Big SC Order on Divorces: Court Says It Can Dissolve a Marriage On Ground of ‘Irretrievable Breakdown’


MAY 1, 2023

The Indian Supreme Court on Monday ruled that a marriage can be dissolved on the ground of “irretrievable breakdown” of the relationship. The apex court has stated that it can exercise its special power under Article 143 of the Constitution to waive the mandatory waiting period of six months for divorce by mutual consent, subject to certain conditions.

A five-judge Constitution bench comprising Justices SK Kaul, Sanjiv Khanna, A S Oka, Vikram Nath, and J K Maheshwari pronounced the judgment, stating the six-month waiting period prescribed under the Hindu Marriage Act can be waived.

The top court issued its ruling on a group of petitions concerning its broad authority under Article 142 of the Constitution to dissolve marriages that have irretrievably broken down without requiring the parties to go through lengthy legal proceedings in family courts to obtain a separation decree.

The apex court had concluded the hearing on September 29, 2022, and reserved their decision.

While reserving its order, the court recognized that societal changes may take some time and that implementing new laws could be easier than persuading society to adopt them. The top court also acknowledged the significant role of families in marriages in India.

What Does the Law Say?

Article 142 of the Constitution pertains to the implementation of the Supreme Court’s verdicts and rulings in order to deliver “complete justice” in any ongoing case.

The Supreme Court deliberated on whether its extensive authority under Article 142 is constrained in situations where a marriage is deemed to have irreparably broken down by the court, but one of the parties is unwilling to consent to a divorce.

Previously, the constitutional bench was tasked with addressing two questions: whether the exercise of jurisdiction by the Supreme Court under Article 142 should be altogether avoided, or if the exercise of such authority should be evaluated on a case-by-case basis.

The other question pertained to the general guidelines for utilizing the authority under Article 142 of the Constitution to dissolve a marriage between willing parties without directing them to the family court to comply with the mandatory waiting period specified in Section 13-B of the Hindu Marriage Act.

“We do believe that another question which would require consideration would be whether the power under Article 142 of the Constitution of India is inhibited in any manner in a scenario where there is an irretrievable breakdown of marriage in the opinion of the court but one of the parties is not consenting to the terms,” the apex court had said on September 20.

For over two decades, the Supreme Court has used its broad powers under Article 142 to dissolve marriages that are deemed to be irretrievably broken. However, in September of last year, the court had decided to review whether it can dissolve marriages between separated couples without the consent of both parties.

Courtesy/Source: News18 / PTI