Can Marriage Be Dissolved By The Supreme Court In Exercise Of Its Powers Under Article 142? Hearing Concludes, Judgement Reserved

A Constitution Bench of the Supreme Court on Thursday reserved judgment on a batch of petitions raising common questions of law, namely, whether it could exercise its powers under Article 142 to dissolve a marriage, what were the broad parameters to exercise such power, and whether the invocation of such extraordinary powers was allowed in the absence of the mutual consent of the parties. The first two questions were formulated and referred by a Division Bench composed of Chief Justice Ranjan Gogoi and Justice N.V. Ramana (as he then was) in the course of hearing a number of transfer petitions. Although the disputes were conclusively adjudicated, the case was kept alive, as questions of seminal importance had been raised, and in light of "the huge number of requests for exercise of power under Article 142". After being formed, the Constitution Bench noted that it was essential to consider the third question as well. The five-judge Bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari. Senior Advocates Indira Jaising, V. Giri, Kapil Sibal, Dushyant Dave, and Meenakshi Arora had been appointed as amici curiae in this matter. On the day of the last hearing, Jaising had sought to distil the fundamental elements of a marriage in order to make the case that in the absence of those components, the court was required to grant a decree dissolving the "empty shell". Picking up from where she left off, Jaising said that courts could "at best attempt a reconciliation in the public interest", but not force two autonomous people who had voluntarily entered a union to stay together despite their irreconcilable differences. In fact, she argued, public interest demanded the severance of marital ties when a marriage has been wrecked beyond the hope of salvage. In this connection, she also urged that there may be causes for a divorce, but attributing faults to any or both the parties was unnecessary if the courts concluded that the marriage had irretrievably broken down. Therefore, Jaising advocated for the need to depart from the predominant fault theory of divorce. She asserted – "The only reason to reject a petition is if the court has come to the conclusion that it has not irretrievably broken down… Cruelty, desertion, separation, litigation, counter-litigation, these are all proxy indicators of irretrievable breakdown of marriage." Therefore, she argued that a liberal, expansive meaning should be given to Section 13 of the Hindu Marriage Act, 1955 by reading into it, the ground of 'irretrievable breakdown of marriage', which itself was a "compendious term". Jaising also contended that the right to enter a marriage and as an extension, the right to exit such a union, were covered within the right to life and liberty under Article 21. Giri objected to Jaising's proposition that trial courts needed to be empowered to grant divorce decrees on the ground of irretrievable breakdown of divorce. He reminded the Bench that the scope of the present reference was not wide enough to include a determination on that issue. He also said this ground could be implicit in the ground of cruelty, inasmuch as the court had held it to include 'mental cruelty' as well. The High Court and the family court could dissolve a marriage on that ground only if specifically pleaded, Giri submitted, but the Supreme Court could exercise its omnibus powers under Article 142 even in the absence of an allegation pertaining to '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. Dave presented a contrarian perspective. He argued that the apex court was not justified in exercising its powers under Article 142 to dissolve marriages since the Parliament had, in its wisdom, vested the power in district courts and prescribed an appropriate procedure for it. Dave proceeded to lament the death of "family as an institution", claiming it to be the reason for the "breaking up" of the "Western society". The Court also heard the arguments advanced by the counsel for the parties to an appeal by special leave that had been tagged with this matter. Justice Kaul orally pronounced – "Insofar as the decision on merits of SLP is concerned, the matter will have to a Bench of two Judges. But since the judgement of this Constitution Bench would have a ramification on that case, limited to the aspect being debated before us, the parties may be permitted to present." After hearing the submissions made by the counsel, the five-Judge Bench reserved its judgment. Case ...

Can Marriage Be Dissolved By The Supreme Court In Exercise Of Its Powers Under Article 142? Hearing Concludes, Judgement Reserved

Awstika Das

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