SC’s Power to Grant Divorce Day #1: Sr. Adv. Indira Jaising Argued that No Provision Defines Consensual Marriage

On 28th September, 2022, a Constitution Bench headed by Justice Sanjay Kishan Kaul started hearing amicus curiae and Senior Advocate Indira Jaisingh on the extent of Supreme Court’s power under Article 142 to decide matrimonial disputes. 

Ms. Jaisingh argued that matrimonial laws speak of capacity to marry, formality to marry and ways to apply for divorce, but they do not define what marriage is. 

What Is The Issue Involved?

Section 13 B of the Hindu Marriage Act, 1955 (HMA), provides the procedure to obtain a divorce by when both partners consent. They must approach the Family Court to initiate divorce proceedings. However, since divorce proceedings often take a long time to be decided, parties who have settled between themselves approach the Supreme Court to grant them divorce using its powers under Article 142 of the Constitution of India. 

Article 142 enables the Court to issue or pass any  order that it feels is necessary to provide complete justice in a case before it. In this case the Court will decide 

1. What rules should the Court follow under Article 142 to dissolve a marriage between  consenting partners, without referring them to the Family Court?
2. Should Article 142 be used to decide divorce cases at all? If yes, should the decision to exercise the power depend on the facts of each case?
3. What powers does the Supreme Court have under Article 142 when one of the parties does not consent to a divorce?

Ms. Jaisingh: Hindu Marriage Act Does Not Define Consent For Marriage:

Ms. Jaisingh argued that no provision in the Hindu Marriage Act define how to determine if a marriage is consensual. Stating that marriage and divorce are considered a matter of status, she submitted that the courts get involved in granting divorce for this reason since there is a change in the status of a person. 

In order to define marriage, Ms. Jaisingh relied on the Supreme Court’s Judgment in Sivasankaran v Santhimeenal  (2021), wherein the Bench had made some observations on the nature of marriage and the expectations from it. She strongly disagreed with the concept of marriage being a sacrament, and added that it is the public policy in India that marriages are not broken by the court without attempting a reconciliation between parties. Ms. Jaisingh argued that public policy and theories that do not accept ‘irretrievable breakdown of marriage’ as a ground for divorce should not be considered.

The Bench comprising Justices S.K. Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari will continue hearing Ms. Jaisingh’s submissions tomorrow.