Top Court rules it can directly grant divorce to couples
NEW DELHI : The Supreme Court today ruled it can dissolve a marriage on the ground of “irretrievable breakdown” by exercising a special power. Using the power, the court can grant a divorce by mutual consent while dispensing with the six-month waiting period. A grant of divorce on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion which is to be exercised with great care and caution.
The “cooling off” period of six months can be dispensed with as the object of the time gap is not to stretch the already disintegrated marriage. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein the court is satisfied that the facts show that the marriage has completely failed.
\It can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. The bench also laid out how to balance out equities. We have laid out the factors for this, specifically with regards to maintenance and rights of the children, it said.The apex court on Monday held that it can dissolve marriages on the ground of “irretrievable breakdown of marriage” invoking powers under Article 142 of the Constitution. It further held that the mandatory waiting period of six months for divorce through mutual consent can be done away with, subject to conditions.
Reacting to the verdict, the National Commission for Women (NCW) chairperson said the decision will give a chance to women to move ahead in life. “I welcome the decision. If done with mutual consent, it will give a chance to women to move ahead in their lives and plan their future,” she told PTI. 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. “…we have accordingly, in consonance of our findings, held that it is possible for this court to dissolve the marriage on the ground of irretrievable breakdown of marriage. That will not contravene the specific or fundamental principles of public policy,” a five-judge Constitution bench headed by Justice S K Kaul said.
The bench, also comprising justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari, was dealing with more than one set of questions including what could be the broad parameters for the exercise of powers under Article 142 to dissolve a marriage between consenting parties without referring them to the family court to wait for the mandatory period prescribed under section 13-B of the Hindu Marriage Act.
While pronouncing the verdict, the bench said it has never been in doubt or debate that the top court is empowered under Article 142 (1) of the Constitution to do “complete justice”. “… we have held that the period of six months can be dispensed with subject to the requirements and conditions as specified in the two judgements of this court…,” Justice Khanna, while pronouncing the verdict on behalf of the bench, said. The top court had reserved its verdict in the matter on September 29 last year.
While hearing arguments, it had observed that social changes take a “little time” and sometimes it was easier to bring a law but difficult to persuade society to change with it. On September 20 last year, the apex court had said, “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.”
(Bureau Report with Media Inputs)