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Explained: SC’s use of extraordinary powers in the Constitution to allow a divorce

Currently, Hindu marriage law does not include "irretrievable breakdown of marriage" as a ground for divorce. However, the apex court in a number of cases has provided the said relief using its extraordinary powers under Article 142 that allow it to do "complete justice".

Written by Om Marathe | New Delhi | Updated: December 26, 2019 7:46:08 pm
The Hindu Marriage Act, 1955, lays down the law for divorce, which applies to Hindus, Buddhists, Jains, and Sikhs.

Last week, the Supreme Court used extraordinary powers under Article 142 of the Constitution to grant divorce in a case of “irretrievable breakdown of marriage”.

Currently, Hindu marriage law does not include “irretrievable breakdown of marriage” as a ground for divorce. However, the apex court in a number of cases has provided the said relief using its extraordinary powers that allow it to do “complete justice”.

Grounds for divorce under Hindu law

The Hindu Marriage Act, 1955, lays down the law for divorce, which applies to Hindus, Buddhists, Jains, and Sikhs.

Under Section 13 of the Act, the grounds for divorce include: “voluntary sexual intercourse with any person other than his or her spouse”; “cruelty”; desertion “for a continuous period of not less than two years immediately preceding the presentation of the petition”; “ceas(ing) to be a Hindu by conversion to another religion”; and being “incurably of unsound mind”.

In addition, Section 13B provides for “divorce by mutual consent”.

Section 27 of The Special Marriage Act, 1954 provides the grounds for grant of divorce in the case of marriages solemnised under that Act.

However, neither of the two Acts provide for “irretrievable breakdown of marriage” as a ground for divorce.

Irretrievable breakdown of marriage

In its order passed on December 17, a Bench of Justices Sanjay Kishan Kaul and K M Joseph said: “We may note that in a recent judgment of this Court, in ‘R. Srinivas Kumar v. R. Shametha’, to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised… in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably.”

In the present case, the court said that it believed that “not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties”, and “the sooner this comes to an end, the better it would be, for both the parties”.

Article 142, the court said, “provide(s) a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision in the present case.”

The Bench noted that “there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise. There is, thus, recognition of the futility of a completely failed marriage being continued only on paper”.

It added that “In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it.”

The Law Commission of India has twice recommended that “irretrievable breakdown” of marriage be included as a new ground for granting divorce to Hindus under the provisions of the Hindu Marriage Act and the Special Marriage Act.

The Commission first suggested an amendment in 1978 in its 71st report, and in 2009 in the 217th report.

Article 142 of the Constitution

Under Article 142(1), “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe”.

The provision vests sweeping powers in the Supreme Court for the end of ensuring “complete justice” and is usually used in cases involving human rights and environmental protection. Last month, it was also used during the Ayodhya judgment, making the first such case where it was invoked for a civil dispute over an immovable property that involved private parties.

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