of separation should be sufficiently long, and “anything above six years or more will be a relevant factor”.

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It emphasised the need to evaluate the factors according to the economic and social status of the parties, including their educational qualifications; whether they have any children; their age; and whether the spouse and children are dependents.

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