Supreme Court can grant divorce using Article 142 powers on irretrievable breakdown of marriage: Constitution Bench

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The Supreme Court on Monday held that it can exercise its plenary powers under Article 142 of the Constitution to grant a decree of divorce to consenting parties, in cases of irretrievable breakdown of marriage [Shilpa Sailesh v. Varun Sreenivasan].

A Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari held that the six month period prescribed under the Hindu Marriage Act can be dispensed with.

“Article 142 must be considered in light of the fundamental public policy. It should not contravene a non-derogable function of the Constitution. Court under the power is empowered to do complete justice,” the Bench said while reading the operative part of the judgment.

Pertinently, the Court said that divorces can be granted through such a route even when one of the parties opposes such a decree.

“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. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed”.

The bench, however, upheld precedent that said that High Courts and apex court could not be moved directly by the parties for quashing of marriage.

“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”.

The Court in its judgment outlined some of the factors that can be taken into consideration that would indicate an irretrievable breakdown of marriages, so as to grant divorce between parties under Article 142.

The verdict came in a batch of petitions concerning the use of the top court’s plenary powers to dissolve a marriage between consenting parties without referral to family courts to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act.

Article 142 empowers the apex court to pass decrees and orders which are necessary for “doing complete justice” in any cause or matter pending before it.

The issues involved were whether the Supreme Court could exercise its powers under Article 142 of the Constitution to dissolve a marriage, the broad parameters of such powers and whether the invocation of the said power was allowed in the absence of the mutual consent of the parties.

The case was referred to a five-judge Bench nearly five years ago on June 29, 2016 by a Division Bench of Justices Shiva Kirti Singh and R Banumathi (both retired) in a transfer petition.

After hearing arguments, the Constitution Bench had reserved its judgment on September 29, 2022.

Senior Advocates Indira Jaising, V Giri, Kapil Sibal, Dushyant Dave and Meenakshi Arora had been appointed amici curiae to assist the Court in the matter.

Senior Advocates V Mohana and Jay Savla, and Advocate Amol Chitale also appeared in the matter.

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