Marriages made in heaven seem no longer the norm considering the rapidly increasing number of divorce petitions being filed in Family Courts. The Family Courts in some states are most burdened with a huge number of cases pending and new cases being filed daily.
While some divorces are mutually agreed upon, there are cases where one party refuses to end the marriage despite its irretrievable breakdown, leading to long-drawn and often bitter litigation. Irretrievable breakdown of marriage is not a ground for seeking divorce under the Hindu Marriage Act of 1955. The Supreme Court has often brought an end to such litigations by exercising its inherent powers under Article 142 of the Constitution and dissolving such marriages which have irretrievably broken down. However, whether the inherent powers should be and can be exercised by the Supreme Court was considered in various cases and there were varying opinions of different benches of the Hon’ble Supreme Court.
In a recent landmark case, a Constitution Bench of the Hon’ble Supreme Court has put a quietus to this question of law thereby settling the long-standing question.
The Constitution Bench of the Supreme Court in the instant case was considered a reference on this issue. It was argued that the court should not exercise its authority under Article 142 if Parliament has not recognised the grounds for divorce.
It was also contended that the judiciary should not surpass the principle of separation of powers and instead adhere to the laws enacted by the legislature to ensure complete justice without undermining legislative authority by invoking Article 142.
However, to evaluate such cases, the Hon’ble Supreme Court considered various factors beyond procedural and substantive law, including the duration of cohabitation after marriage, the last time the parties lived together, the nature of allegations made by the parties, attempts to reconcile, and a sufficiently long period of separation. These parameters guide the court in making decisions beyond conventional legal boundaries.
The phrase ‘complete justice’ in Article 142(1) encompasses both particular and general equity, and here the court applied the former and held; ’cause or matter’ in Article 142(1) encompasses a broad range of proceedings.
1. Whether the six-month cooling off period u/S 13B (2) of the Hindu Marriage Act, 1955, can be waived off applying Article 142 of the Constitution?
The Hon’ble Supreme Court, while deciding on waiving off the six- months cooling off period generally given to the estranged couple, laid down that the apex court can waive the six months under Section 13-B (2) and the statutory period of one year under Section 13-B (1). Provided the same is over before the first motion and mediation/conciliation, including efforts as per Order 32-A Rule 3 under CPC and Section 23(2) of the Hindu Marriage Act and Section 9 of the Family Courts Act, have failed.
The Hon’ble Bench was of the view that the cooling-off period is an impediment in instances where there is an ‘irretrievable breakdown of marriage’. It reiterated the law laid down in Amardeep Singh v. Harveen Kaur to conclude that this period is discretionary and may be waived by the Court on a case-to-case basis.
The Hon’ble Supreme Court also emphasised the fact that the requirement of the second motion after the cooling-off period can cause unnecessary delay and prolong the process (especially in cases where the parties have already made up their minds and have no intention of reconciling), cause emotional distress, financial burden, exceptional hardship where the parties have been involved in acrimonious litigation or multiple proceedings, leading to delays and increased costs and complexing the dispute.
To address these concerns, the Hon’ble Supreme Court, in certain cases, can waive the cooling-off period, granting a divorce decree.
2. Whether ‘irretrievable breakdown of marriage’ can be a ground for divorce?
It is to be noted that the Supreme Court holds extraordinary jurisdiction under Article 142 and is not bound by statutory law. If there is no explicit provision in the law for the irretrievable breakdown of marriage, the Court can still grant a divorce if it is necessary in the interest of justice, equity, and good conscience. There is still no codified law for the irretrievable breakdown of marriage.
It is pertinent to note that the Law Commission of India, in its 1978 and 2009 reports, recommended adding irretrievable breakdown as an additional ground for divorce.
3. Whether the Supreme Court can grant a divorce under Article 142(1) of the Constitution, even if one of the spouses opposes the divorce, in cases where the marriage is irretrievably broken down?
In the present case, the 5-judge bench highlighted the need for the court to move away from ‘fault theory’ and ‘accusatorial principle of divorce’ under Section 13(1) of the Act.
Article 142 of the Constitution of India states the powers of the Supreme Court to exercise its jurisdiction for doing complete justice in any pending cause or matter and pass any decree or order in the interest of justice. The court shall rely on justice, equity, and good conscience, and it has the authority to deviate from both procedural and substantive laws to uphold fundamental general and specific public policies. The Court held that the objective of Article 142 is to do complete justice without being bound by the rules of procedure.
The Hon’ble Bench held that procedural requirements do not bind the court, and it can grant the decree even when the main case is pending before any family court in India.
The court can quash and dispose of other connected proceedings under Domestic Violence Act, 2005; Section 125 of the CrPC, 1973; Section 498-A of the Indian Penal Code (IPC). The underlying duty to do ‘complete justice’ remains, irrespective of the fact that the proceedings pertaining to the case are active before any judicial forum. It held that the question of ‘lack of jurisdiction’ would not arise in such matters. Conclusively, the Court essentially read down the precedents that had refused the application of Article 142 to grant a divorce decree in cases of irretrievable breakdown of marriage.
It underscored the expansive and fluid powers of the Court and held that it did have the power to pass a decree to grant a divorce by mutual consent and to squash any allied proceedings.
However, it is interesting to note that the Hon’ble Supreme Court also warned parties seeking a divorce, against filing writ petitions under Article 32 to pursue their objective.
AKP Analysis- Future of Divorce Proceedings in India
The decision in the present case clarifies the power of the Hon’ble Supreme Court to put an end to the marriage and all allied proceedings in cases of irretrievable breakdown of marriage. The Supreme Court can not only grant a divorce decree but also dismiss other related proceedings, such as criminal cases, in various forums. This decision frees the divorce process from the “fault theory” and allows parties to seek a waiver of the waiting period if reconciliation is impossible/improbable. However, approaching the Supreme Court for divorce based on irretrievable breakdown is not an automatic right but a discretionary power based on specific parameters. The decision emphasises that a significant separation period is necessary before approaching the Supreme Court. While the decision simplifies divorce litigation, it clarifies that writ petitions under Articles 32 and 226 of the Constitution cannot be used for the same purpose.
Overall, this decision provides a robust legal recourse and precedent in cases of irretrievable breakdown of marriage, where the parties have been contesting long-drawn matrimonial proceedings and seeking a conclusive end to the dispute.
Authored by our Disputes Resolution Partner Mr Shreyas Mehrotra and Associate Darshana Paltanwale.
1 – Article 142 reads as Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.—(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order1 prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
Article 142 provides a unique and inherent power to the Supreme Court to do “complete justice” between the parties, where, at times, the law or statute may not provide a remedy. In those situations, the Court can extend itself to put an end to a dispute in a manner that would fit the facts of the case.
2 – (2017) 8 SCC 746
