Divorce can be granted on ‘grounds of irretrievable breakdown’: Supreme Court

The six-month waiting period has also been “dispensed away with” before grant of divorce by mutual consent

May 01, 2023 11:12 am | Updated 09:38 pm IST - New Delhi

Image for representation purpose only.

Image for representation purpose only. | Photo Credit: Getty Images/iStockphoto

The Supreme Court on May 1 held its extraordinary discretion under Article 142 of the Constitution can be used to do “complete justice” for couples trapped in bitter marriages by granting them divorce by mutual consent, thus sparing them the “misery” of waiting for six to 18 months for a local court to declare the annulment final.

A Constitution Bench headed by Justice Sanjay Kishan Kaul observed that the same extraordinary power could be used by the court to quash pending criminal or legal proceedings, be it domestic violence or dowry, between the couples. This would wipe the slate clean and help them start afresh their separate lives.

The judgment, authored by Justice Khanna for the Constitution Bench, further observed the way the entire law of divorce was built predominantly on “assigning fault” on one or the other partner. Such an approach fails to serve broken marriages, the court noted.

“If a marriage is wrecked beyond hope of salvage, public interest lies in recognising this real fact,” Justice Khanna reasoned.

Taking this logic forward, the Bench held that the Supreme Court could also use Article 142 to grant divorce on the ground of “irretrievable breakdown of marriage” if the “separation is inevitable and the damage is irreparable”. The judgment is significant as irretrievable breakdown of marriage is not yet a ground for divorce under the Hindu Marriage Act.

However, the judgment cautioned that grant of divorce by the Supreme Court on the ground of irretrievable breakdown of marriage was “not a matter of right, but a discretion which is to be exercised with great care and caution”. The court said the facts established must show that “the marriage has completely failed and there is no possibility that the parties will cohabit together”.

“The judgment does not mean people can rush straight to the Supreme Court for a quick divorce. It means that the Supreme Court, using great care and caution, can invoke Article 142 to deal with certain cases which come to it by way of transfer petitions or appeals in civil or criminal matrimonial disputes,” senior advocate KV Vishwanathan clarified on the judgment.

Several factors would be considered by the Supreme Court before invoking Article 142 in matrimonial cases.

These include the duration of the marriage, period of litigation, the time they have stayed apart, the nature of the pending cases between the couples, the number of attempts at reconciliation and the court’s satisfaction that the mutual agreement to divorce was not under coercion.

On the aspect of invoking Article 142 to grant divorce by mutual consent, Justice Khanna recounted the long process involved under Section 13-B of the Hindu Marriage Act.

First a couple seeking divorce by mutual consent had to file a joint petition in a local court. In it, they had to claim that they were living separately for a year or more and were unable to live together again. The duo had to then wait for six to 18 months before making a second motion before the same court. This time, they had to confirm their decision to divorce. Following which, the judge would make a formal inquiry before granting them a decree of divorce by mutual consent.

On May 1, Justice Khanna said the “cooling-off period” of six to 18 months was meant as time for couples to introspect.

However, he reasoned that in cases in which divorce was inevitable and the marriage was beyond salvage, a six-month or a year-and-half-long wait would only “breed misery and pain, without any gain and benefit”.

“The Supreme Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution… This court can also, in exercise of power under Article 142(1), quash and set aside other proceedings and orders, including criminal proceedings,” the Constitution Bench held.

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