Published on: 25th December 2024
Authored by: Gayatri Sankpal
Vivekanand Education Society’s College of Law
INTRODUCTION
Marriage is a sacred institution that has been practiced in India since time immemorial. In India, the Hindu religion is practiced by the majority. Hence, the common marital legislations used are the Hindu Marriage Act, of 1955[1] and the Special Marriage Act, of 1954[2]. This is also used for divorce when either of the parties is at ‘fault’ on various grounds. However, According to Section 13(1) of the Hindu Marriage Act of 1955, it is not always necessary for one of the spouses to have committed certain matrimonial offenses. Many times, marriages go through an irretrievable breakdown leading to situations where the parties may or may not wish to mutually continue the relationship as married parties.[3] In such scenarios when the marriage shows no prospect or hopes of mending the relationship, it is better to break the marriage between the two individuals and free them from the unnecessary burden of distress and unhappiness. As the irretrievable breakdown is not a ground for divorce as per the legislation the Supreme Court exercises its power under Article 142 of the Constitution to grant a divorce decree in the view of providing ‘complete justice’.
FACTS/ BACKGROUND
The parties to the case, Mrs. Shilpa and Mr. Varun, had been through a long marital dispute which had unnecessarily taken up a lot of time going through various courts for charges relating to violence and cruelty. Aggrieved by this, they filed for a mutual divorce before the Supreme Court under section 13B of the Hindu Marriage Act, 1955 stating that their marriage had irretrievably broken. The Supreme Court invoked its power under Article 142 of the Constitution acknowledging that filing for a divorce through the Family Court would be a lengthy procedure. Firstly, the court appointed an amicus curiae and sent the petition for hearing before a two judge bench. Later on, the case was sent to a longer constitutional bench consisting of Sanjay Kishan Kaul, J., Sanjiv Khanna, J., Vikram Nath, J., Abhay S. Oka, J. and J.K. Maheshwari, J. The hearings before the bench concluded on Sept. 29, 2022, and the judgment was reserved. A unanimous judgment was pronounced on May 1, 2023, by Sanjiv Khanna, J. on behalf of all the judges of the Constitution bench.[4]
ISSUES
- What is this Court’s scope and ambit of power and jurisdiction under Article 142(1) of the Constitution of India?
- Can the court exercise the power under Article 142 by granting a mutual divorce by waiving the statutory period of notice and the procedure under Section 13-B of the Hindu Marriage Act and quash and dispose of other/ connected proceedings?
- Whether this Court can grant a divorce in the exercise of power under Article 142(1) of the Constitution of India when there is a complete and irretrievable breakdown of marriage despite the other spouse opposing the prayer?
JUDGEMENT/ HELD
- What is this Court’s scope and ambit of power and jurisdiction under Article 142(1) of the Constitution of India?
The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.[5] In the case of M. Siddiq v. Mahant Suresh Das and Others[6], the Supreme Court interpreted the ‘necessary for doing complete justice’ stating that the power granted to the highest judicial court is an expansive authority with sweeping influence that provides equitable and just reliefs when the existent law is inadequate to do so.
This power of giving ‘complete justice’ does not interfere with and encroach on the legislation’s powers[7]. Although the power might be vast and unhindered, some restrictive aspects compel the Supreme Court to follow the fundamental considerations of general and specific public policy. The fundamental public policy considerations refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution of India. By exercising this power, justice should be provided in any case in front of the court with integrity and consideration[8].
In Union Carbide Corporation and Others v. Union of India and Others[9], the meaning of “cause of matter” was emphasized explaining that the phrase includes almost every kind of proceedings in court, whether civil or criminal, interlocutory or final, before or after judgment. Statutory prohibitions cannot restrict the powers under Article 142(1) and the Supreme Court can set aside statutory legislation if it hinders “complete justice”.
However, while deciding whether to exercise discretion, the Court must consider the substantive provisions as enacted and not ignore them. As held in the case of Supreme Court Bar Association v. Union of India and Another,[10] this Court cannot supplant the substantive law by building a new edifice where none existed earlier.
The question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy.
- Can the court exercise the power under Article 142 by granting a mutual divorce by waiving the statutory period of notice and the procedure under Section 13-B of the Hindu Marriage Act and quash and dispose of other/ connected proceedings?
Section 13-B (1) of the Hindu Marriage Act states that a decree of divorce may be granted on fulfillment of the following conditions: (a) the parties have been living separately for one year or more before the presentation of the petition; (b) they have not been able to live together; and (c) they have mutually agreed that the marriage should be dissolved.
On filing the first motion, the couple must wait for at least six months and no later than eighteen months before filing the second motion. Then the court will conduct an inquiry and once the averments are proved to be true then the decree of divorce is granted.[11]
The question of law taken up by the court is whether the period of six months can be waived off. To justify this the court stressed upon the legislative meaning behind the clause. The six-month waiting period is designed to give the couple time to introspect and carefully consider their decision to separate. However, in cases of exceptional hardship, where there are years of litigation, emotional suffering, and irreconcilable differences, the cooling-off period only causes misery without any practical benefit. The Supreme Court in the case of Amardeep Singh v. Harveen Kaur,[12] held that the cooling off period can be waived by the court where the proceedings have remained pending for long in the courts, these being cases of exceptional situations. The waiver is not to be given on mere asking but on the court being satisfied beyond doubt that the marriage has shattered beyond repair and the conditions for the same are:-
- How long parties have been married?
- How long litigation is pending?
- How long they have been staying apart?
- Are there any other proceedings between the parties?
- Have the parties attended mediation/ conciliation?
- Have the parties arrived at a genuine settlement that takes care of alimony, custody of the child, or any other pending issues between the parties?
In addition to this, the Supreme Court in the case of Amit Kumar v. Suman Beniwal,[13] held that even after spending the cooling-off period if the parties have moved apart and have mutually agreed to separate, it would be incoherent to ask the parties to move the trial court for the litigation process. It also stated that this Court should ascertain whether the parties have on their own accord, and without any coercion or pressure arrived at a genuine settlement which took care of the alimony, if any, maintenance and custody of children, etc.
Most matrimonial disputes result in a miscellany of cases, including criminal cases, which can be genuine or initiated due to indignation, hurt, anger, or misguided advice. The courts must avoid prolonging the litigation process and ensure amicable solutions to matrimonial matters without pressure, coercion, fraud, or undue influence. Therefore, the Supreme Court in this case held that, based on a settlement between the parties, while passing a decree of divorce by mutual consent, can set aside and quash other proceedings and orders, including criminal cases and First Information Report(s), provided the conditions, as specified in the various judgments, are satisfied.
- Whether this Court can grant a divorce in the exercise of power under Article 142(1) of the Constitution of India when there is a complete and irretrievable breakdown of marriage despite the other spouse opposing the prayer?
In India, divorce[14] is granted if a spouse can prove that the marriage had suffered due to a ‘fault’ or matrimonial offense such as cruelty, desertion, adultery, or conversion to another religion, etc. committed by the other party. However, this process has a lot of drawbacks as it creates an inappropriate atmosphere for discussing personal issues and can drag on for years. Although the Parliament, to improve the stressful process, introduced mutual consent divorce which provided for the application of divorce by both parties after coming to a consensus, there is still no legislation under which a single party can file for a divorce on the ground that the marriage has broken down beyond repair, despite no party being at ‘fault’.[15]
Because of legislation inaction, the Supreme Court had to actively step in to grant divorce through the power granted by Article 142. Though ‘irretrievable breakdown’ is not a ground for divorce under the Hindu Marriage Act, the Supreme Court has considered it an important aspect in specific circumstances[16] that can’t be ignored.
In Ashok Hurra v. Rupa Bipin Zaveri[17], the couple had been living separately for thirteen years. They did not mutually agree to divorce even when the husband had married for the second time and also conceived a child. The Supreme Court held that the marriage was dead in all aspects and that there was no sense in prolonging the inevitable. Hence, the court exercised its power under Article 142 and granted them a divorce.
Similarly, in the case of Munish Kakkar v. Nidhi Kakkar[18]the couple was engaged in multifarious litigations and still opposed to a mutual divorce. The wife had shifted to Canada and was suffering through depression while the husband complained of loneliness and lack of co-habitation, causing him mental and physical torture. The Court held that even after multiple mediation attempts the two had not come to an amicable solution, hence it exercised its power and granted them a divorce to end this broken-down marriage.
Through cases such as Sivasankaran v. Santhimeenal[19], R. Srinivas Kumar v. R. Shametha[20], and the above cases, the Supreme Court observed that consent by both parties was not necessary for the exercise of power under Article 142(1) of the Constitution of India to dissolve the marriage on the ground of irretrievable breakdown. The court gave an affirmative statement stating that the power was discretionary and could only be exercised to do ‘complete justice’ to the parties after being satisfied with the unworkable status of the marriage even if one party is against the divorce.
CONCLUSION
Although the question of using the irretrievable breakdown of marriage as a ground for divorce has been used by the Supreme Court in previous cases under Article 142, this case held that under Article 142 of the Constitution, the Supreme Court may grant a divorce right away if there is “irretrievable breakdown of marriage” it had the sole authority under Article 142 is to uphold justice, equality, and good conscience. The case has once and for all clarified the power of the Supreme Court under Article 142 and emphasized its importance in providing ‘complete justice’. It also declared that during the pending case in the Supreme Court, the other court proceedings can be quashed to reduce the prolongation of the litigation process.
References:
[1] The Hindu Marriage Act, 1955, Act No. 25, Acts of Parliament, 1955.
[2] The Special Marriage Act, of 1954, No.43, Acts of Parliament, 1954.
[3] Indulia, B. and Ridhi (2024) Beyond traditional grounds under Hindu law: Supreme Court’s power to grant divorce on the ground of irretrievable breakdown of marriage, SCC Times. Available at: https://www.scconline.com/blog/post/2024/02/23/beyond-traditional-grounds-hindu-law-supreme-court-power-grant-divorce-ground-of-irretrievable-breakdown-of-marriage/ (Accessed: 29 October 2024).
[4] Batra, N.B.N., 2023. IRRETRIEVABLE BREAKDOWN OF MARRIAGE WITH SPECIAL REFERENCE TO SHILPA SAILESH V VARUN SREENIVASAN CASE. Panjab University Law Review, 62(1), pp.67-80.
[5] INDIA CONST. art. 142, cl. 1.
[6] M. Siddiq v. Mahant Suresh Das and Others, (2020) 1 SCC 1 (India).
[7] I. C. Golak Nath and Others v. State of Punjab and Another, AIR 1967 SC 1643 (India).
[8] Id. at 7.
[9] Union Carbide Corporation and Others v. Union of India and Others, (1991) 4 SCC 584 (India).
[10] Supreme Court Bar Association v. Union of India and Another, (1998) 4 SCC 409 (India).
[11] Hindu Marriage Act, 1955 sec 13-B (2).
[12] Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 (India).
[13] Amit Kumar v. Suman Beniwal, (2021) SCC Online SC 1270 (India).
[14] Hindu Marriage Act, 1955 sec 13(1) (i-a).
[15] Sanyal, D. (2023) Shilpa Sailesh Judgment: A step towards no-fault divorce?, Supreme Court Observer. Available at: https://www.scobserver.in/journal/shilpa-sailesh-judgment-a-step-towards-no-fault-divorce/ (Accessed: 28 October 2024).
[16] V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 (India).
[17] Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226 (India).
[18] Munish Kakkar v. Nidhi Kakkar, (2020) 14 SCC 657 (India).
[19] Sivasankaran v. Santhimeenal, 2021 SCC OnLine SC 702 (India).
[20] R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409 (India).
