The Supreme Court has declared that it has the authority under Article 142(1) to dissolve a marriage on the grounds of irretrievable breakdown without referring the parties to family court for a waiting period of 6-18 months for mutual consent divorce.
What exactly is Article 142?
Article 142, titled ‘Enforcement of Supreme Court decrees and orders and orders as to discovery, etc.,’ contains two clauses:
[1] Article 142(1)
- In the exercise of its authority, the Supreme Court may issue any decree or order necessary to complete justice in any case or matter before it.
- Any such decree or order shall be enforceable throughout the territory of India.
- It may be in the manner prescribed by or under any statute passed by Parliament, or, if no such provision is made, in the manner prescribed by the President by order.
[2] Article 142(2)
- The Supreme Court shall have complete authority to issue any order necessary to secure any person’s attendance, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
The Origins of Article 142
- Article 142 was actually numbered as Article 118 when a draught Constitution was developed by the drafting committee and presented to the Constituent Assembly.
- It was presented to the Constituent Assembly for debate on May 27, 1949, but was adopted the same day without debate.
- This could be because everyone agreed that in order to preserve judicial independence, the country’s top court should have plenary power to do perfect justice.
Article 142 in Divorce Cases
(1) Current Divorce Process
- The Hindu Marriage Act includes a provision for “divorce by mutual consent.”
- Both parties must file a petition in district court, stating that they have been living apart for at least a year and jointly agree to dissolve the marriage.
- The parties must then file a second motion with the court within six months of filing the first petition and within 18 months of the same day.
(2) Factors considered for irretrievable breakdown
The Court must be convinced that the marriage is “totally unworkable, emotionally dead, and beyond salvation.” The following factors can be considered:
- The period of time that the parties had cohabited after marriage
- When the parties last lived together
- The nature of the parties’ charges against each other and their family members
- Orders issued in court procedures on a regular basis have a cumulative impact on the personal connection.
- Whether or not a court or mediation was used to resolve the disagreements, and when the last attempt was made.
- The separation interval should be lengthy enough, and anything longer than six years will be considered.
- The elements must be evaluated based on the parties’ economic and social standing, including their educational credentials, if they have children, their age, and whether the spouse and children are dependents.
Source: https://indianexpress.com/article/explained/explained-law/supreme-court-divorce-explained-ruling-8585167/