woman, gender equality, concept

Decoding Article 142: Supreme Court’s Ability to Grant Divorce

Abstract

India is the largest democracy in the world and is a developing nation. The thoughts and perceptions of the people are also changing. India has seen considerable changes in the legal world, such as the decriminalisation of adultery, the legalisation of homosexuality, the entitlement of the daughter’s right to property, and transgender rights. Some cases, such as increasing of legal age of marriage for girls to 21 years and same-sex marriage, are pending before the court, which has special significance and can change the socio-legal dynamics of the country. This research paper attempts to discuss a vital topic, which is the the Supreme Court’s power to dissolve a marriage, by using Article 142. The nature and scope of Article 142 and the interpretation of the phrase ‘complete justice’ has been discussed. An attempt has been made to delve into the concepts of divorce in cases of irretrievable breakdown of the marriage with special reference to the Supreme Court’s recent judgement in the case of Shilpa Sailesh v. Varun Sreenivasan (2023). This research aims to understand whether the Supreme Court’s power provided by the Indian Constitution under Article 142 is absolute or limited. It also discusses whether the Supreme Court can intervene in matters related to divorce and break the sacred knot of marriage. In the concluding paragraph, it has been recommended that the court elaborate and demarcate its powers to do complete justice.

Keywords

Article 142, complete justice, discretionary, marriage, divorce

Introduction

“The judicial system is the most expensive machine ever invented for finding out what happened and what to do about it.”

                                                    ~ Irving R. Kaufman

The Judiciary is the organ of the nation which protects the rights of its citizens and provides justice. The concept of justice has been interpreted by many great men from time to time. In the Indian context, ‘justice’ is associated with equity and fairness. The preamble of the Constitution of India secures its citizen social, political and economic justice. The Supreme Court ensures that justice is done to the people of India and they have equal rights. Article 142 of the Constitution gives extraordinary power to the apex court to take up a matter which is pending before it and pass an order or decree as is necessary for doing complete justice. This unique inherent power of the apex court has been invoked in several cases. Sometimes it has been appreciated by many and, at times, criticized. The Supreme Court, in the absence of proper legislation, has invoked Article 142 in appropriate cases. Divorce cases by mutual consent, as provided by the Hindu Marriage Act of 1955, are among such instances in which Supreme Court have used its inherent power. The present research article will explore the scope of Article 142 and the Supreme Court’s authority to grant the divorce in the cases of irretrievable marriage breakdown with particular reference to the recent case of Shilpa Sailesh v. Varun Sreenivasan.

Research Methodology

The nature of this research paper is theoretical and descriptive. Thus, it is qualitative. The researcher has used secondary sources such as journals, web articles, and newspapers for conducting the study with the description of observations made by her. The primary sources such as the statutes and certain provisions of law have been briefly used to highlight the important aspects of the topic.

Review of Literature

The Supreme Court has discretional powers under Article 142 of the Indian Constitution to secure the ends of justice. The court has called on its extraordinary powers in matters of public importance. This article has been used to fill the legislative vacuum, and sometimes it has overridden the law in the interests of justice. Several cases of divorce have been decided by invoking this article. The ‘Doctrine of irretrievable marriage breakdown’ is a judicial construct in adherence to the exercise of Article 142 to grant a divorce to couples who cannot do so due to non-recognition of such a ground under Section 13 of the Hindu Marriage Act, 1955. A recent landmark judgement by the Supreme Court held that it could grant a divorce on the grounds of irretrievable breakdown of marriage via Article 142, even though such a ground has not been statutorily recognised. A 5- Judges constitutional bench comprising of Justices Sanjay Kishan Kaul, A.S. Oka, J.K. Maheshwari and Sanjiv Khanna, while hearing the matter in the case of Shilpa Sailesh v. Varun Sreenivasan, pronounced the following conclusion:

“This Court, in the 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. 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. The Court as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.”[1]

The research has been done with the help of many research articles, blogs, and magazines that address the issue of Article 142 and the Supreme Court’s authority to grant a divorce on basis of irretrievable marriage breakdown. The publications that were referred to for analysis of the given content are discussed below: 

  • International Journal of Law Management and Humanities- In the research paper by Merin Bobby in Volume 4, Issue 2 of this journal, the author argues that there is an arbitrary use of the power under Article 142 as it gives immense power to the Supreme Court to do ‘complete justice’ which differs from case to case.

  • Ilkogretim Online- In the research paper by Prof. Sayalee S. Surjuse, the author has attempted to explain the power of Article 142 with special reference to divorce matters under the Hindu Marriage Act and why it should be circumscribed.

  • LiveLaw- The Amicus Brief submitted by Senior Advocate Indira Jaising to the apex court in the recent landmark case of Shilpa Sailesh v. Varun Sreenivasan was also referred. This document defines the power of the Supreme Court and explains the concept of marriage. It also discusses why it is appropriate to grant a divorce in cases where the marriage is irretrievably broken down with the help of several judicial precedents.
  • SCC Blog- A blog by Apoorva attempts to explain the purpose of the cooling off period under the Hindu Marriage Act in divorce cases and how the judiciary can grant a divorce by waiving this waiting period in cases where the marriage is irreconcilable.

Nature and Scope of Article 142

The Supreme Court observes a three-branched approach while using the powers under Article 142 to do absolute justice, i.e., ‘as per the law’, ‘in the absence of law’ and ‘contrary to law’.[2] Any decision made by the apex court using this article becomes the law for the time being until the Legislature passes any legislation. This ‘judicial legislation’ has similar power to the law enacted by the legislature in the exercise of its legislative power.[3]

There have been various instances where the power of Article 142 has been decided by the apex court itself. In Prem Chand Garg v. Excise Commissioner, U.P., Allahabad, the court held that the order to do complete justice between the parties must not be inconsistent with the fundamental rights guaranteed by Part III of the Constitution.[4] The judgement of this case was reiterated in the case of A.R. Antulay v. R.S. Nayak.[5]

The observation of the Supreme Court in the case of Delhi Judicial Service Association v. State of Gujarat[6] was that there can be no limitation or restriction of power vested to the apex court by the statutory provisions.

“Its power under Article 142 (1) to do complete justice is entirely of a different level and a different quality and that any prohibition or restriction contained in ordinary laws cannot act as a limitation on the Constitutional power of the Supreme Court.”
In the Bhopal gas tragedy case, the Supreme Court awarded compensation to the victims of the tragedy by invoking Article 142 and said that to do ‘complete justice’ it can override the l s.[7]

However, it is self-evident that the Supreme Court in exercising its ‘plenary power’ can neither ignore any substantive statutory provision dealing with the subject[8] nor contravene the same.

Concept of Complete Justice

The phrase ‘complete justice’ in Article 142 remains undefined, and its interpretation is subjective to the facts and circumstances of the case. The term was attempted to be defined in Ashoke Kumar Gupta v. the State of U.P., where the court observed that “The phrase ‘complete justice’ engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity for doing complete justice.”[9]

Not defining ‘complete justice’ may be because the constitution framers wanted to give divine powers to the Supreme Court. The power is absolute and supreme. Both the Parliament and the President cannot make laws or issue orders which are contrary to the decree or order passed by the Supreme Court under Article 142.

What Is Marriage?

Marriage is the legal and social sanction of the union of two individuals who mutually consent to live together as spouses. The statutory laws in India dealing with marriage (such as the Hindu Marriage Act, the Special Marriage Act, the Parsi Marriage and Divorce Act and the Muslim personal laws) lay down the procedure to form marriage and terminate such marriages. Still, none of them defines ‘marriage’. Recently, a Division Bench of the Supreme Court in Sivasankaran vs. Santhimeenal 2021 SCC OnLine SC 702 sought to define ‘marriage’ as follows:

“A marriage is more than a seemingly simple union between two individuals. As a social institution, all marriages have legal, economic, cultural, and religious ramifications. The norms of marriage and the varying degrees of legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms, and religious dictates. Functionally, marriages are seen as a site for the propagation of social and cultural capital as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social prestige. Families are arranged on the idea of a mutual expectation of support and amity which is meant to be experienced and acknowledged amongst its members. Once this amity breaks apart, the results can be highly devastating and stigmatizing. The primary effects of such breakdown are felt especially by women, who may find it hard to guarantee the same degree of social adjustment and support that they enjoyed while they were married.”[10]

From the above paragraph, it is understood that marriage is a sacred union and an emotional bond between couples. It is ascertained that the marriage of two individuals also implies the union of two different families. Their divorce can have a devastating impact on the families and their children. There has been a surge in divorce cases in recent decades. The rising number of cases has led to considerable changes in the marriage laws.

Section 13 of the Hindu Marriage Act, of 1955 deals with divorce and Section 13B specifically deals with divorce by mutual consent. The former deals with divorce in cases of cruelty. The concept of divorce under the Hindu Marriage Act is based on three theories- Fault theory, Mutual Consent theory and Irretrievable breakdown of marriage theory. The Fault theory highlights the point that marriage can be dissolved if either of the spouses commits adultery, cruelty or rape. On the other hand, mutual consent theory deals with the fact that both parties mutually want to end their relationship. Irretrievable breakdown of marriage theory is based on the fact that the marriage has reached a point where the husband and the wife no longer want to stay together and their marital relationship is beyond all possibilities of repair.[11]


Irretrievable breakdown of marriage

The Supreme Court in its recent judgement in the case of Shilpa Shailesh v. Varun Sreenivasan (2023) has held that it has the power to grant a divorce to married couples on grounds of irretrievable breakdown of marriage[12]. The Supreme Court invoked Article 142 and used its discretionary power to dissolve the marriage.

The phrase ‘irretrievable breakdown of marriage’ refers to a legally solemnized marriage which has been broken and cannot be put together. The differences developed between spouses can be due to several factors like desertion, adultery, or any other factor. Apart from the above mentioned factors, differences can also arise because they simply do not want to live together. This is called no-fault divorce. The Constitutional bench through this judgement confirmed that divorce can be granted even if neither of the spouses are accused of cruelty, adultery or desertion. However, the Hindu Marriage Act, of 1955 and the Special Marriage Act, of 1954 are premised on the ‘fault’ or ‘matrimonial offence’ theory for the purpose of divorce.[13]

Section 13B of the Hindu Marriage Act, 1955 grants divorce based on the following:

•          The parties were not living together for one or more years.

•          They have not been able to live together.

• They mutually consented to break the marriage.

Section 13B (2) of the Hindu Marriage Act, 1955, provides that when the parties file a divorce, a waiting period of at least six months and not more than 18 months after the divorce petition to the parties. The purpose is to let the couple reconsider their marriage and attempt reconciliation. Now, the question is whether such a waiting period can be waived by the Honourable Court. The Court has observed that when the couple alleges each other and their families related to several civil and criminal matters, the continuation of marriage becomes impossible owing to the irreconcilable differences in the marital relationship. The cooling-off period in such cases will unnecessarily prolong the already broken marriage or extend the parties’ hardships.[14] 

“The courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end.”[15]

The grant of divorce is not dependent on the volition of the parties but on the Court concluding that the marriage has irretrievably broken down based on the facts and circumstances of the case.[16] In what circumstances the marriage can be dissolved on the ground of irretrievable breakdown of marriage? The Court has not mentioned any concrete factors which should be considered; however, various factors are implied in the judgements of the Court. The Court has considered the following factors:

  1. Time of cohabitation after marriage
  2. Last time the parties cohabited
  3. The nature of accusations made by the parties
  4. Attempts to compromise the disputes between the parties by way of mediation, and the last effort were made so
  5. Separation should be more than six years.

The Court while deciding the case of Shilpa Sailesh v. Varun Sreenivasan (2023) made the following observation:

“This Court should be fully convinced and satisfied that the marriage is 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.”[17]

Judicial Trends in the Supreme Court

There are a series of judgements where the Supreme Court has granted divorce using Article 142. Some of these are:

In Ashok Hurra v. Rupa Bipin Zaveri[18], the couple lived separately for 13 years. The parties wanted a divorce by mutual consent. However, the wife later wanted to withdraw her consent. The Court held that the marriage was dead in emotional and practical terms; thus, delaying the grant of divorce would serve no useful purpose.

In the case of Naveen Kohli v. Neelu Kohli[19], the Supreme Court instructed the Central government to amend the Hindu Marriage Act of 1955 and insert an irretrievable marriage breakdown as a ground for seeking a divorce.

The Court in R. Srinivas Kumar v. R. Shametha [20]and Munish Kakkar v. Nidhi Kakkar[21] held that there is no requirement of consent by both parties for divorce based on irretrievable marriage breakdown. It also provided that the Court can exercise its powers under Article 142(1) of the Indian Constitution.

Suggestions and Conclusion

To ensure that everyone receives full justice, the Supreme Court has been given discretionary power in a considerably larger range than any other article. It may issue any order necessary to ensure justice is carried out, even in situations where existing laws are not applicable, provided that it does not violate any existing statutory provision or the fundamental rights protected by the Indian Constitution. The court cannot disregard the applicability of an existing provision and issue orders that would repeal a statute that already exists. The powers granted by Article 142 are discretionary and extraordinary and hence they should not be used to curry favour or be biased.

The use of such inherent rights in contravention of existing legislative laws cannot be justified or authorised in the name of just filling a void. This process calls into question the legitimacy of the current laws and the fairness of the processes. The supreme court must limit its power because the very nature of the exceptional power requires that it not be used in opposition to any existing constitutional safeguards. This is because the rule of law is an essential part of full justice and should be preserved at all costs.

The Supreme Court cannot ignore the extreme hardships endured by the parties if the legal statutes do not consist of an “irretrievable breakdown” of marriage as a ground. From the cases mentioned earlier, it follows logically that the Supreme Court is well aware that judicial legislation is not a reliable method for introducing new concepts of divorce into the law. In instances where the legislature has been silent, however, judicial law has stepped in to help the people.

Therefore, the researcher asserts that the Apex Court will only break the marital bond in “appropriate cases” when it is certain that the matrimonial bond can’t be revived and thus has jurisdiction under Article 142.

Srijani Mazumder

XIM University, Bhubaneshwar


[1] Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC Online SC 544

[2] Sayalee S.Surjuse, Exercise of inherent power by the Supreme Court of India to do complete justice with special reference to Divorce matters under the Hindu marriage Act – Critical Analysis, 20 Ilkogretim Online – Elementary Education Online 1740, 1741 (2021), https://www.ilkogretim-online.org/fulltext/218-1615629389.pdf

[3] Virendra Kumar, Judicial legislation under Article 142 of the Constitution: A pragmatic prompt for proper legislation by Parliament, 54 JILL 364, 365 (2012), https://www.jstor.org/stable/44782477?casa_token=c9Dl7vaOZYwAAAAA%3AvoMmRP_Yh6CjoloWDHlmCTqK3NjT7big0h8VvH24u6wsi4nJ6D4ZLHBd70RKvVJUGc6E_-JPUZ72fHz9GEshxf4osFjw_u3Hcpwl0Y-dhYbM9cNXEg&seq=2

[4] Prem Chand Garg v. Excise Commissioner, U.P., Allahabad (1963) AIR 996

[5] A.R. Antulay v. R.S. Nayak (1988) AIR 1531

[6] Delhi Judicial Service Association v. State of Gujarat (1991) AIR 2176

[7] Union Carbide Corporation v Union of India (1991) 4 SCC 584

[8] Supreme Court bar Association v. Union of India (1998) 4 SCC 409

[9] Ashok Kumar Gupta v. State of U.P. (1997) SCC 201

[10] Indira Jaising, Amicus brief, Live Law, (May 11, 2023, 10:29 pm) https://www.livelaw.in/pdf_upload/written-submissionfinal-ireetrievable-breakdown-of-marriage-437276.pdf

[11] Devyasini Chakrabarti, Divorce under Hindu Marriage Act, 1955, ipleaders (May 11, 2023, 19.55 pm) https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/

[12] Shilpa Sailesh vs Varun Sreenivasan 2023 SCC Online SC 544

[13]  DRISHTI IAS, https://www.drishtiias.com/daily-updates/daily-news-analysis/sc-allows-divorce-on-irretrievable-breakdown (last visited May 8, 2023, 20:06 pm)

[14] Apoorva, Irretrievable Breakdown of Marriage: Decoding Supreme Court judgement on grant of divorce under Article 142 of Constitution; waiver of 6 month’s cooling off period, SCC Blog (May 11, 2023, 22:09 pm) https://www.scconline.com/blog/post/2023/05/02/supreme-court-article-142-of-indian-constitution-and-irretrievable-breakdown-of-marriage/

[15] Shilpa Sailesh vs Varun Sreenivasan 2023 LiveLaw (SC) 375

https://www.livelaw.in/top-stories/marriage-irretrievably-broken-down-supreme-court-specifies-broad-indicators-227651

[16] 217th Report of Law Commission

[17] Shilpa Sailesh vs Varun Sreenivasan 2023 SCC Online SC 544

[18] Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226

[19] Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, AIR 2006 SC 1675

[20] R. Srinivas Kumar v. R. Shametha,(2019) 9 SCC 409

[21] Munish Kakkar v. Nidhi Kakkar (2020) 14 SCC 657

1 thought on “Decoding Article 142: Supreme Court’s Ability to Grant Divorce”

  1. Pingback: Decoding Article 142: Supreme Court’s Ability to Grant Divorce – Startup Story

Comments are closed.