SC on divorce: Marriage can be dissolved on the ground of ‘irretrievable breakdown’

The Supreme Court on Monday ruled that a marriage can be dissolved on the ground of “irretrievable breakdown” of the relationship. The apex court has said that it can exercise its special power under Article 143 of the Constitution to do away with the mandatory waiting period of six months for divorce by mutual consent subject to certain conditions.

A five-judge constitution bench comprising Justices SK Kaul, Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari ruled that the six-month waiting period prescribed under the Hindu Marriage Act can be waived.

The top court gave its verdict on a bunch of petitions regarding its wide powers under Article 142 of the Constitution to dissolve marriages that have separated without requiring the parties to go through lengthy legal proceedings in family courts.

The apex court had completed the hearing on September 29, 2022 and reserved its verdict.

While reserving its order, the court observed that social changes may take some time and implementing new laws may be easier than persuading the society to adopt them. The apex court also acknowledged the important role of families in marriages in India.

What does the law say?

The Supreme Court considered whether its comprehensive authority under Article 142 is constrained in situations where a marriage is held by the court to have broken down irreparably, but one party is unwilling to consent to divorce.

Earlier, constitutional benches were tasked with addressing two questions: whether the exercise of jurisdiction by the Supreme Court under Article 142 should be avoided altogether, or if the exercise of such authority should be allowed on a case-by-case basis. should be evaluated on that basis.

General guidelines for exercising authority under Article 142 of the Constitution to dissolve marriage between interested parties without directing the Family Court to observe the mandatory waiting period specified in Section 13-B of the Hindu Marriage Act was related to ,

“We hold that another question which would need to be considered would be whether the power under Article 142 of the Constitution of India is in any way hindered where, in the opinion of the court, there is an irreparable breakdown of marriage, But one of these top courts had said on September 20 that the parties were not agreeing to the terms.

For more than two decades, the Supreme Court has used its wide powers under Article 142 to dissolve marriages that are deemed irretrievably broken. However, in September last year, the court had decided to review whether it can dissolve marriages between separated couples without the consent of both the parties.