SC’s Power to Grant Divorce Day #2: Sr. Adv Dushyant Dave Argued That SC Cannot Hear Cases Specifically Allotted to Other Courts

On September 29th, 2022, a Bench led by Justice S.K. Kaul reserved Judgment in the case to decide if Article 142 of the Constitution allows the Supreme to decide matrimonial disputes in case of irretrievable breakdown of marriage (IBM). The court heard amicus curiae and Senior Advocates Indira Jaising, V. Giri and Dushyant Dave. Senior Advocate Kapil Sibal appeared for an intervenor and made brief submissions. 

While Ms. Jaising and Mr. Giri argued that the court must use Article 142 to grant divorce in case of IBM, Mr. Dave argued that the court cannot usurp Family Court’s jurisdiction which is specifically provided in law. 

What Is The Case About?

Section 13 B of the Hindu Marriage Act, 1955 (HMA), provides the procedure to obtain a divorce 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 often 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. In this case the Bench will decide 

1. What rules should the Court follow under Article 142 to dissolve a marriage between  consenting partners, without referring them back 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. Jaising: Right To Marry And Divorce Are Fundamental Rights

Continuing her arguments from yesterday, Ms. Jaising submitted that the right to marry is a fundamental right, which is covered under the right to form affiliations. As a consequence, she argued that the Court must extend the same logic to recognise the right to divorce. If a person has the right to enter into a marriage, she said they have the right to exit from the marriage. 

While noting that Article 142 cannot be used to pass orders contrary to law, Ms. Jaising argued ‘irretrievable breakdown of marriage’ (IBM) is a consequence of something that might have happened during the marriage. Hence it can be inferred as a ground for divorce under the HMA, and divorce on this basis would not be contrary to any law.

To decide whether there has been an IBM, Ms. Jaising suggested that the courts must attempt reconciliation between the parties. If the reconciliation fails, the courts must come to the conclusion that the two people cannot live together. She argued that it is in public interest to dissolve a marriage when there is an irretrievable breakdown, so that the parties can move on with their lives. 

She referred to the Supreme Court’s Judgment in Naveen Kohli v Neelu Kohli (2006) to argue that divorce should sometimes be seen as a solution to a difficult situation. She argued that in IBM cases, the Court should stop focusing on the ‘fault theory’ where one spouse is seen as more responsible for the breakdown of the marriage. Instead, in IBM cases divorce should be granted no matter who is at fault. Denying divorce should be restricted to situations where reconciliation between the parties is successful according to Ms. Jaising. 

She referred to the Supreme Court’s Judgment in Bhagat v Bhagat (1993) to argue that the word cruelty, as contemplated in law, must be used liberally to determine irretrievable breakdown of marriage (IBM). 

Ms. Jaising referred to a variety of international laws to argue that the concept of no-fault divorce gaining recognition globally and it should be introduced in the Indian context.

Mr. Giri: Using Article 142 To Grant Divorce Does Not Violate Party’s Rights

Mr. Giri, argued that there are two exceptions to the Court using Article 142. First, it must not violate anybody’s fundamental rights. Second, it should not be contrary to any law. According to him, using Article 142 to grant divorce will not violate the fundamental rights of the parties involved and will not be contrary to any law. 

Even though Section 13 of the Hindu Marriage Act does not mention IBM as a ground for divorce, Mr. Giri said it was implied in the provision. He referred to the Supreme Court’s Judgment in Samar Gosh v Jaya Gosh (2007) to argue that staying in an irretrievably broken down marriage, is itself a form of mental cruelty. 

Mr. Giri argued that the Family Court and High Court can dissolve a marriage only if a ground for divorce is specifically mentioned in the petition, however the Supreme Court under Article 142 isn’t restricted to the grounds mentioned. The Supreme Court could look at broad factors such as consent by both the parties to divorce and their failure to reconcile the relationship to dissolve a marriage under Article 142. 

Mr. Dave: Delay In Lower Courts Does Not Justify SC Interference

Sr. Adv. and amicus curiae Dushyant Dave argued that while unreasonable delay in disposal of matrimonial disputes by lower courts is concerning, it does not warrant direct interference by the Supreme Court. He submitted that there are many litigants who might be in need of speedy justice in different kinds of cases, and it would be unreasonable for the Supreme Court  to provide a shortcut to hear matrimonial disputes alone. 

Mr. Dave submitted that Article 142 is not an independent provision, it is connected with Articles 131, 132, 133, 134A, 136, which empowers the SC to hear and decide a variety of cases. However, when a law (like the Hindu Marriage Act) specifically grants the power to hear a case to a particular court (the Family Court), the Supreme Court cannot take over a lower court’s power to hear a case, as that would be contrary to the law in question.  

He argued that the Supreme Court will open ‘Pandora’s box’ if it takes over the jurisdiction of Family Court to hear matrimonial disputes. The Court must assume that  Parliament has given reasonable thought to the provisions of the Act and cannot deviate from the procedure provided. 

Mr. Dave argued that people are hesitant to get married in this day and age because they are apprehensive about separation being a social challenge as divorce proceedings take a long time to finish. He submitted that the delay in proceedings is not because of the law but because of the large population in the country. 

Senior Advocate Kapil Sibal: Aspects Of Maintenance And Custody Should Be Dealt With Separately

Appearing for an intervenor, Mr. Sibal argued that the aspects of maintenance to be paid to a party and the grant of custody of the child from the marriage should be dealt with separately, in order to simplify the proceedings. He said that a person in his prime age will lose a lot of time if they initiate divorce proceedings. However if the two aspects are determined separately, this can be avoided. 

Sr. Adv Meenakshi Arora, argued that when the Supreme Court invokes Article 142, it is only bound by the provisions of the constitution and no other law. Hence, the court could use the provision to grant divorce when there is IBM. 

The Bench, also comprising Justices  Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari, reserved Judgment in the case.