New Delhi: The Supreme Court on Monday ruled that it can invoke Article 142 of the Constitution to grant divorce to a couple on the ground of “irretrievable breakdown of marriage”.
A five-judge bench headed by Justice Sanjay Kishan Kaul said it would include both situations – where the couple wants to separate by mutual consent as well as where one of the two partners seeks divorce on the ground that It’s hard to break up there. marriage, while the other opposes it. Justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari were the other judges of the constitution bench.
“It is clear that this Court must be fully convinced and satisfied that the marriage is completely impractical, emotionally dead and beyond salvation and, therefore, dissolution of the 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,” the Information reports.
The judgment is significant as irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act (HMA), in a case where judicial separation is opposed by one of the partners.
In cases where divorce is sought by mutual consent by both parties, the HMA prescribes a ‘cooling-off period’ of six months between the filing of two motions for divorce—the first and the second. A petition for divorce by mutual consent can be filed jointly by both the partners only after one year of separation. The trial court hearing the case can proceed with the case only after the second motion for divorce is filed.
However, Monday’s judgment scraps the six-month waiting time between first and second proposal for divorce and holds that the apex court can allow judicial separation under Article 142 of the Constitution, if it is deemed to have that the couple’s marriage has irreversibly broken down. However, this discretion should be exercised in a particular case on the basis of factual matrix, which should be assessed on objective criteria and factors.
Article 142 of the Constitution confers extraordinary powers on the apex court and empowers it to give priority to equity over law for the purpose of “complete justice” in a case.
Monday’s judgment is an official pronouncement on the legal question whether the apex court can exercise its jurisdiction under Article 142 in matrimonial disputes.
The apex court had in the past intervened to allow judicial separation under Article 142 in contentious matrimonial cases. However, due to conflicting judgments on the subject, the matter was referred to a Constitution Bench in 2010, which took up the issues in 2014. ,
Holding that there is a difference between the existence of a power and the exercise of that power, the five-judge bench exemplified factors to be taken for determining irreparable breakdown of marriage.
However, it said that neither of the parties can directly approach the top court under Article 32 to seek divorce on this ground, as the provision of judicial separation on the ground of irretrievable breakdown of marriage by the top court is applicable in any case. Not there. is correct, but discretion must be exercised with “great care and caution” so as to do “complete justice” to both parties.
The bench said that it is not possible to adopt an ultra-technical approach in cases where the breakdown of marriage is irreparable, as it may be counterproductive as the pendency itself causes pain, suffering and harassment. It is the duty of the Court to ensure that matrimonial matters are resolved amicably to put an end to pain, suffering and agony.
Article 142 should be enshrined and regulated
Citing Article 142 of the Indian Constitution, the court said the provision turns “equity law abiding by law” on its head. But, like all powers under the Constitution of India, the power under this too must be “vested and regulated”.
Any relief based on equity must not override the original mandate of the law on grounds of underlying fundamental general and specific issues of public policy. The fundamental general terms of public policy refer to fundamental rights, secularism, federalism and other basic features of the Constitution of India.
Subject to this limitation, the court said, the SC can mold the relief under Article 142, considering the particular facts and circumstances of the case.
“Doing ‘complete justice’ is the supreme idea and guiding spirit of Article 142(1) of the Constitution of India,” the court said.
The expression ‘ends of justice’ refers to the best interest of the public within the four corners of law, although courts are not empowered to act contrary to procedure on a particular aspect of law as provided in the Code of Civil Procedure (CPC). and Criminal Procedure Code (CrPC).
But the CPC and CrPC should not be read as “limiting or otherwise affecting the inherent power of the civil court and the High Court” to pass orders necessary for the “ends of justice” or to prevent abuse of process. Of the court
While it cannot supersede substantive law by creating a new edifice where none previously existed, or by ignoring clear statutory legal provisions, it is a problem-solver in unclear areas, the court said.
As matrimonial litigation leads to many affairs, the cooling-off period gives rise to misery and pain.
Talking about the concept and history of divorce by mutual consent, the court said that the legislative intent behind including a period of six months between the first and second motion divorce is that the couple/party have time to introspect and decide to separate. But there must be time to think. before moving the second proposal.”
But the court noted that there are cases of “extraordinary hardship”, “where after some years of acrimonious litigation and long agony, the parties, with a view to making a fresh start, jointly pray to the court for dissolution of the marriage”. , and demand exemption. About the need to introduce another proposal.”
Due to irreconcilable differences, allegations and slander leveled against each other and family members, and multiple litigations including criminal cases in some cases, it is impossible to continue the marital relationship, the court said.
The court said that divorce is inevitable in such situations and the six-month cooling-off period gives rise to suffering and pain without any gain and benefit. It is mentioned that there are cases where the object and purpose behind the period of six months, which is to safeguard against hasty and hasty decision, acts as a hindrance in settlement.
“Many a times, the payment of alimony and permanent lump sum maintenance gets delayed while anxiety and suspicion prevails. Here, the process must give way to a greater public and personal interest of the parties in bringing an end to the litigation(s), by passing a formal decree of divorce, and inflicting pain and sorrow, because the marriage in fact ended long ago. happened. ,” the court said.
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past decisions
The Constitution Bench considered earlier judgments in which the apex court passed a decree of divorce without alleging or asking the parties to bring a joint motion before the trial court.
In such cases, the SC has also dealt with ancillary proceedings, both civil and criminal, to settle matrimonial disputes.
“The parties may mutually agree to dissolve the marriage, although on many occasions they compromise, often through mediation or when prompted by the court,” it said, referring to compromise in matrimonial matters, and not litigation. , there is a better way. Dispute resolution.
The court said that by exercising its power under Article 142 of the Constitution, the apex court aids and aides justice. This is because matrimonial disputes lead to many legal proceedings. Compromise in even one of them ends all other related matters.
However, to achieve this, both the parties will have to file separate applications in multiple courts seeking appropriate relief and closure. This, the Supreme Court said, puts a burden on the courts in the form of listing, paper work, compliance and formalities, apart from the litigants bearing heavy costs.
factors to be evaluated
Holding that the apex court should exercise its “seemingly unfettered” power under Article 142 on the basis of fundamental considerations of general and specific public policy, the constitution bench said that in order to do “complete justice” to the parties Departure from the above process is necessary.
Therefore, the court said, it must first be ascertained whether the parties have entered into a genuine agreement of their own free will without any coercion or coercion, taking care of alimony, if any, maintenance and custody of children etc.
“In our opinion, Section 13-B of the Hindu Marriage (Mutual Consent) Act does not impose any bar on the powers of this Court to grant a decree of divorce by mutual consent on a joint application, when the basic conditions of the Section have been fulfilled And the court, after referring to the factors mentioned above, is convinced and is of the opinion that a decree of divorce should be granted,” the court said.
It outlined certain factors that would indicate the irreparable breakdown of a marriage, so that divorce was permitted between consenting parties. These factors include the length of time the parties cohabited after marriage; when the parties last cohabited; the nature of the allegations leveled by the parties against each other and their family members; orders passed in legal proceedings from time to time, and their cumulative effect on personal relationships; whether, and how many attempts were made to settle the disputes through court intervention or arbitration, and when was the last attempt made, etc. And the period of separation must be sufficiently long, and anything more than six years or more One would be the contextual factor.
These factors, the court explained, have to be assessed keeping in view the economic and social status of the parties and whether they have any children, their age, educational qualification and whether the other spouse has dependents.
(Editing by Anumeha Saxena)
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