The Supreme Court on May 1 held that it can use its extraordinary powers to do “complete justice” under Article 142 of the Constitution and dissolve a marriage on the ground of ‘irretrievable breakdown’ of the union.
Usually, the apex court has to refer the parties back to the family courts concerned for a long wait for a formal decree of separation and divorce.
A Constitution Bench led by Justice Sanjay Kishan Kaul also did away with the six-month mandatory waiting period for couples seeking divorce by mutual consent.
Senior advocate Indira Jaising, one of the lawyers in the case, said marriage laws required sweeping reforms.
While reserving its order, the court had said social changes take time to accomplish, and it was easier to bring a law than persuade society to change with the times.
Pronouncing the operative portion from the unanimous judgment he authored for the five-judge Bench, Justice Sanjiv Khanna said “it is possible for the Supreme Court to dissolve a marriage on the ground of irretrievable breakdown of marriage’ without contravening with the general and specific principles of public policy”.
Justice Khanna said the six-month waiting period has also been “dispensed away with” before grant of divorce by mutual consent.
Article 142 of the Constitution deals with the enforcement of decrees and orders of the apex court to do “complete justice” in any matter pending before it.
The question before the Bench was whether the Supreme Court could use the untrammeled powers given to it under Article 142 to dissolve marriages on the ground of ‘irretrievable breakdown of marriage’ without referring the case back to the family courts.
The court agreed that it cannot exercise its extraordinary powers under Article 142 and ignore valid and lawful procedure. However, in this case, concerning marriage the use of Article 142 would not harm general or specific public policy while giving relief to estranged couples.
Recently, in a separate case, the Supreme Court had held that continuing in a marriage which had broken down irretrievably amounted to cruelty, which was a ground for divorce under the Hindu Marriage Act.
In that judgment, a Bench of Justices Sudhanshu Dhulia and JB Pardiwala had read the ‘irretrievable breakdown of marriage’ into the ground of ‘cruelty’ for divorce under the Act.
“A marriage which has broken down irretrievably, in our opinion, spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13 (1) (ia) of the Act,” Justice Dhulia had observed in the recent judgment.
The court had defined an “irretrievable breakdown of marriage” as a situation in which the husband and wife had been living separately for a considerable period and there was “absolutely no chance of their living together again”.
Irretrievable breakdown of marriage’ by itself is not a ground for divorce under the Act, and hence, the court had interpreted cruelty to include a broken marriage while taking into consideration the plight of a couple forced to live a loveless relationship.
