Read Time: 06 minutes

Synopsis

The Supreme Court on Wednesday observed that it appears that most divorce cases are arising from love marriages.

A bench of Justice BR Gavai and Justice Sanjay Karol was hearing a case transfer petition. The petition was arising out of a matrimonial discord in which the husband had expressed the intention to convert to Christianity. The counsel for the petitioner informed the bench that the marriage was a love marriage.

“Most divorces are arising from love marriages only," Justice BR Gavai stated.

Later on, the bench suggested mediation, but the husband objected to this suggestion.

However, in light of a recent decision that was passed on May 01, 2023, the court stated that it might award divorce without his consent.

As a result, the bench ordered mediation for the married couple.

In a recent judgment, on May 01, 2023, a Constitution Bench of the top court comprising Justices S K Kaul, Sanjiv Khanna, A S Oka, Vikram Nath, and J K Maheshwari said 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 made these observations pertaining to 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".

The court said, “The marriage has irretrievably broken down must be factually determined and firmly established, and several factors must be considered, including the length of time the parties cohabited after marriage, when the parties last cohabited, and the nature of allegations made by the parties against each other and their family members.”

The bench also said, “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.”

The bench also emphasized the provision 13-B(2) of the Hindu Marriage Act, 1955 in relation to the mandatory cooling-off period of six months between filing the first and second motions.

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, the top court said.

"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 the divorce," the court said.