Irretrievable breakdown of marriage: Supreme Court’s power to grant divorce under Article 142 under scrutiny

Senior counsel made diverse submissions before the Constitution bench on the scope of power under Article 142 of the Constitution to grant divorce on the ground of irretrievable breakdown of marriage. 

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A constitution bench of the Supreme Court has reserved a judgment on the issue of its plenary power under Article 142 of the Constitution to dissolve a marriage where there is an irretrievable breakdown of it in the opinion of the court, but one of the parties is not consenting to the terms.

The bench would also be deciding on two more issues namely: “What could be the broad parameters for exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the family court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act, and whether the exercise of such jurisdiction under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case?”

The bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari heard senior advocates Indira Jaising, V. Giri, Dushyant Dave and Meenakshi Arora, who were appointed as amici curiae by a division bench of the court in 2016 while making reference to the Constitution bench.

Jaising, Giri and Arora took a common stand that the Supreme Court has the power to dissolve a marriage on the ground of its irretrievable breakdown, while Dave contended that in no circumstances can the court dissolve a marriage under Article 142.

Submissions advanced by Jaising

Jaising addressed the issue of the power of the court to grant divorce on account of irretrievable breakdown of a marriage. She contended that not only does the Supreme Court have the power to grant divorce on the ground of the irretrievable breakdown of a marriage, the same power should also be read into Section 151 of the Civil Procedure Code (‘CPC’), which saves the inherent power of civil courts to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. She submitted that the ’causes’ for the irretrievable breakdown of a marriage are referable to Section 13 of the Hindu Marriage Act, which provides for divorce on the ground of cruelty, desertion or adultery. Jaising called them ‘proxy indicators’ for the irretrievable breakdown of marriage .

Jaising urged the court to accept the word ‘breakdown’ in the expression ‘irretrievable breakdown of marriage’ in its ordinary meaning, that is, something that has been rendered asunder. She argued that a multiplicity of factors can lead to the breakdown of marriage including inter alia cruelty, adultery and desertion by one or both parties to the marriage. Explaining it further, she contended that the “mutual expectation of support and amity” which is expected during the subsistence of marriage disappear, which in turn lead to “devastating and stigmatizing” circumstances.

She added that in order to determine whether the parties can return to the marriage, it must be attempted to reconcile the parties. She referred to Section 9 of the Family Courts Act, Order 32A, Rule 3 of the CPC; Section 23(2) of the Hindu Marriage Act; Section 89 of the CPC which cast a duty on the court to attempt to reconcile between the parties. She contended that the public policy would equally require that if a stage of ‘irretrievable breakdown of marriage’ has been reached, the marriage should no longer be kept together and a decree of divorce be granted in the interest of both parties.

Jaising cited the decision of the Supreme Court in V. Bhagat versus D. Bhagat (1993) to point out that the court had granted a divorce on the basis of pleadings on both sides, which were significantly grave in nature. While the husband called his wife an adulteress, the wife called the husband a lunatic. In this case, the court had granted a divorce on the ground of cruelty but also held that the allegations against the wife were not proved.

Justice Oka questioned Jaising that if the court holds that it can grant divorce under Article 142 for the irretrievable breakdown of marriage, would that not mean that parties would be coming to the Supreme Court directly seeking divorce on that ground? Responding to the query, Jaising replied that she was not arguing to allow parties to come directly to the Supreme Court. She added that there should be a ‘reasonable’ inquiry into the causes of the irretrievable breakdown of the marriage. Justice Kaul intervened to say that such inquiry may be by either the family court or the high court. Jaising added such an enquiry must be guided by the preponderance of probabilities not beyond reasonable doubt, which is a principle followed in criminal law.

Jaising also highlighted how the old law in the United Kingdom provided factors such adultery, behaviour in a manner in which the petitioner cannot reasonably be expected to live with the respondent, desertion for at least two years, parties living apart for at least two years, the parties to the marriage having lived apart for a continuous period of at least five years immediately preceding the presentation of the petition, were all to be taken into consideration while deciding whether the marriage had irretrievably broken down.

With the latest amendment in the U.K., these factors have now been removed. Now the parties may apply to the court for a “divorce order” which dissolves the marriage on the ground that the marriage has broken down irretrievably. The court dealing with an application under the provision must— (a) take the statement to be conclusive evidence that the marriage has broken down irretrievably, and (b) make a divorce order.

Jaising also contended that the right to form intimate associations is a part of the freedom to form associations under Article 19(1)(c) of the Constitution. Such a right to enter into an association has an analogous right to leave the said association without State interference. To deny the right to divorce on the ground of irretrievable breakdown of marriage would be an unreasonable restriction on the right to personal liberty and the right to exit a voluntary intimate association.

Jaising urged the court that before such decree for divorce is granted on account of the irretrievable breakdown of marriage, certain safeguards for the parties to the marriage – in particular, the wife – are needed to be ensured by the court as follows:

  1.  A final attempt is made to reconcile the marriage.
  2.  A determination is made that the marriage has irretrievably broken down.
  3. Adequate financial provision, more particularly for the wife, which is just, fair and equitable, having regard to the various factors such as housing arrangements for the divorced wife and children, if any. Financial arrangements must be consistent with standard of living to which the husband is accustomed.
  4. Welfare of children, including their housing, education, provision for marriage, medical expenses, entertainment, and extra-curricular activities, among other things.
  5.  Custody of the children, if such custody is not mutually agreed to, in the best interest of the children.
  6. That no blame is attributed to either party, as a result of the decree of divorce, which may impact future civil or criminal proceedings.

Cooling-off period

Giri submitted that the power of the Supreme Court under Article 142 is always exercised ex debito justitiae to do complete justice between the parties. He submitted that under Article 142, the Supreme Court could, in appropriate cases, direct the cooling period of six months to be reduced or waived by declaring the dissolution of marriage to come into effect immediately provided the parties have already expressed their consent for dissolution or do so in an appropriate manner before the Supreme Court. He added that such an exercise of power does not violate any substantive provision of the law. He, however, submitted that the power to waive the cooling off period should not be conferred upon the trial court. He contended that the court invokes its power under Article 142 because the parties have been litigating for a long time. Justice Oka referred to the decision of the Supreme Court in Amardeep Singh versus Harveer Kaur (2017), to make the point that the power to relax the cooling-off period is not a blanket one.

On the question as to whether there is any impediment for the Supreme Court, in the exercise of its powers under Article 142 to grant a decree of dissolution of marriage in cases where there is an irretrievable breakdown of marriage and one of the parties does not consent to a dissolution, Giri submitted that it may have to be approached from the angle of whether there is any specific statutory impediment in the court doing so. There does not seem to be one, he said.

Advocate Amol Chitale, who was appearing for intervener, submitted that in Amardeep Singh, the Supreme Court held a six-month cooling-off period to not be mandatory. Once a provision of law is held to be directory, it can be followed by any court as such. He added that in the same very judgment, the parameters for waiving the cooling-off period have been laid down.

Senior advocate V. Mohana submitted that the Supreme Court also exercises parens patriae jurisdiction, and that it has to take care of the interest of the children of the marriage as also the interest of the family. She added that the irretrievable breakdown of marriage is not a ground for divorce as such; it is part of bundles of grounds referable in section 13 of the Hindu Marriage Act. Mohana countered the submission by Giri that the power to relax the cooling-off period should not be conferred on the trial court. She submitted that the provision would become redundant if the power is limited to the Supreme Court under Article 142.

Senior advocate Kapil Sibal supported the exercise of power under Article 142. He, however, submitted that the issue of maintenance and custody should be kept separate while considering the issue of irretrievable breakdown of the marriage. He also submitted that the family court prima facie could say on the basis of affidavits that the marriage has broken down irretrievably, and then the matter may come to the high court and the Supreme Court. He noted that when the process to obtain divorce is prolonged, it breaches the rights granted by Article 21 of the Constitution. When Sibal again said maintenance is a separate issue, Justice Khanna remarked that the right to maintenance is equally important.

Self-contained code

Dave took a different stand in the matter. He submitted that in no circumstances, whether the divorce is mutual or otherwise, can the court grant divorce under Article 142. He submitted that the power under Article 142 is not independent, and that tt can be invoked in the jurisdiction under Articles 132133, and 136, among others, of the Constitution. Dave argued that the irretrievable breakdown of marriage does not violate the fundamental right under Article 21.

His argument was that the Hindu Marriage Act is a self-contained code, and divorce, if any, must be as per the procedure prescribed under the Act. He submitted that the family as an institution is dying every day. “Are marriages so casual?”, Dave asked.

Arora countered that Article 142 confers the power of equity and good conscience upon the Supreme Court; hence, its jurisdiction is not fettered by statutory constraints.