A narrow new path to a quick divorce

The Supreme Court’s decision that it can dissolve a marriage in certain circumstances, including on the grounds of irretrievable breakdown of relations, exercising its powers under Article 142, is an important addition to divorce jurisprudence in India. Article 142 gives the court special powers to issue orders that it deems necessary to do complete justice in any cause or matter.

A five-judge bench said it can grant a divorce without sending the parties to a family court, where there is usually a requirement to wait for 6-18 months to obtain a decision by mutual consent. It has also said that it can rule on a case even when one of the parties isn’t agreeable to a divorce. This is a departure from the norm based on the fault of a partner, laid down in the 1955 Hindu Marriage Act, which has been generally followed in divorce cases. Under this, a marriage can be dissolved only if either party has committed a matrimonial offence. “Irretrievable breakdown of marriage” is not a ground for divorce under it.

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The court’s thinking is important because of its acceptance of the possibility that divorce can be considered in situations other than when one partner finds fault with the other’s conduct, or when allegations of violence, fraud or cruelty are raised. It has tried to envisage situations that may arise with changes in social life. Such changes have already taken place and the court’s order may be taken as recognition of the need for the law to consider them. In individual cases, courts have accepted divorce in special circumstances, but it is now that it has formed a framework for that.

At the same time, the court has sounded a note of caution and laid down a set of guidelines to be followed when considering such cases. They include the period of time of cohabitation, the nature of allegations, the number of attempts to settle disputes, the period of separation, etc. The court will ensure that the mutual agreement is not under coercion and that the matter of divorce would not be a matter of right but a discretion which is to be “exercised with great care.’’

The caution and the guidelines are important because divorce has been used as a weapon against women in an unequal society. It should also be noted that only the Supreme Court can grant divorces in accordance with the principle it has propounded. Family courts cannot take decisions on divorce invoking the new doctrine. But the judgement has expanded the scope of divorce jurisprudence in the country.