Article 142 and It's Implication on Marital Disputes
The Constitution of India is the most important law of the country and is a
carefully drafted document that defines the essential framework of the country's
basic principles, structural organization, procedural guidelines, government
powers, institutional responsibilities and rights and responsibilities of
citizens. The Constitution, as the supreme legal force, is entrusted with the
sacred responsibility of ensuring true justice for its entire people.
As a source of legal authority, the Constitution empowers the Parliament as well as the state and union territory legislatures to promulgate statute. However, there are instances where these statutes may fall short in delivering effective justice to the aggrieved parties. Recognizing this potential inadequacy, the Constitution bestows upon the judiciary, specifically under Article 142, the discretionary power to render complete justice in any matter pending before it. This provision ensures that the courts can transcend statutory limitations to address the exigencies of each case, thereby upholding the overarching principle of justice that the Constitution seeks to guarantee.
Article 142 is a provision that empowers the Supreme Court to pass any decree or order to do complete justice in any cases or matter pending before it. It also makes such an order or decree enforceable throughout the territory of India. It allows the Supreme Court to intervene in matters of public interest, human rights, constitutional values, and fundamental rights and to protect them from any violation or infringement. It enhances the Supreme Court's role as the guardian of the constitution and final arbitrator of and as a source of judicial activism and innovation.[1]
The Supreme Court of India possesses unrestricted authority regarding the types of cases in which it can invoke its powers under Article 142. Over the past few decades, this prerogative has been notably exercised in the realm of granting divorce decrees. Despite the existence of legislative statutes designed to adjudicate divorce matters, the court employs Article 142 to ensure complete justice in specific cases where it deems appropriate. Nonetheless, the application of this extraordinary power in divorce proceedings must be approached with utmost diligence and prudence, ensuring that the integrity and principles of justice are meticulously upheld. In case of 'ShilpaSailesh v. VarunSreenivasan'[2] the court stated in that:
' 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. '
As indicated in the aforementioned statement, the court granted a divorce on the grounds of 'irretrievable breakdown of marriage.' This decision is contentious because this specific ground is not mentioned in any existing divorce statutes. It has been established in several cases that, although the Supreme Court's inherent powers under Article 142 of the Constitution of India are extensive, they cannot be used to override the substantive law applicable to the case at hand. This principle is reflected in the case of 'Union Bank of India v. Rajat Infrastructure Pvt. Ltd.'[3] &Ors, where the bench of Justice Aniruddha Bose and Justice Bela M. Trivedi observed that:
' It cannot be again said that the court in exercise of powers under Article 142 cannot ignore any substantive statutory provision dealing with the subject. The plenary powers of the Supreme Court under Article 142 are inherent in nature and are complementary to those powers which are specifically conferred on the court by various statutes. These powers though are of a very wide amplitude to do complete justice between the parties, cannot be used to supplant the substantive law applicable to the cause under consideration of the court,'.
Numerous legal scholars and analysts criticize the court's act of granting divorce by circumventing statutory provisions as judicial overreach and a breach of the doctrine of separation of powers. In this article, we will delve into these and other related objections. Furthermore, we will explore the statutory framework governing divorce in India and examine landmark judgments pertaining to divorce and Article 142. Our discussion will aim to uncover ways to harmonize judicial discretion with the established legal framework, taking into account ethical considerations and the potential future implications of such judicial actions. Through this comprehensive analysis, we hope to illuminate the complexities involved in balancing judicial authority and statutory mandates.
Background: Marriage And Divorce Laws In India
India's endeavor to reconcile traditional customs with contemporary legal principles is evident in the evolution of its marriage and divorce laws. These laws have undergone significant transformation over the years, driven by social movements, legislative reforms, and judicial interpretations. Initially, religious texts and customs served as the primary sources of guidance for marriage and divorce regulations. However, the mid-20th century saw a pivotal shift with the introduction of codified laws, transitioning towards a more uniform legal framework.
The codification of Hindu marriage and divorce laws culminated in the enactment of the Hindu Marriage Act of 1955, marking a watershed moment. This legislation introduced groundbreaking provisions for divorce on grounds such as cruelty, adultery, desertion, and mutual consent. Similarly, the Special Marriage Act of 1954 established a secular framework for marriages between individuals of different religious backgrounds, promoting interfaith unions and providing similar grounds for divorce.
Christians were governed by the Indian Divorce Act of 1869, while Muslims were subject to the Muslim Personal Law (Shariat) Application Act of 1937, which adhered to their personal laws. This legal tapestry reflects India's intricate balance between preserving traditional customs and embracing modern legal standards.
The enforcement of marriage and divorce statutes often encountered challenges, despite the presence of legislative frameworks, particularly in cases where statutory provisions were either ambiguous or insufficient to address specific issues. This is where the transformative role of the Supreme Court of India becomes evident, utilizing its authority under Article 142 of the Constitution. Article 142 empowers the Supreme Court to issue any order or directive necessary to ensure ' complete justice ' in any matter before it.
This provision has been instrumental in bridging statutory gaps to ensure justice in complex marital disputes. The landmark case of 'Gaurav Nagpal v. Sumedha Nagpal'[4] exemplifies the Supreme Court's application of Article 142. In this case, the statutory requirements did not adequately resolve the contentious child custody dispute at hand. By invoking Article 142, the Court emphasized that the child's welfare is paramount and that the child's best interests are of utmost importance. This decision underscored the Court's commitment to delivering comprehensive justice beyond the rigid confines of statutory law and set a precedent for future custody disputes.
The acceleration of divorce proceedings by the Supreme Court has been a pivotal aspect of its exercise of powers under Article 142, especially in cases where marriages have irretrievably broken down. Although well-intentioned, the mandatory cooling-off periods mandated by statutes such as the Hindu Marriage Act, 1955, have compelled parties in irretrievably fractured marriages to endure prolonged distress. Recognizing this hardship, the Supreme Court has, on numerous occasions, granted divorces that bypass these statutory durations. In the case of 'Anil Kumar Jain v. Maya Jain'[5], the Court provided relief to the estranged couple by granting a divorce by mutual consent under Article 142, notwithstanding the fact that the statutory waiting period had not yet lapsed.
The 2016 Supreme Court case, ' Narendra v. K. Meena,[6]' exemplifies the judiciary's proactive stance on addressing domestic abuse. In this landmark decision, the Court exercised its authority under Article 142 to ensure justice in situations where statutory grounds for divorce were ambiguous. The Court granted a divorce on the grounds of mental cruelty, reinforcing its power to interpret and expand the definition of cruelty within the context of marriage. This decision underscores the Court's commitment to ensuring that the legal framework remains responsive and adaptable to evolving societal norms.
Consequently, the interplay between statutory provisions and judicial interpretations has dynamically influenced the evolution of marriage and divorce laws in India. The Supreme Court's interventions under Article 142 have played a crucial role in shaping marital jurisprudence, ensuring that statutory limitations do not obstruct the delivery of justice. These judicial actions have not only addressed the immediate needs of the parties involved but have also set significant precedents likely to influence future cases and legislative reforms.
The Evolution Of Article 142: Judicial Interpretations And Its Impact On Divorce Laws
Does article 142 give the court power to adjudicate divorce matters?
Article 142, frequently referenced for its objective to ensure 'complete justice' to all citizens, remains contentious in terms of its precise definition and scope. This article's authority to override established statutory provisions has been a persistent subject of debate. The concept of 'complete justice' has evolved over time, shaped by various judicial pronouncements that reflect the prevailing societal contexts. Recently, the judiciary has extended its reach beyond the confines of the Hindu Marriage Act, the Criminal Procedure Code, and other statutory frameworks governing divorce to achieve 'complete justice' for the parties involved.
This expansion has sparked considerable scrutiny. Here, we will examine the ambit of Article 142 in the context of divorce cases, analyzing landmark judgments, and incorporating the arguments presented by counsel and the opinions expressed by judges.
Article 142 of the Constitution of India, which gives wide and capacious power to the Supreme Court to do 'complete justice' in any 'cause or matter,' is significant, as the judgment delivered by this court ends the litigation between the parties. Given the expansive amplitude of power under Article 142, the exercise of power must be legitimate and clamors for caution, mindful of the danger that arises from adopting an individualistic approach to the exercise of Constitutional power.
Interpreting Article 142(1) of the Constitution of India in 'M. Siddiq (dead) Through Legal Representatives (Ram Janmabhoomi Temple case) v. Mahant Suresh Das and others'[7]. The constitution bench opined that the phrase 'is necessary for doing complete justice' under Article 142 grants the Supreme Court broad equitable powers, allowing it to address gaps or inadequacies in the strict application of law to achieve just outcomes. This power enables the court to interpret and modify laws liberally and humanely, particularly in unique cases where general laws fall short.
The equitable power under Article 142 thus bridges the gap between general and specific laws, reflecting Professor C.K. Allen's classification of equity into general equity (liberal interpretation of law) and particular equity (modification of law in exceptional cases). Article 142(1) prioritizes equity over strict legal adherence, permitting the court to relax or exempt parties from the rigors of laws based on case-specific circumstances. However, this power must be exercised with caution, ensuring that relief based on equity does not undermine substantive legal mandates or public policy principles.
In the case of 'I.C. GolakNath and Others v. State of Punjab and Another'[8], Chief Justice K. SubbaRao emphasized that the Supreme Court's power under Article 142(1) of the Constitution of India is broad and flexible, allowing the court to develop legal doctrines to achieve justice. The only constraints on this power are reason, restraint, and the avoidance of injustice. Restraint and deference are essential aspects of the Rule of Law and maintain the separation of powers between the legislature, executive, and judiciary.
When the Supreme Court uses its authority under Article 142(1) to do 'complete justice' in a specific case, it does so within the boundaries of the Constitution and does not encroach upon the legislature's role in law making. This power is integral to the Court's decisions and underscores the guiding principle of achieving complete justice.
The idea that a provision in any ordinary law, regardless of the significance of the public policy it supports, can restrict the Supreme Court's powers under Article 142(1) is incorrect and flawed. This was also observed in Union Carbide Corporation and Others v. Union of India and Others. The court noted that there are misconceptions about the scope of the Supreme Court's powers under Article 142(1) that need clarification. It's incorrect to claim that provisions in ordinary laws, regardless of their public policy importance, can limit the Supreme Court's powers under Article 142(1). In the Garg and Antulay cases, the main issue was the violation of constitutional rights, not statutory inconsistencies.
The Court's power under Article 142 to quash criminal proceedings is not restricted by sections 320, 321, or 482 of the CrPC. These powers are of a higher order and quality, and ordinary law provisions cannot limit them. While statutory prohibitions should be considered in light of fundamental public policy when exercising Article 142 powers, they do not override constitutional provisions. Thus, the Supreme Court must consider these prohibitions to determine what constitutes 'complete justice,' but this does not imply a lack of jurisdiction or nullity.
The evolution of judicial interpretation of Article 142 can be categorized into three distinct phases. The first phase, lasting until the late 1980s, is marked by the rulings in Prem Chand Garg and A.R. Antulay, which stated that directions issued by the Court should not conflict with or violate specific statutory provisions and should only deviate from procedural rules. Additionally, these directions must not infringe upon individuals' Fundamental Rights, a principle that has remained undisputed through subsequent phases.
The second phase is rooted in the decision of the 11-Judge Constitution Bench in I.C. GolakNath, which introduced the doctrine of prospective overruling. This judgment established that Articles 32, 141, and 142 are framed in broad and flexible terms, allowing the Court to develop legal doctrines aimed at achieving justice, with the sole constraints being reason, restraint, and avoidance of injustice. In the case of the Delhi Judicial Service Association, the Court reiterated that any prohibitions or restrictions in ordinary laws cannot limit the Court's constitutional power to issue orders or directions to ensure 'complete justice' in any case.
The third phase, characterized by a more measured approach, originated with the Union Carbide Corporation ruling. This decision emphasized that while exercising powers under Article 142 and determining what constitutes 'complete justice' in a case, the Court should consider express prohibitions in substantive statutory provisions that are based on fundamental principles of public policy, thereby guiding the exercise of its power and discretion. The judgment in the Supreme Court Bar Association case further argued that the Court, under Article 142(1), has the authority to achieve 'complete justice' without adhering strictly to procedural provisions if it deems such departure necessary to ensure justice between the parties.
The essential point to remember when exercising powers under Article 142 is that as long as the 'complete justice' required by the 'cause or matter' is achieved without violating fundamental principles of general or specific public policy, the exercise of power and discretion under Article 142(1) is valid and constitutional. This is why the power under Article 142(1) of the Constitution of India remains undefined and uncatalogued, ensuring the flexibility to tailor relief to suit specific situations. The fact that this power is vested solely in the Supreme Court provides assurance that it will be exercised with due restraint and careful consideration.
Bypassing 'Cooling Off Period'
After examining the scope of powers under Article 142 and clearly understanding the concept of 'complete justice,' it can be conclusively established that the Supreme Court has the authority to adjudicate any matter, including divorce cases, while exercising its powers under Article 142 to ensure complete justice. The Court has addressed several crucial questions regarding divorce, with some rulings being landmark decisions that can serve as a guiding force for amending divorce-related legislation.
One such matter concerns the waiting period or 'cooling off period.' According to Section 13-B of the Hindu Marriage Act, after submitting the first motion for divorce by mutual consent, the parties are required to wait for a minimum of six months and a maximum of 18 months before filing the second motion. This 'cooling off period' is stipulated by the legislature to afford the parties an opportunity for introspection and to reconsider their decision to separate by divorce.
The question that was put before the court was that 'Whether, upon settlement, the court can dissolve a marriage by mutual consent, bypassing procedural requirements in Section 13-B of the Hindu Marriage Act?'
In the case of ShilpaSailesh vs. VarunSreenivasan, a Constitution Bench of the Supreme Court has decided that it can utilize its special authority under Article 142 of the Constitution of India to waive the mandatory waiting period of 6 to 18 months required for seeking divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. The 5-judge bench, including Justices Sanjay KishanKaul, Sanjiv Khanna, AS Oka, VikramNath, and JK Maheshwari, held that the Supreme Court has the power under Article 142(1) to grant a decree of divorce by mutual consent, bypassing the specified period and procedure outlined in Section 13-B of the Hindu Marriage Act.
As per Section 13-B of the Hindu Marriage Act, after filing the first motion seeking divorce through mutual consent, the parties have to wait for a minimum of six months and a maximum of 18 months before moving the second motion. However, this mandate for waiting periods was found to be causing hardships in certain cases. In 2017, a two-judge bench of the Court in 'Amardeep Singh v. Harveen Kaur'[9] held that the six months waiting period as prescribed under Section 13B(2) of the HMA is not mandatory and that the same can be waived by the Family Court in exceptional circumstances.
The Constitution Bench noted that in Amardeep Singh, certain factors were mentioned which will warrant the waiving of the waiting period:
The two-judge bench in Amardeep Singh further held that the Court should consider the following questions:
In conclusion regarding this matter in ShilpaShailesh, the bench stated that:
'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, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and set aside other proceedings and orders, including criminal proceedings'.
Dissolution Of Marriage On Ground Of 'Irretrievable Breakdown Of Marriage'
In a significant verdict, a Constitution Bench of the Supreme Court in case of ShilpaSailesh vs. VarunSreenivasan 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 SanjivKhanna orally pronounced the operative portion. Justice Khanna noted that the judgment outlines the factors to be considered when dissolving a marriage on this ground and explains how to balance equities, particularly concerning maintenance, alimony, and the rights of the children. While dictating the judgement in the same case the court said:
'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'.
It is firmly asserted in the judgment that grant of divorce on irretrievable breakdown of marriage by the Supreme Court is not a matter of right, but a matter of discretion and must be exercised with great care and caution. This highlights the importance of judicial prudence and ensures that each case must be dealt with on its merits. Integrity of the institution of marriage and welfare of the parties involved must be kept in mind while taking in all the factors to deliver justice through a cautious approach, maintaining a fair and balanced legal process.
In line with the above stated the court in ShilpaSailesh also said that '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.'
There are several factors that the court mentioned must be kept in mind while granting divorce. Such factors are: 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 added.
Further, 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'. 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'.
In rare and exceptional matrimonial cases, resolving and adjudicating disputes should not primarily focus on assigning blame or determining which party is more at fault.
'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'
The Supreme Court has at times refrained from invoking its powers under Article 142 to grant divorces on the grounds of 'irretrievable breakdown of marriage' recognizing it as a matter of judicial discretion rather than a right. In the case of 'Dr.Nirmal Singh Panesar v. Mrs.Paramjit Kaur Panesar'[11], the Court rejected the husband's divorce request due to the wife's non-consent. Nevertheless, it reaffirmed the precedent set in ShilpaSailesh that the Court may grant a divorce on this ground even if one spouse opposes. The Court also clarified that, given the Indian cultural perception of marriage as a sacred and spiritual bond, a rigid formula for granting divorce under Article 142 is undesirable.
A bench of Justice Aniruddha Bose and Justice Bela M Trivedi was considering a plea for divorce by a husband aged about 89 years from his wife aged about 82 years. The wife had expressed her desire to continue in the marriage and thus the Court refused to grant divorce.
'..in our opinion, one should not be oblivious to the fact that the institution of marriage occupies an important place and plays an important role in society. Despite the increasing trend of filing the Divorce proceedings in the courts of law, the institution of marriage is still considered to be a pious, spiritual, and invaluable emotional life-net between the husband and the wife in Indian society. It is governed not only by the letters of law but by the social norms as well. So many other relationships stem from and thrive on the matrimonial relationships in the society. Therefore, it would not be desirable to accept the formula of 'irretrievable breakdown of marriage' as a strait-jacket formula for the grant of relief of divorce under Article 142 of the Constitution of India, ' the Court said.
Considering the specific circumstances, the Court declined to issue a divorce decree because the respondent wife had expressed her willingness to care for her husband and conveyed her desire not to bear the stigma of being labeled a 'divorced woman.'
'The respondent all throughout her life has maintained the sacred relationship since 1963 and has taken care of her three children all these years, despite the fact that the appellant-husband had exhibited total hostility towards them. The respondent is still ready and willing to take care of her husband and does not wish to leave him alone at this stage of life. She has also expressed her sentiments that she does not want to die with the stigma of being a 'divorcee' woman. In contemporary society, it may not constitute a stigma but here we are concerned with the respondent's own sentiment, 'the Court said.
The Court said allowing divorce in such a situation would cause injustice to the wife and hence refused to grant a decree of divorce as prayed for by the husband.
'Under the circumstances, considering and respecting the sentiments of the respondent wife, the Court is of the opinion that exercising the discretion in favor of the appellant under Article 142 by dissolving the marriage between parties on the ground that the marriage has irretrievably broken down, would not be doing 'complete justice' to the parties, would rather be doing injustice to the respondent, 'the Court stated in its order.
Dealing with this particular appeal, the bench said, 'Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is'. It opined that 'continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other'.
'In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years does nothing but inflicts cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion, spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13 (1) (ia) of the Act', the bench observed.
Given the complexities surrounding the use of Article 142 for granting divorces, the Supreme Court must carefully balance the need to ensure complete justice with the sanctity of marriage in Indian society. A nuanced approach that considers both the irretrievable breakdown of marriages and the protection of public policy and individual sentiments is crucial. By establishing clearer guidelines and criteria for invoking Article 142, the judiciary can ensure fair and equitable resolutions while respecting the cultural and emotional dimensions of marital relationships. This balanced approach will help in delivering justice without undermining the foundational values of the institution of marriage.
Judicial Perspective On Power Supreme Court's To Dissolve Marriage
The major question of law which arises in front of the Judges of Supreme Court while hearing the Divorce Petitions several times under Article 142 of the Constitution is : 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.
While dealing with this issue in the Landmark case of 'ShilpaSailesh v. VarunSreenivasan' the Apex court had called upon some Senior Advocates such as Adv. Dushyant Dave, Adv. V. Giri and Adv. Indira Jaisingh in the capacity of amici curiae.
Indira Jaising
The amici curiae have presented multiple arguments regarding the aforementioned issue, citing various decisions by the Supreme Court. One of the amici curiae, Senior Advocate Indira Jaisingh, addressed the Constitutional Bench, asserting that the right to divorce should be encompassed under the right to form associations as per Article 19(1)(c). She argued this right must be interpreted in conjunction with the right to life and liberty under Article 21. She commenced her arguments with a thorough analysis of the concept of marriage, highlighting that judicial opinions on its definition vary significantly.
Her arguments primarily focused on identifying the fundamental components that constitute an ideal marriage. She then deliberated on how a marriage lacking these essential elements could be justifiably dissolved. Jaisingh's approach involved dissecting the intrinsic attributes of a marriage, aiming to delineate the criteria that should be used to determine the dissolution of a marriage devoid of these crucial aspects. Her discourse emphasized the need to align the right to divorce with constitutional guarantees, reflecting an integrated interpretation of personal freedoms and marital relationships.
She asserts that the rights to enter and exit a marriage constitute fundamental rights. The court functions as an intermediary to resolve disputes between parties. It is imperative for us, as members of the judiciary, to define the court's role in such disputes. She contends that the court should adopt a limited role in matrimonial disputes. Its primary function should be to offer parties an opportunity for reconciliation, serving the public interest. She references the significance of previous liberal interpretations by the Apex Court. She argues that, in the public interest, the court should dissolve all marriages that have suffered an irretrievable breakdown. This would allow the parties to move forward and make the most of their remaining lives.
Fault Theory
Under this doctrine, divorce by mutual consent is permitted only in circumstances where one party has committed a matrimonial offense. This framework stipulates that for a marriage to be dissolved, one party must be guilty, while the other must be the aggrieved party. Only the aggrieved individual has the standing to approach the court for a divorce remedy. Jaising articulated that while divorce may often be attributed to one or more causes, it does not necessarily imply that fault lies with one party.
She argued that irretrievable breakdown of marriage should not be a reason to dismiss a divorce petition. 'If a marriage has irretrievably broken down, fault becomes irrelevant,' she stated. In nearly all divorce cases, allegations and counter-allegations abound. Moreover, in some instances, the wronged party may prefer to avoid public scrutiny and therefore, not disclose the specifics of their grievances. Thus, the focus should be on the breakdown of the marital relationship rather than assigning blame, as the dissolution of marriage in the case of an irretrievable breakdown reflects the reality of mutual incompatibility rather than fault-based infractions.
She effectively emphasized the issue of mutual consent in divorce proceedings, asserting that the autonomy of individuals within a marriage must be maintained under all circumstances. She identified that cruelty, desertion, separation, litigation, and counter-litigation serve as proxy indicators of an irretrievable breakdown of marriage. Furthermore, she suggested that Section 13 of the Hindu Marriage Act, 1956, could be interpreted in a more liberal and expansive manner to encompass 'irretrievable breakdown of marriage' as a valid ground for divorce.
V. Giri
Another of the amici curiae called to the court was senior Advocate V. Giri, he stated that 'irretrievable breakdown of marriage' could be read into the broad ground of cruelty under the Hindu Marriage Act, 1956, He noted that the judiciary has expanded the definition of cruelty to encompass mental cruelty. Advocate Giri asserted that the Supreme Court possesses the authority to determine when a marriage has irreparably broken down beyond the prospect of reconciliation.
He began by highlighting that the Supreme Court had imposed two significant self-restraints in exercising its plenary powers under Article 142. Firstly, these powers must be exercised judiciously. Secondly, their exercise should not contravene any statutory provision. Referring to Section 13 of the Hindu Marriage Act, he pointed out that it does not explicitly recognize 'irretrievable breakdown of marriage' as a ground for divorce. He argued, however, that this concept is subsumed under the broader category of cruelty. Advocate Giri's primary argument emphasized that instances where a spouse faces cruelty in a divorce petition—such as unnecessary obstinance by one spouse, prolonged separation, mutual allegations, or evidence of adultery—should all fall under the ambit of 'irretrievable breakdown of marriage' for the dissolution of marriage.
What is plenary power?
Article 142 under the Indian Constitution grants the Apex court an absolute power to enact laws on any particular issue without any limitation to ensure 'complete justice' to the parties involved.
Amici Curiae V.Giri rightfully stated the court that the power vested in the supreme court under Article 142 of constitution is not cribbed, cabined, or confined by any restraint in any of the statutory provisions present in the country.
'It is plenary in character. This is not a case where this Court will find that the power to do complete justice is not available. In fact, it would be an injustice to force two persons who cannot see eye to eye to remain in a marriage. This also throws the remaining members of the family into disarray. This would be a classic case of exercise of your powers under Article 142.'
Including irretrievable breakdown of marriage under section 13 of Hindu Marriage Act
Advocate V. Giri contended that when the Court employs its plenary power to interpret Section 13 as encompassing the irretrievable breakdown of marriage in specific situations, it neither infringes any fundamental rights nor violates any substantive provisions. He further asserted that the Court may determine the presence of mental cruelty by examining the unique facts and circumstances of each case. Additionally, Giri emphasized that for lower courts or high courts to grant a decree of divorce on the grounds of irretrievable breakdown of marriage, there must be a clear and specific pleading alleging cruelty by one of the parties involved.
Waive the cooling - off period
He articulated that it would be unjustifiable to dispense with the cooling-off period at the trial court level, as these courts are handling the matter as an original proceeding. However, the situation differs significantly when the matter is brought before the Supreme Court. At this stage, the parties involved have typically been engaged in prolonged litigation.
Dushyant Dave
One of the amici curiae invited by the court, Senior Advocate Dushyant Dave, emphasized that the Supreme Court's authority under Article 142 cannot be exercised to dissolve marriages. He contended that explicit provisions for divorce already exist. Dave asserted that the power conferred by Article 142 should not be viewed as an independent power but must be exercised in conjunction with the other powers vested in the Supreme Court. He supported his argument by referencing the speeches and draft Constitution presented by B.R. Ambedkar.
He emphasized on the fact that the power vested under Article 142 of the Constitution shall not be considered as an independent power, it is in line with the Article 131,132,133,134 and 136 of Constitution to provide the aid to all these article and enhance functions of the supreme court by increasing its power.
In another observation, Dave respectfully contested the Supreme Court's authority under Article 142 to address matters related to the dissolution of marriage. He reiterated that the jurisdiction over divorce matters is vested in the District Courts. Every statute prescribes a specific procedure for the exercise of power, and this procedure must be adhered to accordingly. Citing Dr. Ambedkar's speech in the Constituent Assembly, he emphasized that 'the purpose of a Constitution is not merely to establish the organs of the State but also to limit their authority. Without such limitations, there would be complete tyranny and oppression'.[12]
Pendency of cases in the Apex Court
In alignment with his earlier argument, Dave asserted that the backlog of cases pending before the court has been a persistent concern for the Judiciary over an extended period. He emphasized that the Supreme Court bears even greater responsibilities, rendering it impractical for the Supreme Court to address such matters directly. Dave further contended that it falls within the Government's purview to manage these pending issues.
Additionally, Dave posited that marriage, as a social institution, has been losing its identity and social cohesion over the past decades. He attributed this decline to the influence of Western society, which has contributed to the erosion of marriage as an institution. He argued that a cooling-off period is essential to provide the parties with an opportunity to reconsider their decisions.
Ethical Consideration And Future Implications
Article 142 of the Indian Constitution bestows a distinctive power upon the Supreme Court to ensure 'complete justice' for parties when neither existing statutes nor court remedies suffice. Despite the substantial backlog of cases faced by the Supreme Court, it is argued by Senior Counsel Dushyant Dave that the Court should refrain from overstepping its jurisdiction in matrimonial disputes, which should be handled by lower courts to prevent direct appeals to the Apex Court. However, it is imperative to recognize that parties possess a fundamental right to appeal to the Supreme Court if dissatisfied with lower court decisions, and this right should not be curtailed by the judiciary.
This article advocates that the Supreme Court should invoke its powers under Article 142 to incorporate the principle of 'Irretrievable Breakdown' of marriage in cases concerning matrimonial dissolution, but only when such cases are brought before the Supreme Court. Lower courts, being courts of original jurisdiction, should not be endowed with this authority. This is due to the nascent nature of disputes at this level, and in accordance with Hindu law, which traditionally regards marriage as a sacrament.
Nonetheless, under Western influence, this perception has been eroding. Initially, parties filing for divorce might resolve their differences and reconsider during the cooling-off period afforded to them. Therefore, the Supreme Court should reserve the application of Article 142 for cases where the irretrievable breakdown of marriage is evident, ensuring that justice is rendered comprehensively.
Therefore, when parties initiate proceedings for the Dissolution of Marriage, they must initially approach the lower court. Should the parties find the order of the lower court or High Court unsatisfactory, they are entitled to seek recourse with the Supreme Court under Article 142 of the Indian Constitution. The Supreme Court, under this Article, may issue a decree for divorce on the grounds of 'Irretrievable Breakdown' of marriage. This decision will be based on the specific facts and circumstances of each case.
Conclusion
The Supreme Court's authority under Article 142 of the Indian Constitution has been subject to varied interpretations across different contexts. Through an analysis of landmark judgments and statutory provisions, we conclude that the Supreme Court, as the highest judicial authority in the nation, possesses the power to address deficiencies within the legal system and adapt its application to the evolving modern Indian society. This analysis primarily focuses on the dissolution of marriage-related disputes.
It is evident that society is not static but transforms over time. Laws enacted during a particular period may not remain suitable for contemporary or future societal conditions. Consequently, when disputes reach the Supreme Court following dissatisfaction with lower court rulings, the Supreme Court is empowered under Article 142 to exercise its plenary powers. In such instances, considering the specific facts of the case, the Court may grant a decree of divorce without adhering to the mandatory cooling-off period.
This is especially relevant under the concept of the 'irretrievable breakdown' of marriage, recognizing that parties approaching the Supreme Court often have no prospects of reconciling their differences. The Court must be thoroughly convinced that, in the given case, the dissolution of the marriage is the only viable solution for the parties involved.
End Notes:
Written By:
As a source of legal authority, the Constitution empowers the Parliament as well as the state and union territory legislatures to promulgate statute. However, there are instances where these statutes may fall short in delivering effective justice to the aggrieved parties. Recognizing this potential inadequacy, the Constitution bestows upon the judiciary, specifically under Article 142, the discretionary power to render complete justice in any matter pending before it. This provision ensures that the courts can transcend statutory limitations to address the exigencies of each case, thereby upholding the overarching principle of justice that the Constitution seeks to guarantee.
Article 142 is a provision that empowers the Supreme Court to pass any decree or order to do complete justice in any cases or matter pending before it. It also makes such an order or decree enforceable throughout the territory of India. It allows the Supreme Court to intervene in matters of public interest, human rights, constitutional values, and fundamental rights and to protect them from any violation or infringement. It enhances the Supreme Court's role as the guardian of the constitution and final arbitrator of and as a source of judicial activism and innovation.[1]
The Supreme Court of India possesses unrestricted authority regarding the types of cases in which it can invoke its powers under Article 142. Over the past few decades, this prerogative has been notably exercised in the realm of granting divorce decrees. Despite the existence of legislative statutes designed to adjudicate divorce matters, the court employs Article 142 to ensure complete justice in specific cases where it deems appropriate. Nonetheless, the application of this extraordinary power in divorce proceedings must be approached with utmost diligence and prudence, ensuring that the integrity and principles of justice are meticulously upheld. In case of 'ShilpaSailesh v. VarunSreenivasan'[2] the court stated in that:
' 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. '
As indicated in the aforementioned statement, the court granted a divorce on the grounds of 'irretrievable breakdown of marriage.' This decision is contentious because this specific ground is not mentioned in any existing divorce statutes. It has been established in several cases that, although the Supreme Court's inherent powers under Article 142 of the Constitution of India are extensive, they cannot be used to override the substantive law applicable to the case at hand. This principle is reflected in the case of 'Union Bank of India v. Rajat Infrastructure Pvt. Ltd.'[3] &Ors, where the bench of Justice Aniruddha Bose and Justice Bela M. Trivedi observed that:
' It cannot be again said that the court in exercise of powers under Article 142 cannot ignore any substantive statutory provision dealing with the subject. The plenary powers of the Supreme Court under Article 142 are inherent in nature and are complementary to those powers which are specifically conferred on the court by various statutes. These powers though are of a very wide amplitude to do complete justice between the parties, cannot be used to supplant the substantive law applicable to the cause under consideration of the court,'.
Numerous legal scholars and analysts criticize the court's act of granting divorce by circumventing statutory provisions as judicial overreach and a breach of the doctrine of separation of powers. In this article, we will delve into these and other related objections. Furthermore, we will explore the statutory framework governing divorce in India and examine landmark judgments pertaining to divorce and Article 142. Our discussion will aim to uncover ways to harmonize judicial discretion with the established legal framework, taking into account ethical considerations and the potential future implications of such judicial actions. Through this comprehensive analysis, we hope to illuminate the complexities involved in balancing judicial authority and statutory mandates.
Background: Marriage And Divorce Laws In India
India's endeavor to reconcile traditional customs with contemporary legal principles is evident in the evolution of its marriage and divorce laws. These laws have undergone significant transformation over the years, driven by social movements, legislative reforms, and judicial interpretations. Initially, religious texts and customs served as the primary sources of guidance for marriage and divorce regulations. However, the mid-20th century saw a pivotal shift with the introduction of codified laws, transitioning towards a more uniform legal framework.
The codification of Hindu marriage and divorce laws culminated in the enactment of the Hindu Marriage Act of 1955, marking a watershed moment. This legislation introduced groundbreaking provisions for divorce on grounds such as cruelty, adultery, desertion, and mutual consent. Similarly, the Special Marriage Act of 1954 established a secular framework for marriages between individuals of different religious backgrounds, promoting interfaith unions and providing similar grounds for divorce.
Christians were governed by the Indian Divorce Act of 1869, while Muslims were subject to the Muslim Personal Law (Shariat) Application Act of 1937, which adhered to their personal laws. This legal tapestry reflects India's intricate balance between preserving traditional customs and embracing modern legal standards.
The enforcement of marriage and divorce statutes often encountered challenges, despite the presence of legislative frameworks, particularly in cases where statutory provisions were either ambiguous or insufficient to address specific issues. This is where the transformative role of the Supreme Court of India becomes evident, utilizing its authority under Article 142 of the Constitution. Article 142 empowers the Supreme Court to issue any order or directive necessary to ensure ' complete justice ' in any matter before it.
This provision has been instrumental in bridging statutory gaps to ensure justice in complex marital disputes. The landmark case of 'Gaurav Nagpal v. Sumedha Nagpal'[4] exemplifies the Supreme Court's application of Article 142. In this case, the statutory requirements did not adequately resolve the contentious child custody dispute at hand. By invoking Article 142, the Court emphasized that the child's welfare is paramount and that the child's best interests are of utmost importance. This decision underscored the Court's commitment to delivering comprehensive justice beyond the rigid confines of statutory law and set a precedent for future custody disputes.
The acceleration of divorce proceedings by the Supreme Court has been a pivotal aspect of its exercise of powers under Article 142, especially in cases where marriages have irretrievably broken down. Although well-intentioned, the mandatory cooling-off periods mandated by statutes such as the Hindu Marriage Act, 1955, have compelled parties in irretrievably fractured marriages to endure prolonged distress. Recognizing this hardship, the Supreme Court has, on numerous occasions, granted divorces that bypass these statutory durations. In the case of 'Anil Kumar Jain v. Maya Jain'[5], the Court provided relief to the estranged couple by granting a divorce by mutual consent under Article 142, notwithstanding the fact that the statutory waiting period had not yet lapsed.
The 2016 Supreme Court case, ' Narendra v. K. Meena,[6]' exemplifies the judiciary's proactive stance on addressing domestic abuse. In this landmark decision, the Court exercised its authority under Article 142 to ensure justice in situations where statutory grounds for divorce were ambiguous. The Court granted a divorce on the grounds of mental cruelty, reinforcing its power to interpret and expand the definition of cruelty within the context of marriage. This decision underscores the Court's commitment to ensuring that the legal framework remains responsive and adaptable to evolving societal norms.
Consequently, the interplay between statutory provisions and judicial interpretations has dynamically influenced the evolution of marriage and divorce laws in India. The Supreme Court's interventions under Article 142 have played a crucial role in shaping marital jurisprudence, ensuring that statutory limitations do not obstruct the delivery of justice. These judicial actions have not only addressed the immediate needs of the parties involved but have also set significant precedents likely to influence future cases and legislative reforms.
The Evolution Of Article 142: Judicial Interpretations And Its Impact On Divorce Laws
Does article 142 give the court power to adjudicate divorce matters?
Article 142, frequently referenced for its objective to ensure 'complete justice' to all citizens, remains contentious in terms of its precise definition and scope. This article's authority to override established statutory provisions has been a persistent subject of debate. The concept of 'complete justice' has evolved over time, shaped by various judicial pronouncements that reflect the prevailing societal contexts. Recently, the judiciary has extended its reach beyond the confines of the Hindu Marriage Act, the Criminal Procedure Code, and other statutory frameworks governing divorce to achieve 'complete justice' for the parties involved.
This expansion has sparked considerable scrutiny. Here, we will examine the ambit of Article 142 in the context of divorce cases, analyzing landmark judgments, and incorporating the arguments presented by counsel and the opinions expressed by judges.
Article 142 of the Constitution of India, which gives wide and capacious power to the Supreme Court to do 'complete justice' in any 'cause or matter,' is significant, as the judgment delivered by this court ends the litigation between the parties. Given the expansive amplitude of power under Article 142, the exercise of power must be legitimate and clamors for caution, mindful of the danger that arises from adopting an individualistic approach to the exercise of Constitutional power.
Interpreting Article 142(1) of the Constitution of India in 'M. Siddiq (dead) Through Legal Representatives (Ram Janmabhoomi Temple case) v. Mahant Suresh Das and others'[7]. The constitution bench opined that the phrase 'is necessary for doing complete justice' under Article 142 grants the Supreme Court broad equitable powers, allowing it to address gaps or inadequacies in the strict application of law to achieve just outcomes. This power enables the court to interpret and modify laws liberally and humanely, particularly in unique cases where general laws fall short.
The equitable power under Article 142 thus bridges the gap between general and specific laws, reflecting Professor C.K. Allen's classification of equity into general equity (liberal interpretation of law) and particular equity (modification of law in exceptional cases). Article 142(1) prioritizes equity over strict legal adherence, permitting the court to relax or exempt parties from the rigors of laws based on case-specific circumstances. However, this power must be exercised with caution, ensuring that relief based on equity does not undermine substantive legal mandates or public policy principles.
In the case of 'I.C. GolakNath and Others v. State of Punjab and Another'[8], Chief Justice K. SubbaRao emphasized that the Supreme Court's power under Article 142(1) of the Constitution of India is broad and flexible, allowing the court to develop legal doctrines to achieve justice. The only constraints on this power are reason, restraint, and the avoidance of injustice. Restraint and deference are essential aspects of the Rule of Law and maintain the separation of powers between the legislature, executive, and judiciary.
When the Supreme Court uses its authority under Article 142(1) to do 'complete justice' in a specific case, it does so within the boundaries of the Constitution and does not encroach upon the legislature's role in law making. This power is integral to the Court's decisions and underscores the guiding principle of achieving complete justice.
The idea that a provision in any ordinary law, regardless of the significance of the public policy it supports, can restrict the Supreme Court's powers under Article 142(1) is incorrect and flawed. This was also observed in Union Carbide Corporation and Others v. Union of India and Others. The court noted that there are misconceptions about the scope of the Supreme Court's powers under Article 142(1) that need clarification. It's incorrect to claim that provisions in ordinary laws, regardless of their public policy importance, can limit the Supreme Court's powers under Article 142(1). In the Garg and Antulay cases, the main issue was the violation of constitutional rights, not statutory inconsistencies.
The Court's power under Article 142 to quash criminal proceedings is not restricted by sections 320, 321, or 482 of the CrPC. These powers are of a higher order and quality, and ordinary law provisions cannot limit them. While statutory prohibitions should be considered in light of fundamental public policy when exercising Article 142 powers, they do not override constitutional provisions. Thus, the Supreme Court must consider these prohibitions to determine what constitutes 'complete justice,' but this does not imply a lack of jurisdiction or nullity.
The evolution of judicial interpretation of Article 142 can be categorized into three distinct phases. The first phase, lasting until the late 1980s, is marked by the rulings in Prem Chand Garg and A.R. Antulay, which stated that directions issued by the Court should not conflict with or violate specific statutory provisions and should only deviate from procedural rules. Additionally, these directions must not infringe upon individuals' Fundamental Rights, a principle that has remained undisputed through subsequent phases.
The second phase is rooted in the decision of the 11-Judge Constitution Bench in I.C. GolakNath, which introduced the doctrine of prospective overruling. This judgment established that Articles 32, 141, and 142 are framed in broad and flexible terms, allowing the Court to develop legal doctrines aimed at achieving justice, with the sole constraints being reason, restraint, and avoidance of injustice. In the case of the Delhi Judicial Service Association, the Court reiterated that any prohibitions or restrictions in ordinary laws cannot limit the Court's constitutional power to issue orders or directions to ensure 'complete justice' in any case.
The third phase, characterized by a more measured approach, originated with the Union Carbide Corporation ruling. This decision emphasized that while exercising powers under Article 142 and determining what constitutes 'complete justice' in a case, the Court should consider express prohibitions in substantive statutory provisions that are based on fundamental principles of public policy, thereby guiding the exercise of its power and discretion. The judgment in the Supreme Court Bar Association case further argued that the Court, under Article 142(1), has the authority to achieve 'complete justice' without adhering strictly to procedural provisions if it deems such departure necessary to ensure justice between the parties.
The essential point to remember when exercising powers under Article 142 is that as long as the 'complete justice' required by the 'cause or matter' is achieved without violating fundamental principles of general or specific public policy, the exercise of power and discretion under Article 142(1) is valid and constitutional. This is why the power under Article 142(1) of the Constitution of India remains undefined and uncatalogued, ensuring the flexibility to tailor relief to suit specific situations. The fact that this power is vested solely in the Supreme Court provides assurance that it will be exercised with due restraint and careful consideration.
Bypassing 'Cooling Off Period'
After examining the scope of powers under Article 142 and clearly understanding the concept of 'complete justice,' it can be conclusively established that the Supreme Court has the authority to adjudicate any matter, including divorce cases, while exercising its powers under Article 142 to ensure complete justice. The Court has addressed several crucial questions regarding divorce, with some rulings being landmark decisions that can serve as a guiding force for amending divorce-related legislation.
One such matter concerns the waiting period or 'cooling off period.' According to Section 13-B of the Hindu Marriage Act, after submitting the first motion for divorce by mutual consent, the parties are required to wait for a minimum of six months and a maximum of 18 months before filing the second motion. This 'cooling off period' is stipulated by the legislature to afford the parties an opportunity for introspection and to reconsider their decision to separate by divorce.
The question that was put before the court was that 'Whether, upon settlement, the court can dissolve a marriage by mutual consent, bypassing procedural requirements in Section 13-B of the Hindu Marriage Act?'
In the case of ShilpaSailesh vs. VarunSreenivasan, a Constitution Bench of the Supreme Court has decided that it can utilize its special authority under Article 142 of the Constitution of India to waive the mandatory waiting period of 6 to 18 months required for seeking divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. The 5-judge bench, including Justices Sanjay KishanKaul, Sanjiv Khanna, AS Oka, VikramNath, and JK Maheshwari, held that the Supreme Court has the power under Article 142(1) to grant a decree of divorce by mutual consent, bypassing the specified period and procedure outlined in Section 13-B of the Hindu Marriage Act.
As per Section 13-B of the Hindu Marriage Act, after filing the first motion seeking divorce through mutual consent, the parties have to wait for a minimum of six months and a maximum of 18 months before moving the second motion. However, this mandate for waiting periods was found to be causing hardships in certain cases. In 2017, a two-judge bench of the Court in 'Amardeep Singh v. Harveen Kaur'[9] held that the six months waiting period as prescribed under Section 13B(2) of the HMA is not mandatory and that the same can be waived by the Family Court in exceptional circumstances.
The Constitution Bench noted that in Amardeep Singh, certain factors were mentioned which will warrant the waiving of the waiting period:
- The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
- All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further effort;
- The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
- The waiting period will only prolong their agony.
The two-judge bench in Amardeep Singh further held that the Court should consider the following questions:
- How long parties have been married?
- How long litigation is pending?
- How long have they been staying apart?
- Are there any other proceedings between the parties?
- Have the parties attended mediation/ conciliation?
- Have the parties arrived at a genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
In conclusion regarding this matter in ShilpaShailesh, the bench stated that:
'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, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and set aside other proceedings and orders, including criminal proceedings'.
Dissolution Of Marriage On Ground Of 'Irretrievable Breakdown Of Marriage'
In a significant verdict, a Constitution Bench of the Supreme Court in case of ShilpaSailesh vs. VarunSreenivasan 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 SanjivKhanna orally pronounced the operative portion. Justice Khanna noted that the judgment outlines the factors to be considered when dissolving a marriage on this ground and explains how to balance equities, particularly concerning maintenance, alimony, and the rights of the children. While dictating the judgement in the same case the court said:
'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'.
It is firmly asserted in the judgment that grant of divorce on irretrievable breakdown of marriage by the Supreme Court is not a matter of right, but a matter of discretion and must be exercised with great care and caution. This highlights the importance of judicial prudence and ensures that each case must be dealt with on its merits. Integrity of the institution of marriage and welfare of the parties involved must be kept in mind while taking in all the factors to deliver justice through a cautious approach, maintaining a fair and balanced legal process.
In line with the above stated the court in ShilpaSailesh also said that '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.'
There are several factors that the court mentioned must be kept in mind while granting divorce. Such factors are: 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 added.
Further, 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'. 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'.
In rare and exceptional matrimonial cases, resolving and adjudicating disputes should not primarily focus on assigning blame or determining which party is more at fault.
'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'
The Supreme Court has at times refrained from invoking its powers under Article 142 to grant divorces on the grounds of 'irretrievable breakdown of marriage' recognizing it as a matter of judicial discretion rather than a right. In the case of 'Dr.Nirmal Singh Panesar v. Mrs.Paramjit Kaur Panesar'[11], the Court rejected the husband's divorce request due to the wife's non-consent. Nevertheless, it reaffirmed the precedent set in ShilpaSailesh that the Court may grant a divorce on this ground even if one spouse opposes. The Court also clarified that, given the Indian cultural perception of marriage as a sacred and spiritual bond, a rigid formula for granting divorce under Article 142 is undesirable.
A bench of Justice Aniruddha Bose and Justice Bela M Trivedi was considering a plea for divorce by a husband aged about 89 years from his wife aged about 82 years. The wife had expressed her desire to continue in the marriage and thus the Court refused to grant divorce.
'..in our opinion, one should not be oblivious to the fact that the institution of marriage occupies an important place and plays an important role in society. Despite the increasing trend of filing the Divorce proceedings in the courts of law, the institution of marriage is still considered to be a pious, spiritual, and invaluable emotional life-net between the husband and the wife in Indian society. It is governed not only by the letters of law but by the social norms as well. So many other relationships stem from and thrive on the matrimonial relationships in the society. Therefore, it would not be desirable to accept the formula of 'irretrievable breakdown of marriage' as a strait-jacket formula for the grant of relief of divorce under Article 142 of the Constitution of India, ' the Court said.
Considering the specific circumstances, the Court declined to issue a divorce decree because the respondent wife had expressed her willingness to care for her husband and conveyed her desire not to bear the stigma of being labeled a 'divorced woman.'
'The respondent all throughout her life has maintained the sacred relationship since 1963 and has taken care of her three children all these years, despite the fact that the appellant-husband had exhibited total hostility towards them. The respondent is still ready and willing to take care of her husband and does not wish to leave him alone at this stage of life. She has also expressed her sentiments that she does not want to die with the stigma of being a 'divorcee' woman. In contemporary society, it may not constitute a stigma but here we are concerned with the respondent's own sentiment, 'the Court said.
The Court said allowing divorce in such a situation would cause injustice to the wife and hence refused to grant a decree of divorce as prayed for by the husband.
'Under the circumstances, considering and respecting the sentiments of the respondent wife, the Court is of the opinion that exercising the discretion in favor of the appellant under Article 142 by dissolving the marriage between parties on the ground that the marriage has irretrievably broken down, would not be doing 'complete justice' to the parties, would rather be doing injustice to the respondent, 'the Court stated in its order.
Dealing with this particular appeal, the bench said, 'Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is'. It opined that 'continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other'.
'In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years does nothing but inflicts cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion, spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13 (1) (ia) of the Act', the bench observed.
Given the complexities surrounding the use of Article 142 for granting divorces, the Supreme Court must carefully balance the need to ensure complete justice with the sanctity of marriage in Indian society. A nuanced approach that considers both the irretrievable breakdown of marriages and the protection of public policy and individual sentiments is crucial. By establishing clearer guidelines and criteria for invoking Article 142, the judiciary can ensure fair and equitable resolutions while respecting the cultural and emotional dimensions of marital relationships. This balanced approach will help in delivering justice without undermining the foundational values of the institution of marriage.
Judicial Perspective On Power Supreme Court's To Dissolve Marriage
The major question of law which arises in front of the Judges of Supreme Court while hearing the Divorce Petitions several times under Article 142 of the Constitution is : 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.
While dealing with this issue in the Landmark case of 'ShilpaSailesh v. VarunSreenivasan' the Apex court had called upon some Senior Advocates such as Adv. Dushyant Dave, Adv. V. Giri and Adv. Indira Jaisingh in the capacity of amici curiae.
Indira Jaising
The amici curiae have presented multiple arguments regarding the aforementioned issue, citing various decisions by the Supreme Court. One of the amici curiae, Senior Advocate Indira Jaisingh, addressed the Constitutional Bench, asserting that the right to divorce should be encompassed under the right to form associations as per Article 19(1)(c). She argued this right must be interpreted in conjunction with the right to life and liberty under Article 21. She commenced her arguments with a thorough analysis of the concept of marriage, highlighting that judicial opinions on its definition vary significantly.
Her arguments primarily focused on identifying the fundamental components that constitute an ideal marriage. She then deliberated on how a marriage lacking these essential elements could be justifiably dissolved. Jaisingh's approach involved dissecting the intrinsic attributes of a marriage, aiming to delineate the criteria that should be used to determine the dissolution of a marriage devoid of these crucial aspects. Her discourse emphasized the need to align the right to divorce with constitutional guarantees, reflecting an integrated interpretation of personal freedoms and marital relationships.
She asserts that the rights to enter and exit a marriage constitute fundamental rights. The court functions as an intermediary to resolve disputes between parties. It is imperative for us, as members of the judiciary, to define the court's role in such disputes. She contends that the court should adopt a limited role in matrimonial disputes. Its primary function should be to offer parties an opportunity for reconciliation, serving the public interest. She references the significance of previous liberal interpretations by the Apex Court. She argues that, in the public interest, the court should dissolve all marriages that have suffered an irretrievable breakdown. This would allow the parties to move forward and make the most of their remaining lives.
Fault Theory
Under this doctrine, divorce by mutual consent is permitted only in circumstances where one party has committed a matrimonial offense. This framework stipulates that for a marriage to be dissolved, one party must be guilty, while the other must be the aggrieved party. Only the aggrieved individual has the standing to approach the court for a divorce remedy. Jaising articulated that while divorce may often be attributed to one or more causes, it does not necessarily imply that fault lies with one party.
She argued that irretrievable breakdown of marriage should not be a reason to dismiss a divorce petition. 'If a marriage has irretrievably broken down, fault becomes irrelevant,' she stated. In nearly all divorce cases, allegations and counter-allegations abound. Moreover, in some instances, the wronged party may prefer to avoid public scrutiny and therefore, not disclose the specifics of their grievances. Thus, the focus should be on the breakdown of the marital relationship rather than assigning blame, as the dissolution of marriage in the case of an irretrievable breakdown reflects the reality of mutual incompatibility rather than fault-based infractions.
She effectively emphasized the issue of mutual consent in divorce proceedings, asserting that the autonomy of individuals within a marriage must be maintained under all circumstances. She identified that cruelty, desertion, separation, litigation, and counter-litigation serve as proxy indicators of an irretrievable breakdown of marriage. Furthermore, she suggested that Section 13 of the Hindu Marriage Act, 1956, could be interpreted in a more liberal and expansive manner to encompass 'irretrievable breakdown of marriage' as a valid ground for divorce.
V. Giri
Another of the amici curiae called to the court was senior Advocate V. Giri, he stated that 'irretrievable breakdown of marriage' could be read into the broad ground of cruelty under the Hindu Marriage Act, 1956, He noted that the judiciary has expanded the definition of cruelty to encompass mental cruelty. Advocate Giri asserted that the Supreme Court possesses the authority to determine when a marriage has irreparably broken down beyond the prospect of reconciliation.
He began by highlighting that the Supreme Court had imposed two significant self-restraints in exercising its plenary powers under Article 142. Firstly, these powers must be exercised judiciously. Secondly, their exercise should not contravene any statutory provision. Referring to Section 13 of the Hindu Marriage Act, he pointed out that it does not explicitly recognize 'irretrievable breakdown of marriage' as a ground for divorce. He argued, however, that this concept is subsumed under the broader category of cruelty. Advocate Giri's primary argument emphasized that instances where a spouse faces cruelty in a divorce petition—such as unnecessary obstinance by one spouse, prolonged separation, mutual allegations, or evidence of adultery—should all fall under the ambit of 'irretrievable breakdown of marriage' for the dissolution of marriage.
What is plenary power?
Article 142 under the Indian Constitution grants the Apex court an absolute power to enact laws on any particular issue without any limitation to ensure 'complete justice' to the parties involved.
Amici Curiae V.Giri rightfully stated the court that the power vested in the supreme court under Article 142 of constitution is not cribbed, cabined, or confined by any restraint in any of the statutory provisions present in the country.
'It is plenary in character. This is not a case where this Court will find that the power to do complete justice is not available. In fact, it would be an injustice to force two persons who cannot see eye to eye to remain in a marriage. This also throws the remaining members of the family into disarray. This would be a classic case of exercise of your powers under Article 142.'
Including irretrievable breakdown of marriage under section 13 of Hindu Marriage Act
Advocate V. Giri contended that when the Court employs its plenary power to interpret Section 13 as encompassing the irretrievable breakdown of marriage in specific situations, it neither infringes any fundamental rights nor violates any substantive provisions. He further asserted that the Court may determine the presence of mental cruelty by examining the unique facts and circumstances of each case. Additionally, Giri emphasized that for lower courts or high courts to grant a decree of divorce on the grounds of irretrievable breakdown of marriage, there must be a clear and specific pleading alleging cruelty by one of the parties involved.
Waive the cooling - off period
He articulated that it would be unjustifiable to dispense with the cooling-off period at the trial court level, as these courts are handling the matter as an original proceeding. However, the situation differs significantly when the matter is brought before the Supreme Court. At this stage, the parties involved have typically been engaged in prolonged litigation.
Dushyant Dave
One of the amici curiae invited by the court, Senior Advocate Dushyant Dave, emphasized that the Supreme Court's authority under Article 142 cannot be exercised to dissolve marriages. He contended that explicit provisions for divorce already exist. Dave asserted that the power conferred by Article 142 should not be viewed as an independent power but must be exercised in conjunction with the other powers vested in the Supreme Court. He supported his argument by referencing the speeches and draft Constitution presented by B.R. Ambedkar.
He emphasized on the fact that the power vested under Article 142 of the Constitution shall not be considered as an independent power, it is in line with the Article 131,132,133,134 and 136 of Constitution to provide the aid to all these article and enhance functions of the supreme court by increasing its power.
In another observation, Dave respectfully contested the Supreme Court's authority under Article 142 to address matters related to the dissolution of marriage. He reiterated that the jurisdiction over divorce matters is vested in the District Courts. Every statute prescribes a specific procedure for the exercise of power, and this procedure must be adhered to accordingly. Citing Dr. Ambedkar's speech in the Constituent Assembly, he emphasized that 'the purpose of a Constitution is not merely to establish the organs of the State but also to limit their authority. Without such limitations, there would be complete tyranny and oppression'.[12]
Pendency of cases in the Apex Court
In alignment with his earlier argument, Dave asserted that the backlog of cases pending before the court has been a persistent concern for the Judiciary over an extended period. He emphasized that the Supreme Court bears even greater responsibilities, rendering it impractical for the Supreme Court to address such matters directly. Dave further contended that it falls within the Government's purview to manage these pending issues.
Additionally, Dave posited that marriage, as a social institution, has been losing its identity and social cohesion over the past decades. He attributed this decline to the influence of Western society, which has contributed to the erosion of marriage as an institution. He argued that a cooling-off period is essential to provide the parties with an opportunity to reconsider their decisions.
Ethical Consideration And Future Implications
Article 142 of the Indian Constitution bestows a distinctive power upon the Supreme Court to ensure 'complete justice' for parties when neither existing statutes nor court remedies suffice. Despite the substantial backlog of cases faced by the Supreme Court, it is argued by Senior Counsel Dushyant Dave that the Court should refrain from overstepping its jurisdiction in matrimonial disputes, which should be handled by lower courts to prevent direct appeals to the Apex Court. However, it is imperative to recognize that parties possess a fundamental right to appeal to the Supreme Court if dissatisfied with lower court decisions, and this right should not be curtailed by the judiciary.
This article advocates that the Supreme Court should invoke its powers under Article 142 to incorporate the principle of 'Irretrievable Breakdown' of marriage in cases concerning matrimonial dissolution, but only when such cases are brought before the Supreme Court. Lower courts, being courts of original jurisdiction, should not be endowed with this authority. This is due to the nascent nature of disputes at this level, and in accordance with Hindu law, which traditionally regards marriage as a sacrament.
Nonetheless, under Western influence, this perception has been eroding. Initially, parties filing for divorce might resolve their differences and reconsider during the cooling-off period afforded to them. Therefore, the Supreme Court should reserve the application of Article 142 for cases where the irretrievable breakdown of marriage is evident, ensuring that justice is rendered comprehensively.
Therefore, when parties initiate proceedings for the Dissolution of Marriage, they must initially approach the lower court. Should the parties find the order of the lower court or High Court unsatisfactory, they are entitled to seek recourse with the Supreme Court under Article 142 of the Indian Constitution. The Supreme Court, under this Article, may issue a decree for divorce on the grounds of 'Irretrievable Breakdown' of marriage. This decision will be based on the specific facts and circumstances of each case.
Conclusion
The Supreme Court's authority under Article 142 of the Indian Constitution has been subject to varied interpretations across different contexts. Through an analysis of landmark judgments and statutory provisions, we conclude that the Supreme Court, as the highest judicial authority in the nation, possesses the power to address deficiencies within the legal system and adapt its application to the evolving modern Indian society. This analysis primarily focuses on the dissolution of marriage-related disputes.
It is evident that society is not static but transforms over time. Laws enacted during a particular period may not remain suitable for contemporary or future societal conditions. Consequently, when disputes reach the Supreme Court following dissatisfaction with lower court rulings, the Supreme Court is empowered under Article 142 to exercise its plenary powers. In such instances, considering the specific facts of the case, the Court may grant a decree of divorce without adhering to the mandatory cooling-off period.
This is especially relevant under the concept of the 'irretrievable breakdown' of marriage, recognizing that parties approaching the Supreme Court often have no prospects of reconciling their differences. The Court must be thoroughly convinced that, in the given case, the dissolution of the marriage is the only viable solution for the parties involved.
End Notes:
- Constitution of India, Article 142
- Shilpa Sailesh Vs. Varun Sreenivasan, MANU/SC/0502/2023
- Union Bank of India Vs. Rajat Infrastructure Pvt. Ltd., MANU/SC/1077/2023
- Gaurav Nagpal v. Sumedha Nagpal, MANU/SC/8279/2008
- Anil Kumar Jain v. Maya Jain, MANU/SC/1593/2009
- Narendra v. K. Meena, MANU/SC/1180/2016
- M. Siddiq v. Mahant Suresh Das and others , (2019) SCCOnline 1440
- I.C. GolakNath and Others v. State of Punjab and Another , 1967 A.I.R 1643
- Amardeep Singh v. Harveen Kaur, MANU/SC/1134/2017
- Amit Kumar vs. Suman Beniwal, MANU/SC/1293/2021
- Dr.Nirmal Singh Panesar v. Mrs.Paramjit Kaur Panesar, MANU/SCOR/129841/2023
- Volume VII, Constituent Assembly Debates
Written By:
- Vinayak Sharma, Third year B.A LL.B(Hons.) - Institute of Law, Nirma University.
- Kritika Sharma, Fourth year B.A LL.B(Hons.) - Institute of Law, Nirma University.
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