A Closer Look at the Supreme Court's Verdict on Divorce

The Constitution Bench clarified that the Supreme Court can grant divorce to couples if it is evident that their marriage has irretrievably broken down, bypassing the requirement of referring the parties to a family court. Under Article 142(1) of the Indian Constitution , the Supreme Court can employ its plenary power to ensure “complete justice”.

The Existing Procedure for Divorce under the Hindu Marriage Act

• Section 13B of the Hindu Marriage Act permits “divorce by mutual consent”.
  • A joint petition must be filed by both parties to the marriage in the district court, stating that they have been living separately for a year or more, they are unable to live together, and they mutually agree to dissolve the marriage.
• The legislation includes a six-month waiting period to give the parties an opportunity to reconsider their decision.
• In certain cases, an exemption application can be filed in a family court to waive the six-month waiting period under Section 13B(2).
• However, the process of obtaining a divorce order often becomes protracted and time-consuming due to the large volume of similar cases pending before family courts.

Factors Considered by Courts in Determining Irretrievable Breakdown of Marriage

• The Supreme Court has the authority to establish guidelines for the dissolution of marriages under Article 142 of the Constitution.
• The court must be absolutely convinced that the marriage is completely unworkable, emotionally dead, beyond salvage, and hence, dissolution of the marriage is the only feasible solution.

Decoding Article 142 of the Constitution

• Article 142 empowers the Supreme Court to pass such orders as is necessary for doing “complete justice” in any case or order pending before it.
• This unique power allows the Court to mould the outcome to suit the facts of the case, when the existing laws or statutes are inadequate.

Criticisms of Article 142 and Court's Response

• The concept of “complete justice” is subjective and varies according to the situation, which necessitates checks and balances by the court.
• The court has suggested that the separation period should be sufficiently long, stating that a period of "six years or more will be a relevant factor".
• Critics argue that the wide scope of these powers can lead to allegations of arbitrariness and lack of precision.
• It is also contended that the lack of a standard definition for “complete justice” gives the Court wide discretion, potentially leading to arbitrary exercise or misuse.