SC says it can end wait for consensual divorce

SC says it can use its extraordinary power under Article 142 of the Constitution to grant divorce on ground of irretrievable breakdown of marriage if separation is inevitable and damage irreparable

The Supreme Court on Monday held that its extraordinary discretion under Article 142 of the Constitution can be used to do “complete justice” for couples trapped in bitter marriages by granting them divorce by mutual consent, sparing them the “misery” of waiting for six to 18 months for a local court to declare the annulment final.

A Constitution Bench, headed by Justice Sanjay Kishan Kaul, observed that the same extraordinary power could be used by the court to quash pending criminal or legal proceedings, be it over domestic violence or dowry, against the man or woman. This would wipe the slate clean and help them start afresh their separate lives.

The judgment on five petitions including the lead one filed by Shilpa Sailesh in 2014, authored by Justice Sanjiv Khanna for the Constitution Bench, further observed the way the entire law of divorce was built predominantly on “assigning fault” on one or the other partner. Such an approach fails to serve broken marriages, the court noted. “If a marriage is wrecked beyond hope of salvage, public interest lies in recognising this real fact,” Justice Khanna reasoned.

Taking this logic forward, the Bench held that the Supreme Court could also use Article 142 to grant divorce on the ground of “irretrievable breakdown of marriage” if the “separation is inevitable and the damage is irreparable”. The judgment is significant as irretrievable breakdown of marriage is not yet a ground for divorce under the Hindu Marriage Act.

However, the judgment cautioned that grant of divorce by the Supreme Court on the ground of irretrievable breakdown of marriage was “not a matter of right, but a discretion which is to be exercised with great care and caution”. The court said the facts established must show that “the marriage has completely failed and there is no possibility that the parties will cohabit together”.

Continued onPage 10