New Delhi: The Supreme Court Monday ruled that it can invoke Article 142 of the Constitution to grant a divorce to a couple on the ground of “irretrievable breakdown of marriage”.
A five-judge bench led by Justice Sanjay Kishan Kaul said this would include both situations —where the couple want to part ways from each other through mutual consent as well as where one of the two partners seek divorce on the ground there is irretrievable breakdown of marriage, while the other opposes it. Justices Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari were the other judges on the Constitution Bench.
“It is obvious that this court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established,” the court said, adding that on the basis of settlement between the parties, the apex court can set aside and quash other proceedings and orders, including criminal cases and First Information Reports.
The judgment assumes significance because irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act (HMA) in a case where judicial separation is contested by the one of the partners.
In cases where divorce is sought by both parties through a mutual consent, the HMA prescribes a six-month ‘cooling-off period’ between the filing of two motions—first and second—for divorce. Mutual consent divorce petitions can be moved jointly by the two partners only a year after they have separated. The trial court hearing the matter can proceed with the case only after the second motion for divorce is filed.
However, Monday’s verdict does away with the six-months waiting time between the first and second motion for divorce and holds that the top court can grant judicial separation under Article 142 of the Constitution if it opines that the couple’s marriage is broken irretrievably. However, this discretion has to be exercised on the basis of the factual matrix in a particular case, evaluated on objective criteria and factors.
Article 142 of the Constitution bestows extraordinary powers on the top court and renders it authority to give precedence to equity over law for the purpose of “complete justice” in a matter.
Monday’s verdict is an authoritative pronouncement on the legal question of whether the top court can exercise its jurisdiction under Article 142 in matrimonial disputes.
The top court has in the past intervened under Article 142 in acrimonious matrimonial cases to allow judicial separation under Article 142. However, due to conflicting judgments on the subject, the matter was referred to the Constitution Bench in 2010 on which issues were framed in 2014.
While holding that there is a difference between existence of a power and exercise of that power, the five-judge bench has cast out factors as illustrations to determine irretrievable breakdown of marriage.
It, however, said that either of the two parties cannot directly approach the top court under Article 32 to seek divorce on this ground, as grant of judicial separate on the ground of irretrievable breakdown of marriage by the top court is not a matter of a right, but a discretion to be exercised with “great care and caution” so that “complete justice” is done to both parties.
The bench held it was not feasible to adopt a hyper-technical view in cases where there is irretrievable breakdown of marriage, as it can be counter-productive because pendency itself causes pain, suffering and harassment. It is the court’s duty to ensure that matrimonial matters are amicably resolved to end the agony, affliction and torment.
Article 142 must be contained and regulated
Citing Article 142 of the Indian Constitution, the court said the provision turns the maxim “equity follows the law” on its head. But, like all powers under the Constitution of India, the power under this too “must be contained and regulated”.
Any relief based on equity should not disregard the substantive mandate of law, based on underlying fundamental general and specific issues of public policy. Fundamental general conditions of public policy refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution of India.
Subject to this limitation, the court said, SC can mould the relief under Article 142, in view of the particular facts and circumstances of the case.
“To do ‘complete justice’ is the utmost consideration and guiding spirit of Article 142(1) of the Constitution of India,” the court said.
The expression ‘ends of justice’ refers to the best interest of the public within the four corners of the law, albeit the courts are not empowered to act contrary to the procedure on the particular aspect of law provided in the Civil Procedure Code (CPC) and Criminal Procedure Code (CrPc).
But the CPC and CrPC should not be read as to “limit or otherwise affect the inherent power of the civil court and the High Court” to make an order as is necessary for the ‘ends of justice’, or to prevent abuse of the process of the court.
While this court cannot supplant the substantive law by building a new edifice where none existed earlier, or by ignoring express substantive statutory law provisions, it is a problem-solver in the nebulous areas, the court noted.
Matrimonial litigation leads to multiple cases, cooling-off period breeds misery and pain.
Touching upon the concept and history of mutual consent divorce, the court said that the legislative intent behind incorporating the six-month period between the first and second motion divorce “is that the couple/party must have time to introspect and consider the decision to separate before the second motion is moved.”
But the court opined there are cases of “exceptional hardship,” “where after some years of acrimonious litigation and prolonged suffering, the parties, with a view to have a fresh start, jointly pray to the court to dissolve the marriage, and seek waiver of the need to move the second motion.”
On account of irreconcilable differences, allegations and aspersions made against each other and the family members, and in some cases multiple litigations including criminal cases, continuation of the marital relationship is an impossibility, the court said.
Divorce is inevitable in such situations and the cooling-off period of six months, if at all, breeds misery and pain, without any gain and benefit, the court said. It noted there are cases where the object and purpose behind six-months period, which is to safeguard against hurried and hasty decision, acts as an impediment in a settlement.
“At times, payment of alimony and permanent lump-sum maintenance gets delayed, while anxiety and suspicion remain. Here, the procedure should give way to a larger public and personal interest of the parties in ending the litigation(s), and the pain and sorrow effected, by passing a formal decree of divorce, as de-facto the marriage had ended much earlier,” the court said.
Also Read: SC asks Modi govt to consider granting benefits to same-sex couples without recognising marriage
Past rulings
The Constitution Bench considered judgments delivered in the past in which the top court has passed a decree of divorce, without relegating or asking the parties to move a joint motion before the trial court.
In such cases, SC has also settled ancillary proceedings—both civil and criminal—to settle matrimonial disputes.
“The parties may mutually agree to dissolve the marriage, albeit on many occasions they enter into settlements, often through mediation or on being prompted by the court,” it said, observing in matrimonial matters, settlement, and not litigation, is a preferable mode of dispute resolution.
The court said by exercising its power under Article 142 of the Constitution, the apex court assists and aids the cause of justice. This is because matrimonial disputes lead to multiple legal proceedings. Settlement in even one of them ends all the other related matters.
However, to achieve the same, both parties have to file separate applications in multiple courts for appropriate relief and closure. This, SC said, puts burden on the courts in the form of listing, paper work, compliance and formalities, apart from the litigants bearing the heavy costs.
Factors to be evaluated
Holding that the top court must exercise its “seemingly unhindered” power under Article 142 based on fundamental considerations of general and specific public policy, the Constitution Bench said that a departure from a said procedure is necessary to do “complete justice” between the parties.
Therefore, the court, it added, should first ascertain whether the parties have on their own accord, without any coercion or pressure, arrived at a genuine settlement which took care of the alimony, if any, maintenance and custody of children, etc.
“In our opinion, Section 13-B of the Hindu Marriage Act (mutual consent) does not impose any fetters on the powers of this court to grant a decree of divorce by mutual consent on a joint application, when the substantive conditions of the Section are fulfilled and the court, after referring to the factors mentioned above, is convinced and of the opinion that the decree of divorce should be granted,” the court said.
It outlined some factors that would indicate irretrievable breakdown of marriage, so as to grant divorce between consenting parties. These factors include the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, and their cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc and the period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.
These factors, the court explained, have to be evaluated keeping in mind the economic and social status of the parties and whether they have any children, their age, educational qualification and if the other spouse and children are dependent.
(Edited by Anumeha Saxena)
Also Read: ‘Marriage not an absolute right, even between heterosexual couples,’ Centre tells SC