TNI Bureau, New Delhi: The Supreme Court of India has ruled that it can dissolve marriages on the grounds of “irretrievable breakdown of marriage” using special powers under Article 142. In addition, the mandatory waiting period of six months for divorce through mutual consent can be waived subject to certain conditions. The Constitution Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari has also identified factors that can determine when a marriage has irretrievably broken down. The bench has also laid out how to balance out equities, particularly with regard to maintenance, alimony, and the rights of children.
Previously, a court granted a “cooling-off” period of six months to a couple seeking a divorce, with the aim of saving the marriage. After the end of six months, the couple may decide to reunite or proceed with a divorce. However, the Supreme Court has said that the period of six months can be dispensed with if certain requirements and conditions are met.
The court clarified that a party cannot directly approach the Supreme Court and seek relief of dissolution of marriage on the ground of irretrievable breakdown of marriage. The reason is that the remedy for 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 original issue referred to the Constitution Bench was whether the mandatory waiting period for divorce by mutual consent, as prescribed under Section 13B of the Hindu Marriage Act, could be waived by the Supreme Court, exercising its vast powers under Article 142, in order to dissolve broken-down marriages between consenting couples without referring them to family courts for protracted judicial proceedings to get the decree of separation. However, during the hearing, the Constitution Bench decided to consider the issue of whether marriages could be dissolved on the ground of irretrievable breakdown.
Article 142 of the Constitution deals with the enforcement of decrees and orders of the top court to do “complete justice” in any matter pending before it.
The case was referred to a five-judge bench seven years ago by a Division Bench of Justices Shiva Kirti Singh and R Banumathi (both retired) in a transfer petition. After hearing arguments, the Constitution Bench reserved its judgment on September 29, 2022.