Landmark ruling! Supreme Court removes 6-month waiting period for divorce

In a landmark judgment, the Supreme Court on Monday said that it has the discretion to dissolve a marriage on the ground of “irretrievable breakdown”. This can be done through exercising of its power under Article 142 (1) of the Constitution.

Article 142 of the Constitution deals with enforcement of decrees and orders of the apex court to do “complete justice” in any matter pending before it. As per Article 142(1), a decree passed or an order made by the apex court is executable throughout the territory of India.

A five-judge Constitution bench headed by Justice SK Kaul said the Supreme Court can dissolve a marriage by granting divorce through mutual consent while dispensing with the 6-month waiting period mandated under the Hindu Marriage Act, 1955.

Section 13-B of the Hindu Marriage Act tackles divorce by mutual consent and sub-section (2) to this provision provides, after the first motion has been passed, the parties would have to move the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than 18 months of the first motion.

The justices stated that irretrievable marriage breakdown is not a matter of right, but rather a matter of discretion to be applied with great care and delicacy, taking into account many considerations to ensure that 'full justice' is done to both parties.

The bench was hearing several petitions related to whether the top court can grant divorce under Article 142(1) of the Constitution when there is complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer.

“This question is also answered in the affirmative, inter alia, holding that 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,” said the bench, also comprising Justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari.

“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,” it said.

While delivering the judgment, the judges used an example of a 2014 case filed in the apex court, titled Shilpa Sailesh vs. Varun Sreenivasan, where both the parties had asked for a divorce under Article 142 of the Indian Constitution.

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