The Supreme Court of India, in a recent judgement related to the matter of divorce by mutual consent has held that it has the power to give judgement without being bound by the procedural requirements when it comes ‘justice’ under Article 142(1) of the Constitution of India. In the present case, the procedural requirement waived off is the mandatory waiting period under Section 13(B) of Hindu Marriage Act, 1955 which the couple seeking divorce by mutual consent. However, this discretion, the court held, must be exercised with caution considering the duration for which parties were married but are staying apart, the time already spent in litigation, scope of mediation/conciliation in marriage, etc. 

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Another important aspect which the court considered and held was that whether the court exercising the power under Article 142(1) can grant a divorce decree on the ground of irretrievable breakdown of marriage in spite of opposition by one of the spouses. This question is also answered in affirmative by the Supreme Court. So, when the court is satisfied that the facts established signifies that ‘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 may grant the divorce decree.  

ISSUES

I)The scope and ambit of power and jurisdiction of this court under Article 142(1) of the Constitution of India; 

II)Secondly, in view of, and depending upon the findings of this bench on the first question, whether this Court, can exercise power under Article 142(1) of the Constitution of India, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act.

III)The third issue, which is of considerable importance, is whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer.

ISSUE I 

Article 142(1) of the Constitution of India, which gives wide and capacious power to the Supreme Court to do ‘complete justice’ in any cause or matter. Here, to do ‘complete justice’ is the most important consideration. The court considering several precedents finally held that as long as ‘complete justice’ is achieved without violation of any fundamental principles of general or specific public policy, the exercise of the power and discretion under Article 142(1) is valid.

ISSUE II

The provisions of Hindu Marriage Act ,1955 provide that couple being married for over a year may apply to the court for divorce by mutual consent. The conditions for obtaining decree for divorce by mutual consent include-

(a) the parties have been living separately for a period of one year or more before presentation of the petition;

(b) they have not been able to live together; and

(c) they have mutually agreed that the marriage should be dissolved.

On satisfaction of the above-mentioned conditions the parties can jointly file a petition in the court for divorce following which they are required under Section 13-B (2) to follow a waiting period of not less than six months and not more than 18 months. This time gap is provided for so that the couple can revisit their decision and attempt to reconcile. The couple may also withdraw their petition within this period. Meanwhile, on a second motion by the parties, not earlier than 6 months and not later then 18 months from the first motion, the court may, on inquiry and satisfaction of the facts, grant a decree for divorce.

This time gap mentioned above is a procedural requirement and the Hon’ble Supreme Court has held that the power of it to waive off a procedural requirement is within the power of it under Article 142(1). However, such power is discretionary and not mandatory. It is a discretion to be exercised cautiously in the interest of justice. But, ‘extraordinary care and caution must be exercised, and unless it is shown that exceptional and special circumstances exist to demonstrate that substantial and grave injustice has been rendered, this Court should not review/interfere with the decision appealed against.’ 

The court clearly stated ‘grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties.’

ISSUE III

On the third issue, as to whether dissolving marriage on the ground of irretrievable breakdown of marriage could be done in spite of opposition by one of the spouses, the court answered in affirmative. Relying on the decision in n Munish Kakkar v. Nidhi Kakkar and R. Srinivas Kumar v. R. Shametha, the court observed that consent of both the parties was not a necessity for exercise of powers under Article 142(1) of the Constitution of India.

The court while elaborating of the scope of cruelty which is ground of divorce under the Hindu Marriage Act ,1955, the court observed that cruelty may be mental or physical and what amounts to cruelty depends upon the economic, social and various other factors. What is and what is not cruelty evolves with time. It may also be noted that a two-judge bench held that prolonging a marriage irretrievably broken down is akin to cruelty.

Additionally, the Supreme Court also held that the parties should not approach the Supreme Court by filing a writ petition under Article 32 on the round of irretrievable breakdown of marriage as the relief under Article 32 is available only incase of infringement of any right under Part III of the Constitution and the proof of the infringement thereof.  

For detail judgment click the link  Shilpa Shailesh v Varun Sreenivasan