SC’s Power To Directly Grant Divorce: Judgement in Plain English

Supreme Court’s Power To Directly Grant Divorce

Judges: S.K. Kaul J, A.S. Oka J, Sanjiv Khanna CJI, Vikram Nath J, J.K. Maheshwari J

Advay Vora | 1st May 2023

On May 1st, 2023 a Constitution Bench delivered a unanimous judgment in the Shilpa Sailesh v Varun Sreenivasan case. The Bench held that the Supreme Court can directly grant a divorce on grounds of ‘irretrievable breakdown of marriage’ under Article 142 of the Constitution. 

Background

Article 142 of the Constitution enables the SC to issue or pass any order that it feels is necessary to provide “complete justice” in a case before it. Section 13B of the Hindu Marriage Act, (1955) (HMA) lays down the procedure for divorce if both partners consent to it. The parties must initiate divorce proceedings before a Family Court. However, parties often visit the Supreme Court under Article 142 citing delays by Family Courts.

In 2014, the parties, in this case, moved the SC to grant them divorce as their marriage was ‘irretrievably damaged’—not a ground for divorce under the HMA. In 2015, the SC granted them divorce. The Court however observed that there were many similar petitions pending before it. So, while the divorce was granted, the case was kept pending to decide the following issues:

  1. Can Article 142 be used to decide divorce cases at all? 
  2. If yes, what rules should the Court follow to dissolve a marriage between the consenting parties without referring them to Family Court?

In June 2016, a 2-judge bench of the Supreme Court referred the case to a Constitution Bench. The 5-Judge Bench led by Justice S.K. Kaul delivered the judgement on May 1st, 2023.  

Power of the Supreme Court under Article 142

The Bench stated that the exclusive power granted to the SC under Article 142 is to uphold justice, equity and good conscience. Article 142 is a unique provision that lets the SC do ‘complete justice’ in any ‘cause or matter’. Thus, the SC may go beyond the bounds of procedural and substantive law to achieve the ‘ends of justice’. However, the Bench cautioned that such exercise is expected to be carried out with due restraint. The Bench stated that powers under Article 142 should be exercised responsibly while protecting ‘fundamental general and specific principles’.

Here, the fundamental general conditions of public policy refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution of India. Specific public policy principles should be understood as those expressed in a statute. 

Supreme Court Can Grant Divorce Under Article 142 

Section 13B of the Hindu Marriage Act, 1955 (HMA), lays down the procedure for divorce by mutual consent of both parties. This includes a cooling period of 6-18 months after making a joint application for divorce. If the application is not withdrawn during this period, the concerned court will continue proceedings and grant divorce. The Bench held that under Article 142 the SC is not bound by these procedural requirements and can grant the decree before such period, even when the main case is pending before a Family Court. Further, the SC can also grant divorce on the ground of ‘irretrievable breakdown’ in the interest of justice even if one party opposes it. 

The Bench was of the view that the cooling-off period is an impediment in instances where there is an ‘irretrievable breakdown of marriage’ i.e. where divorce is inevitable. However, they emphasised that the time gap is necessary as it allows the parties to evaluate and reconsider their decision to divorce. The period can only be waived when the Court finds that the marriage is beyond repair. 

Some factors to be considered before determining whether a marriage is irretrievably broken down are: 

  1. Duration of cohabitation after marriage
  2. Last time the parties cohabited
  3. Nature of allegations made by the parties against each other
  4. Attempts to settle disputes between the parties
  5. A sufficiently long period of separation
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