'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 consideredThe 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 marriageThe 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"BackgroundThe original issue referred to the Constitution Bench was whether the mandatory waiting period for divorce by mutual consent as prescribed under...

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

Manu Sebastian

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