In a significant verdict, a Constitution Bench of the Supreme Court on Monday held that it can invoke its special powers under Article 142 of the Constitution of India to grant divorce on the ground of irretrievable breakdown of marriage, which is not yet a statutorily recognised ground.
"We have held that it is possible for this court to dissolve marriage on the ground of irretrievable breakdown of marriage. That will not contravene the specific or fundamental principles of public policy", the Court pronounced. The Court held that it has specified the factors on the basis of which a marriage can be held to be irretrievably broken down and how to balance out equities, specifically with regard to maintenance, alimony and the rights of the children.
Notably, the bench also held that the mandatory waiting period of six months for divorce by mutual consent can be dispensed with subject to the requirements and conditions laid down in the previous judgments.
A Constitution Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari pronounced the verdict. Justice Sanjay Khanna read out the operative portion of the judgment. Detailed copy of the judgment is awaited.
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.
However, during the hearing, the Constitution Bench decided to consider the issue whether marriages could be dissolved on the ground of irretrievable breakdown.
"We do believe that another question which would require consideration would be whether the power under Article 142 of the Constitution of India is inhibited in any manner in a scenario where there is an irretrievable breakdown of marriage in the opinion of the Court but one of the parties is not consenting to the terms", the Constitution Bench recorded in its order passed on September 20, 2022.
Senior Advocates Indira Jaising, Kapil Sibal, V Giri, Dushyant Dave and Meenakshi Arora were appointed as amici curiae in the case. While Jaising argued that irretrievably broken down marriages should be dissolved in exercise of powers under Article 142, Dave presented a contrarian perspective to argue that Courts should not be exercising such a power when Parliament in its wisdom has not recognized such a ground for divorce. Giri argued that irretrievable breakdown of marriage can be broadly construed as a ground of cruelty, which has been judicially interpreted to include mental cruelty. Sibal argued that the procedure for determining maintenance and custody had to be altogether segregated from the divorce proceedings in order to prevent "men and women from losing their lives". Arora contended that the Supreme Court was not bound by statutory law once it activated its extraordinary jurisdiction under Article 142, which she said, embodied the notions of justice, equity and good conscience.
The Constitution Bench had reserved the judgment after concluding the hearings on September 29, 2022.
It may also be noted that last week, a two-judge bench had held that irretrievable breakdown of marriage can be construed as the ground of 'cruelty' to dissolve marriages.
Story to be updated after the judgment is uploaded
Case : Shilpa Sailesh v. Varun Sreenivasan [TP(C) No. 1118/2014] and other connected matters
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