SC can dissolve marriages on grounds of irretrievable breakdown: Constitution Bench

New Delhi: In a significant verdict, the Supreme Court on Monday ruled it can invoke its special powers under Article 142 of the Constitution to dissolve a marriage on the ground of irretrievable breakdown.

Notably, the bench also held that the mandatory waiting period of six months for divorce by mutual consent can be dispensed with subject to the requirements and conditions laid down in the previous judgments.

Article 142 of the Constitution deals with the enforcement of decrees and orders of the apex court to do "complete justice" in any matter pending before it.

"...we have accordingly, in consonance of our findings, held that it is possible for this court to dissolve the marriage on the ground of irretrievable breakdown of marriage. That will not contravene the specific or fundamental principles of public policy," a five-judge Constitution bench headed by Justice S K Kaul said.

The bench comprising justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari, was dealing with more than one set of questions including what could be the broad parameters for the exercise of powers under Article 142 to dissolve a marriage between consenting parties without referring them to the family court to wait for the mandatory period prescribed under section 13-B of the Hindu Marriage Act.

However, during the hearing, the Constitution Bench decided to consider the issue whether marriages could be dissolved on the ground of irretrievable breakdown.

While pronouncing the verdict, the bench said it has never been in doubt or debate that the top court is empowered under Article 142 (1) of the Constitution to do "complete justice".

"... we have held that the period of six months can be dispensed with subject to the requirements and conditions as specified in the two judgements of this court...," Justice Khanna, while pronouncing the verdict on behalf of the bench, said.

The top court had reserved its verdict in the matter on September 29 last year. While hearing arguments, it had observed that social changes take a "little time" and sometimes it was easier to bring a law but difficult to persuade society to change with it.

The bench was also considering whether its sweeping powers under Article 142 are inhibited in any manner in a scenario where a marriage has irretrievably broken down in the opinion of the court but one of the parties is resisting divorce.

Two questions, including whether the exercise of such jurisdiction by the apex court under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case, were earlier referred to a constitution bench.

On September 20 last year, the apex court had said, "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."

Senior Advocates Indira Jaising, Kapil Sibal, V Giri, Dushyant Dave and Meenakshi Arora were appointed as amici curiae in the case. While Jaising argued that irretrievably broken down marriages should be dissolved in exercise of powers under Article 142, Dave presented a contrarian perspective to argue that Courts should not be exercising such a power when Parliament in its wisdom has not recognized such a ground for divorce. Giri argued that irretrievable breakdown of marriage can be broadly construed as a ground of cruelty, which has been judicially interpreted to include mental cruelty. Sibal argued that the procedure for determining maintenance and custody had to be altogether segregated from the divorce proceedings in order to prevent "men and women from losing their lives". Arora contended that the Supreme Court was not bound by statutory law once it activated its extraordinary jurisdiction under Article 142, which she said, embodied the notions of justice, equity and good conscience.

It may also be noted that last week, a two-judge bench had held that irretrievable breakdown of marriage can be construed as the ground of 'cruelty' to dissolve marriages.

(With inputs from Live Law and PTI.)