Supreme Court says it has power to grant divorce to Hindu couples for "irretrievable breakdown" of marriage

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While the Court has acceded to its extraordinary jurisdiction under Article 142 of the Constitution while granting a divorce over ground of "irretrievable breakdown of marriage", it has also expressed the need to practice caution while exercising it

The Supreme Court has held that it has the power to grant divorce on the ground of “irretrievable breakdown” of marriage.

Top Court applied the principle in Owens Vs. Owens, which is a Supreme Court of United Kingdom judgment to point out that it is applying the "fault theory". According to this judgment fault theory in divorce cases states that even two perfectly gentle and pleasant individuals having incompatible and clashing personalities can have a miserable and morose married life. This means that instead of apportioning blame to ascertain which spouse is the bad apple for a broken marriage, the court should reflect on the effect of the spouse’s behaviour, rather than the behaviour itself which may be making it unreasonable to expect the other spouse to cohabit.

A Constitution Bench, comprising Justices S K Kaul, Sanjiv Khanna, A S Oka, Vikram Nath, and J K Maheshwari said such that an exercise of power under Article 142 of the Constitution “will not contravene the principles of public policy” and that it has the power to do so. 

Court has thus made these observations in the Hindu laws governing marriage, while stating that it will not be going into the intent and objective of the Hindu Marriage Act, 1955 so as to bar itself from dissolving a "broken and shattered marriage".

Court then went on to stipulate some case laws in which it had exercised its extraordinary jurisdiction to grant divorce to establish that granting divorce under the ground of "irretrievable breakdown" of marriage is a matter of discretion which must be exercised with great "care and caution".

"It is obvious that this Court 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. That the marriage has irretrievably broken down is to be factually determined and firmly established," Supreme Court said.

Top court also highlighted provision 13-B(2) of the Hindu Marriage Act, 1955 vis-a-vis the mandatory cooling-off period of six months between filing first and second motions and stated that even though its objective is so that couple has time to introspect and consider the decision, there are cases where divorce is inevitable. Thus, it has the power to waive off the mandatory time requirement.

"The object of the cooling off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out. Therefore, once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant divorce," the court said, adding that the Supreme Court while exercising its extraordinary jurisdiction under Article 142 of the Constitution while waiving off the waiting period of 6 months between a couple will assist and aid the cause of justice.

Towards the end, the Court considered it imperative to examine a few decisions in which it had refused to exercise jurisdiction under Article 142(1) to state that "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". Thus the court threw a word of caution while applying the principle of irretrievable breakdown of marriage liberally.

The constitution bench also clarified that a party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage directly from this Court. "The parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution of India, as the case may be," said the bench

Case Title: Shilpa Sailesh Vs. Varun Sreenivasan
Statute: Hindu Marriage Act, 1955