Supreme Court says it can dissolve marriages that have broken down irretrievably

A five-judge Constitution bench headed by Justice S K Kaul said the apex court is empowered under Article 142 of the Constitution to do complete justice

The Supreme Court on Monday declared that it can use its extraordinary power under Article 142 (1) of the Constitution to dissolve marriages that are irretrievably broken down, by dispensing with the procedure and waiting period prescribed under the Hindu Marriage Act.

A five-judge Constitution bench led by Justice Sanjay Kishan Kaul, however, clarified that grant of divorce on the ground of irretrievable breakdown of marriage by the SC is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties.

"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," the bench said.

In cases where the marriage has been wrecked beyond the hope of salvage, public interest lies in recognising the real fact. No spouse can be compelled to resume life with a consort, and as such, nothing is gained by keeping the parties tied forever to a marriage which has, in fact, ceased to exist, the bench added.

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The bench, also comprising Justices Sanjiv Khanna, Abhay S Oka, Vikram Nath and J K Maheshwari, answered legal questions raised following the reference made in 2016 by a three-judge bench.

In the unanimous judgement on behalf of the bench, Justice Khanna wrote that the Supreme Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy.

"While deciding whether to exercise discretion, this court must consider the substantive provisions as enacted and not ignore the same, albeit this court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a ‘cause or matter’," the bench said.

The court also held that the top court can exercise of power under Article 142(1) of the Constitution, quash and set aside other proceedings and orders, including criminal proceedings filed by the parties against each other.

"In exercise of power under Article 142(1) of the Constitution, this court has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties," the bench said.

The court explained that the discretion has to be exercised on the basis of the factual matrix in the particular case, evaluated on objective criteria and factors, without ignoring the basic intent behind the statutory provisions.

Once the condition for waiting period, i.e. gap of one and a half year from the date of separation is fulfilled, it can be safely said that the parties had time to ponder, reflect and take a conscious decision on whether they should really put the marriage to end for all times to come, the bench added.

The bench also clarified the parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution for dissolution of marriage.

With regard to Article 142(1) of the Constitution, the bench said it is significant since the provision gives wide and capacious power to the Supreme Court to do ‘complete justice’ in any ‘cause or matter’ since the judgment delivered by this court ends the litigation between the parties. "Given the expansive amplitude of power under Article 142(1) of the Constitution, the exercise of power must be legitimate, and clamours for caution, mindful of the danger that arises from adopting an individualistic approach as to the exercise of the Constitutional power," it said.