Granting divorce under Article 142: Review power or overpower of Supreme court

Abstract

Marriages are considered a sacred institution where the people cohabit together and create legal relations. The provision of marriage is mentioned under the established laws related to marriage, for instance, the Hindu Marriage Act 1955. This act also provided the provisions for granting divorce and the procedure for the divorce, which means that a law has already been established by our legislature on these matters. However, the Supreme Court in 2023 expanded this provision of granting divorce through its discretion power under Article 142 of the Indian constitution. The constitutional bench of the Supreme Court delivered their judgment, by granting divorce under the condition of irretrievable breakdown of marriage. This research paper dives into the overview of the decision taken by the constitutional bench and it also brings an insight into the discretionary power of the Supreme Court and the provision of section 13(b) of the Hindu Marriage Act 1955 which talks about one of the grounds of granting divorce.

Keywords

Divorce, Article 142, Section 13(b) of The Hindu Marriage Act, irretrievable breakdown of marriage, constitutional bench

Introduction

Marriage is one of the methods of connecting people of different cultures together and its purpose can be different for different people according to their customs and religious practices. Marriage in Hindus includes various rituals and activities that bind two different people into a single soul. This means that marriage for Hindus is not a mere contract but, to make promise to remain together for seven births. Marriages boost the unity and coherence in society. But does every marriage last for a lifetime? The answer is no. There can be instances where marriages are not successful and the couples end up getting separated at the end. Now if the procedure and purpose of marriage is so profound and pivotal in society, to dissolve the marriage cannot be that cup of tea. This is so because pronouncement is based on a lifetime decision and the conditions of the parties involved. The vital purpose of the judiciary is to serve justice to the people and to protect their rights, for them to live a dignified life. In the case of marriage, the court looks after the matter profoundly by considering the consequences of divorce for both parties. The procedure of divorce for Hindus has been mentioned under the Hindu Marriage Act, of 1955[1]. The act provides the required grounds for divorce. This means that the procedure of divorce has been prescribed under the act along with the time period required for granting the divorce. However, in May 2023, the Supreme Court of India stated that “The divorce can be granted by the Supreme Court under article 142 of the constitution”[2]. This brings to light the power of the judiciary over the legislature. This decision of the Supreme Court fades away the “cooling off” period of six months that is given to a couple seeking divorce, with the intent to save the marriage. The Supreme Court gave various grounds under which this can be done. This decision of the Supreme Court created the supremacy of the power and authority of the Apex Court over other organs. Through this research paper, this decision of supreme court of granting divorce under article 142 of the constitution, are going to show the reason behind this decision and its validity.

Research Methodology

This research paper uses the descriptive analysis of the Supreme Court decision with respect to its precedents and section 13(b) of the Hindu Marriage Act 1955. The research paper includes the primary resources – Constitution, Cases, and Statutes and some secondary resources such as Articles, editorials, and other authentic research papers.

Literature review

The literature review gives a wide perspective of the powers of the Supreme Court relating to the different provisions, that the court finds need to be done, to protect the rights of the people living in the country, by considering the provisions of the established statute. This paper also throws light on the question of whether this decision of the Supreme Court shows the judicial overpower and the supremacy of the judiciary over the legislation. It includes information from the constitution of India, The Hindu marriage act 1955 and editorials of the Hindu newspaper.

Divorce under the Hindu Marriage Act 1955

Divorce has been defined under section 13 of the Hindu Marriage Act

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— 1 [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] (ii) has ceased to be a Hindu by conversion to another religion, or 2 [(iii) has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. (v) has been suffering from venereal disease in a communicable form, or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party has been alive; [3]

The section also gives the grounds on which both spouses can claim divorce- Section 13(1) and Section 12(1-A) and the grounds on which only wives can claim divorce- Section 13(2). Sometimes neither spouse is willing to stay with the other, in that case, they can seek divorce through mutual consent which is mentioned under section 13(b) of the act.

Section 13(b) of the Hindu Marriage Act

Section 13 (b) of the Hindu Marriage Act defines mutual consent where both parties mutually decide on getting a divorce. It is defined as

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

Article 142 of the Indian Constitution

(1) 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, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order1 prescribe.

 (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. [4]

Overview of the decision of the Supreme Court

“A five-judge constitution bench had on May 1 held in Shilpa Shailesh vs Varun Sreenivasan that the grant of divorce on the ground of irretrievable breakdown of the marriage by the Supreme Court is not a matter of right, but a discretion which is to be exercised with great care and caution”[5]. The Supreme Court laid down the provision of granting divorce under Article 142 by fading away the cooling off time period of 6 months that is required for granting a divorce under the circumstances of an irretrievable breakdown of marriage, where the couples are no longer able to live as husband and wife and there is no hope for reconciliation. In this case, the petition was filed in the Supreme Court in 2014 where it was asked to grant divorce without giving them 6 months cooling off period, as there was no chance of cohabitation among them. The Supreme Court laid the guidelines where it mentioned that in case of irretrievable breakdown of marriage, divorce can be granted excluding the cooling off period. There were opinions that this decision of the Supreme Court might bring a burden, as now anyone can come to the Supreme Court asking for divorce. So, to solve this delusion, the Supreme Court gave the following guidelines that need to be kept into consideration for claiming the irretrievable breakdown of marriage:

·        The time period the parties had cohabited.

·        The orders passed in the legal proceedings from time to time.

·        When were the parties last cohabited?

·        Nature of allegations made by the parties against each other and their family members.

·        Accumulative impact on the personal relationship.

·        The number of attempts that were made to settle the dispute by the intervention of a court or through mediation.

·        When was the last attempt made, etc. [6]

These were some of the factors that were stated by the Supreme Court that shall be taken into consideration if any party wants to file a divorce to the Supreme Court under Article 142 of the Indian Constitution. There are various judgments on the matter of granting a divorce, in one of the judgments, the Kerala High Court held that the “waiting period after presentation of joint application prescribed under section 13-B (2) of the act could not be waived by the court either on its own motion or on the application of the parties”[7]. As changes in society bring various challenges to the people living in those surroundings, the Apex Court also faced this challenge and after properly reviewing the condition, the court came to this conclusion.

Suggestion

This decision throws a light on the power of the judiciary over the statutes in order to protect the rights of the people and it also shows a glimpse of the consequences of change in society. Where the Supreme Court makes sure that the dignified life of the people is not hampered. And the change and advancement in society bring the alteration in the society and related things around it. Earlier it was considered that this cooling-off period might not bring the marriage to an end, but, with the span of time, it was considered as a hurdle for a person’s dignified life. The Supreme Court while doing so kept in mind that its misuse shall not be done, therefore, it gave draconian guidelines that are required to be fulfilled for the same. This decision of the Supreme Court does show the overpowering of the judiciary but at the same time, it is the duty of the judiciary to protect the rights of the people living in the country and in doing so, if such steps have been taken it cannot be considered as an overpowering of supreme court over other institutions.

Conclusion

A stronger judiciary in a country helps in maintaining internal peace and security. An independent judiciary in India expresses the optimism that a country can run smoothly for years without facing internal aggression or a coup. The amendments and alterations in the provisions of various laws and statutes show that the judiciary keeps the present situations in consideration rather than sticking to the established laws. The continuous change and progress in society need changes in the laws of the society to make stability in the country and the judiciary plays a pivotal role in doing so. The judgment is an example of the same and through this judgment, it also shows that even though a law has been passed, if any alterations are needed, the judiciary can do it with profound examination and without any hurdle.

Name: Mahima Bhardwaj

University: University of Five-Year Law College, University of Rajasthan

Course & Year: BALLB 2nd Year


[1]  Hindu Marriage Act,1955 Section 13(b), No. 25, Acts of Parliament 1955(India).

[2] Shilpa Sailesh v Varun Sreenivasan T.P. (c) no. 1118 of 2014

[3] The Hindu Marriage Act, 1955 Section 13 (1), No.25, Acts of Parliament 1955 (India)

[4] INDIA CONSTI. Art 142 cl. 2.

[5] The Times Of India, https://timesofindia.indiatimes.com/( last visited Nov. 10, 2023)

[6] SCC online, https://www.scconline.com/ (last visited Nov. 13, 2023)

[7] Krishna Preetha v. Jayan Moorakkanatt, 2010(91) AIC 632 (Ker.)

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