'Irretrievable Breakdown of Marriage' A Ground To Dissolve Marriage Invoking Article 142 Powers : Supreme Court

In a significant verdict, a Constitution Bench of the Supreme Court on Monday held that it can invoke its special powers under Article 142 of the Constitution of India to grant divorce on the ground of irretrievable breakdown of marriage, which is not yet a statutorily recognised ground.

"We have held that it is possible for this court to dissolve marriage on the ground of irretrievable breakdown of marriage. That will not contravene the specific or fundamental principles of public policy", Justice Sanjiv Khanna orally pronounced the operative portion. Justice Khanna said that the judgment has specified the factors which have to be kept in mind while dissolving marriage on this ground and how to balance out equities, specifically with regard to maintenance, alimony and the rights of the children.

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.

A Constitution Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari pronounced the verdict. The conclusion of the judgment is as follows :

"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. 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".

Grant of divorce on the ground of irretrievable breakdown of marriage 

The judgment clearly stated that grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution.

"This Court should be fully convinced and satisfied that the marriage is totally 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"

Factors to be considered

The Court should consider factors such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. 

The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations.

The Court clarified that it does not want to codify these factors as they are situation-specific and that the above mentioned factors are "illustrative".

Better to legalise divorce in a dead marriage

The judgment observed that "it would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue".

Apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases.

"When the life-like situation is known indubitably, the essence and objective behind section 13(1)(i-a) of the Hindu Marriage Act that no spouse should be subjected to mental cruelty and live in misery and pain is established. These rules of procedure must give way to ‘complete justice’ in a ‘cause or matter’. Fault theory can be diluted by this Court to do ‘complete justice’ in a particular case, without breaching the self-imposed restraint applicable when this Court exercises power under Article 142(1) of the Constitution of India"

Background

The original issue referred to the Constitution Bench was whether the mandatory waiting period for divorce by mutual consent as prescribed under Section 13B of the Hindu Marriage Act could be waived.

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

"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 Constitution Bench recorded in its order passed on September 20, 2022.

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.

The Constitution Bench had reserved the judgment after concluding the hearings on September 29, 2022.

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.

Case : Shilpa Sailesh v. Varun Sreenivasan [TP(C) No. 1118/2014] and other connected matters

Citation : 2023 LiveLaw (SC) 375

Family Law - Irretrievable breakdown of marriage a ground of dissolve marriage invoking powers of the Supreme Court under Article 142 of the Constitution of India-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 - Para 42(iii)

Irretrievable Breakdown of Marriage- Fault theory can be diluted by this Court to do ‘complete justice’ in a particular case, without breaching the self-imposed restraint applicable when this Court exercises power under Article 142(1) of the Constitution of India-Apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases-t would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue - Para 29

Irretrievable Breakdown of Marriage- Illustrative list of factors which are to be considered while granting divorce on this ground- Para 33

Hindu Marriage Act 1955 - Section 13B(2)- Waiting period for mutual consent divorce can be waived by Supreme Court invoking Article 142 powers -this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution-This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.

Constitution of India, 1950 ; Article 32, 226 - The parties should not be permitted to file a writ petition under Article 32 of the Constitution of India, or for that matter under Article 226 of the Constitution of India before the High Court, and seek divorce on the ground of irretrievable breakdown of marriage - Approved view taken in Poonam v. Sumit Tanwar (2010) 4 SCC 460 (Para 41)

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