NEW DELHI, May 1:
The Supreme Court held today it has the discretion to dissolve a marriage on the ground of “irretrievable breakdown” in exercise of its plenary power under Article 142 (1) of the Constitution and can grant divorce by mutual consent while dispensing with the 6-month waiting period mandated under the Hindu Marriage Act, 1955.
Article 142 of the Constitution deals with enforcement of decrees and orders of the apex court to do “complete justice” in any matter pending before it. As per Article 142(1), a decree passed or an order made by the apex court is executable throughout the territory of India.
Section 13-B of the Hindu Marriage Act deals with divorce by mutual consent and sub-section (2) to this provision provides, after the first motion has been passed, the parties would have to move the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than 18 months of the first motion.
A five-judge constitution bench headed by Justice S K Kaul said grant of divorce by the apex court on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties.
The bench was dealing with questions, including whether the top court can grant divorce in exercise of power under Article 142(1) of the Constitution when there is complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer.
“This question is also answered in the affirmative, inter alia, holding that this court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown,” said the bench, also comprising Justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari.
“This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified,” it said.
The bench said as a court of equity, the top court is required to balance the circumstances and the background in which the party opposing the dissolution is placed. (PTI)
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