Supreme Court's Big Order On Divorce, 6-Month Mandatory Waiting Period

On Monday, a constitution or five-judge bench of the Supreme Court held that it can exercise its powers under Article 142 of the Constitution to directly grant a decree of divorce to consenting parties in cases of irretrievable breakdown of marriage. It further held that the mandatory waiting period of six months for divorce through mutual consent can be done away with, subject to conditions.

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'On the ground of irretrievable breakdown of marriage'

"We have held that it is possible for this court to dissolve marriage on the ground of irretrievable breakdown of marriage. That will not contravene the specific or fundamental principles of public policy." LiveLaw reported the Justice SK Kaul-led bench saying.

The Constitution Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari, also laid out how to balance out equities, specifically with regard to maintenance, alimony, and the rights of the children.

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Case that took the Section 142 route

The judgment relates to a 2014 case filed in the top court, titled Shilpa Sailesh vs. Varun Sreenivasan, where the parties sought a divorce under Article 142 of the Indian Constitution. The case was referred to a five-judge bench seven years ago by a Division Bench of Justices Shiva Kirti Singh and R Banumathi (both retired) in a transfer petition. After hearing arguments, the Constitution Bench reserved its judgment on September 29, 2022.

The original issue referred to the Constitution Bench was whether the mandatory waiting period for divorce by mutual consent, as prescribed under Section 13B of the Hindu Marriage Act, could be waived by the Supreme Court, exercising its vast powers under Article 142, in order to dissolve broken-down marriages between consenting couples without referring them to family courts for protracted judicial proceedings to get the decree of separation. However, during the hearing, the Constitution Bench decided to consider the issue of whether marriages could be dissolved on the ground of irretrievable breakdown.

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"Article 142 must be considered in light of the fundamental rights. It should contravene a non-derogable function of the Constitution. Court under the power is empowered to complete justice," the bench said.

Article 142 of the Constitution deals with the enforcement of decrees and orders of the top court to do "complete justice" in any matter pending before it.

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