The hon’ble Supreme Court through its recent judgment in Shilpa Shailesh vs Varun Sreenivasan ruled that it can exercise its power under article 142 of the Constitution to grant a decree of divorce.
The Court held that by exercising its special power under Art.142 the apex court can directly grant a decree of divorce, by mutual consent of the parties, in case of an Irretrievable breakdown of marriage.
Such decision of the hon’ble Apex court marks a new procedure, for the consenting parties, to take a decree of divorce from the hon’ble apex court, surpassing the conventional procedures for divorce under the Hindu Marriage Act, 1955.
Divorce
Divorce is one of the most serious social problem in the modern world. Divorce means cessation of matrimonial bond. A divorce puts an end to the marital bond & the parties no longer remain husband & wife. Hence, before getting into the concept of divorce and its implications and provisions related to it, it is necessary to understand what Marriage means and what is its purpose?
Marriage
Almost all the statutes related to marriage an divorce deal with the provisions such as capacity to marriage, solemnisation of marriage and the method and manner of the termination of marriage. However, surprisingly no statute provides for the definition of marriage and none specifies what happens during the subsistence of a marriage. The Hon’ble Supreme Court in its recent judgment in Sivasankaran v. Santhimeenal[1] made an attempt to define ‘marriage’ and stated as follows:
“A marriage is more than a seemingly simple union between two individuals. As a social institution, all marriages have legal, economic, cultural, and religious ramifications. The norms of a marriage and the varying degrees of legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms, and religious dictates. Functionally, marriages are seen as a site for the propagation of social and cultural capital as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social prestige. Families are arranged on the idea of a mutual expectation of support and amity which is meant to be experienced and acknowledged amongst its members. Once this amity breaks apart, the results can be highly devastating and stigmatizing. The primary effects of such breakdown are felt especially by women, who may find it hard to guarantee the same degree of social adjustment and support that they enjoyed while they were married.”
Particularly in Hindu Law marriage is considered as a sacrament. In ancient times the concept of divorce was not known and marriage was considered as a sacred concept which is unbreakable.
Divorce under Hindu Marriage Act,1955
The concept of divorce in Hindu law was introduced by Hindu marriage Act, 1955. The Act defines Divorce as a ‘dissolution of marriage’. Hindu Marriage Act is majorly based on the fault theory in which one of the spouses being aggrieved by the other can approach the Court of Law and seek the remedy of Divorce. However, after the incorporation of Sec.13B it also recognised the mutual consent theory of divorce.
The grounds for divorce are expressly given in Sec. 13 of the Hindu Marriage Act, 1955.
Section 13 of the Hindu marriage act ,1955 expounds multiple grounds on which divorce can be granted, viz;
Section 13(1)- section 13(1) provides 8 grounds. It is available to both husband & wife .
Section 13(1A)- section 13 (1A) provides 2 grounds. It is available to both husband & wife.
Section 13(2)- section 13(2) provides 4 grounds. It is available only to the wife.
Section 13 (B) – divorce by mutual consent.
Section 13 of the Hindu marriage act, 1955 expounds grounds on which contested divorce can be obtained. While Sec. 13B provides fo divorce by mutual consent of both the spouses.
Decree of divorce may be granted on a joint petition by the parties on the condition that the parties are living separately for a period of 1 year or more than one year and they have not been able to live together. However, Sec. 13B (2) lays a condition of waiting period of 6 to 18 months before grant of divorce.
Procedure of waiting period under Sec. 13B(2)
Though this provision of the Hindu Marriage Act,1955 provides that there has to be a waiting period of minimum 6 months before a decree of divorce could be passed after a petition under 13B(1), it can be waived by the Court’s order.
Further, analysing the provisions of sub-section (2) to section 13B the Supreme Court in Manish Goel V. Rohini Goel[2] and Amardeep Singh V. Harveen Kaur[3] has held that it does require a minimum 6 month waiting period after the petition is filed under sec.13B to grant a decree of Divorce. However, at the same time observing its decision in Anil Kumar Jain[4], the court noted that an order of waiving the statutory requirements can indeed be passed only by the Supreme Court in the exercise of its special power under Art.142.
Article 142
Article 142 of the Constitution gives a unique discretionary power to the Hon’ble Supreme Court to do complete justice as it provides that the Supreme Court in the exercise of its jurisdiction can pass such decree or order as necessary for ‘complete justice’ in any case or matter pending before it. Such a decree or order so passed is considered consummate.
Plain reading of the bare Article provides that a decree or order under this provision can be passed in any ‘cause or matter’ and that decree or order shall be for the purpose of ‘doing complete justice’. The provision further provides that such decree or order passed shall be enforceable throughout the country as a law made by the parliament. This provision of the Indian constitution is unique in its essence as it provides for the situations where there might be no law or statute made by any legislature.
In the early years of the evolution of the Indian Constitution this provision was heavily relied upon by the Supreme Court to protect the weaker section of the society and to protect the environment. However, the apex court in Supreme Court Bar Association v Union of India[5], stated that Article 142 can be used only to supplement the law and not to supplant the existing law.
Further, this special power of the Hon’ble Supreme Court has been tested on many occasions and has been explained by the Hon’ble apex court itself through its decisions in a plethora of judgements.
Scope & extent of Article 142
To understand the current implications of Art. 142, a disquisition into the various phases of its evolution and judicial developments through judgements, have to be done. The judgments on the implication of the provision and the powers of the Hon’ble Supreme Court under Art. 142(1) can be divided into phases.
In the early stage of its interpretations as reflected in the judgments of Prem Chand Garg[6] and A.R. Antulay[7], it was observed that the directions issued, exercising power under this provision, should not be in contradiction to any relevant substantive law and is limited to deviation from the rules of procedure only. It was further observed that such orders or directions must not infringe the Fundamental Rights of the individuals.
In the after stage or what could be called a wider approach an 11-Judge Constitution Bench Court in I. C. Golak Nath[8] while dealing with the doctrine of prospective overruling, held that Article142 is couched in such wide and elastic terms that it enables the Court to formulate legal doctrines to meet the ends of justice, and the only limitation that could be drawn upon it is reason, restraint and injustice. That is to say that as long as it is reasoned, not restrained by any law, and it is to curb injustice, any order could be passed. Moreover in Delhi Judicial Service Association[9], the Apex Court again clearly observed that any restriction or prohibition contained in ordinary laws cannot limit the constitutional power given under Art.142 to issue any order or direction to do ‘complete justice’ in any ‘cause or matter’. Such observations give the provision a much wider scope and practically leaves no boundary to the extent of the provision. This, if taken further could even lead to a situation of ‘judicial overreach’ which is against the doctrine of ‘separation of power’ which is a basic structure of the Indian Constitution.
Finally, a moderated approach was taken by the Supreme Court Union Carbide Corporation[10], where it was held that “in exercising powers under Article 142 and in assessing the needs of ‘complete justice’ of a ‘cause’ or ‘matter’, the court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly”. Later, the decision of the Hon’ble Supreme Court, in Supreme Court Bar Association[11], gave a cautious and balanced approach, and the Court opined that Article 142, a constitutional power being curative in nature cannot be controlled by any statutory provision; but this power shall not be exercised ignoring the statutory provisions or directly conflicting with what is expressly provided.
At the same-time, it also observed that a relevant statutory provision governing the subject, should not be ordinarily discarded, except to balance the equities between the disagreeing claims of the parties to “iron out the creases” in a ‘cause or matter’ before it. These observations in what could be called a moderate approach though imposes some restrictions gives scope to the Supreme Court that while exercising its power under Art.142 it can look at and consider the factors of ‘public policy’ and ‘equity’ as well. This gives the Supreme Court wide discretion to exercise its special power under Art.142 in any case, and pass an order deviating from the normal course of the statutory provisions.
Further there is no doubt on the question of granting of divorce by the Hon’ble Supreme Court by exercising its power under Art. 142. Same could be realised through a series of judgements[12] where the Supreme Court has granted decree of divorce while exercising its power under this Article.
Concept of Irretrievable breakdown of marriage
Irretrievable breakdown of marriage though not incorporated in any statute as an expressed ground for divorce, under Hindu Marriage Act,1955 is well recognised by the courts as a ground for divorce. In Sivasankaran vs Santhimeenal[13],the Hon’ble Apex Court has also observed that once the parties to a marriage allege cruelty or dissertation by the other spouse, it apparently only means that the marriage is broken down.
The word ‘breakdown’ in the expression ‘irretrievable breakdown of marriage’ in its ordinary sense means something that has been rendered asunder. Similarly the word ‘irretrievable’ ordinarily indicates something which has been broken to an extent that could not be put together.
The expression ‘irretrievable breakdown of marriage’ means that the spouses have reached a point of no return in their marriage. In other words the mutual expectation of support and amity expected during the subsistence of a marriage disappears and there is no chance of reconciliation.
Judicial trends
In Naveen Kohli V. Neetu Kohli[14], it was held by the Supreme Court that once the marriage has broken down beyond repairs then it is the duty of the court to take notice of the facts & grant divorce. A marriage will be said to be broken down beyond repairs when there has been a long period of continuous separations & there is no possibility of reconciliation between the parties as they do not want to live together anymore. Such a marriage becomes a fiction although supported by a legal tie. The court by refusing to dissolve such marriage causes great pain & suffering to the parties. While observing so, the Hon’ble Court had also recommended the Central Government to consider bringing an amendment and incorporate “irretrievable breakdown of marriage” as ground for divorce under the Hindu Marriage Act, 1955.
At this point it is also necessary to look back in history where the ‘irretrievable breakdown of marriage’ was a subject matter for consideration by the Law Commission of India for the first time in 1978[15]. In its report then the law commission had recommended the incorporation of irretrievable breakdown of marriage as a ground for divorce.
Thereafter, the Law Commission again took up the matter and studied the subject of “irretrievable breakdown of marriage” and through its 217threport reiterated the need to incorporate irretrievable breakdown of marriage as a ground for divorce under Hindu Marriage Act, 1955[16].
Further, in Anil kumar Jain V. Maya Jain[17],it was held that power to grant divorce on a ground which is not mentioned under section 13B of the Hindu marriage Act,1955 lies solely with the Supreme Court. Only the Apex Court can grant divorce on the ground of Irretrievable breakdown of marriage i.e under article 142 of the constitution. Moreover the granting of divorce by the Hon’ble Supreme Court in Munish kakkar v. Nidhi Kakkar[18] and other cases[19]clearly indicates that the apex court has been exercising its power under Art. 142 to grant divorces on the ground of irretrievable breakdown of marriage.
The above judicial trends make clear that the Hon,ble Supreme Court has been granting divorce on the ground of irretrievable breakdown of marriage. Further the decision in Anil Kumar Jain[20] has clearly established that the Supreme Court can grant relief to the parties without even recourse to the grounds or statutory provisions stipulated in Sec.13B of the Hindu Marriage Act,1955.
Conclusion After the disquisitions into the judicial trends of the relevant provisions it becomes clear that the Supreme Court while delivering its judgment in Shilpa Shailesh vs Varun Sreenivasan has only followed the judicial trends by ruling that it can exercise its power under Art. 142 to grant a decree divorce. Moreover, the court focusing upon public policy and equity, has exercised its special discretionary power to surpass the existing provisions expressly mentioned under Hindu marriage Act,1955 by directly granting the decree of divorce to consenting parties in case of Irretrievable breakdown of marriage. Further, the court stressing upon the expression ‘any cause or matter’ has widened the scope of its discretion under Art.142 and taken it a step further by deciding upon and granting such decree in the transfer petition. The decision of the court indicates that it is not in conflict with the established judicial trends rather it only elaborated it by giving more importance to public policy and equity.
[1] Sivasankaran v. Santhimeenal, 2021 SCC OnLine SC 702
[2] 2010 (2) SCR 2010
[3] AIR 2017 SC 4417
[4] Anil kumar Jain v. Maya Jain (2009)10 SCC 415
[5] (1998) 4 SCC 409
[6] Prem Chand Garg v Excise Commissioner U.P , AIR 1963 SC 996
[7] A.R Antulay v. R.S Nayak, (1988) 2 SCC 602
[8] I.C Golaknath v State of Punjab, 1967 SCR(2) 762
[9] Delhi Judicial Services v. State of gujarat, 1991(4) SCC 406
[10] Union Carbide Corp. v. Union of India,1991(4) SCC 584
[11] supra
[12] see Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226; Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73, Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Sivasankaram v. Santhimeenal 2021 SCC Online SC 70
[13] supra
[14] AIR 2006 SC 1675
[15] See Law Commission of India, The Hindu Marriage Act,1955- Irretrievable breakdown of Marriage as a ground of Divorce, Report No.71, 7(April, 1978)
[16] See Law Commission of India, Irretrievable breakdown of Marriage- another ground for Divorce, Report No. 217 30 (March 2009)
[17] supra
[18] (2020) 14 SCC 657
[19] see Munish Kakkar v. Nidhi Kakkar (2020) 14 SCC 657; R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409; Sivasankaran vs. Santhimeenal 2021 SCC OnLine SC 702.
[20] supra
Author: Simran Sinha
Juris Centre 