The Supreme Court can grant divorce on the ground of “irretrievable breakdown of marriage”, a constitution bench ruled on Monday.
This is not recognised in the divorce laws but the bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari said that the Supreme Court has the liberty to invoke Article 142 of the Constitution in such matters.
Article 142 gives discretionary powers to the Supreme Court to pass orders “necessary for doing complete justice in any cause or matter pending before it”.
In its order, the court also held that the mandatory waiting period of six months for divorce through mutual consent can be done away with, subject to conditions.
The Supreme Court bench was hearing a plea on whether the six-month waiting period under the Hindu Marriage Act was dispensable. However during the hearing, the court decided to deliberate upon whether “irretrievable breakdown of marriage” should be made one of the grounds for divorce.
Justice Khanna said that the court has specified the factors which would amount to “irretrievable breakdown”.
In the judgement, the court said that it 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”.
The court will also consider factors like period of time the couple had cohabited after marriage, when did they last cohabit, the nature of allegations made by the couple against each other and their family members.
The other factors are the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship 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.
The court also said that the period of separation between the couples should be sufficiently long, and anything above six years or more will be a relevant factor in granting divorce.
However, the bench also cautioned that the economic and social status of the couple will also be considered while evaluating the factors. This includes the couple’s educational qualifications, their age and whether they have any children.
The court will also consider 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 judgement said.
The Constitution bench said that the courts must not encourage matrimonial litigation, as prolongation of divorce cases is detrimental to both the partners in a marriage who lose their young age in multiple litigations.
“Thus, adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end,” the court said.
It added: “The courts only have to inquire and ensure that the settlement between the parties is achieved without pressure, force, coercion, fraud, misrepresentation, or undue influence, and that the consent is indeed sought by free will and choice, and the autonomy of the parties is not compromised.”