Invoking special powers under Article 142 of the Constitution, the Supreme Court on Monday said that it can a decree of divorce to consenting parties in case of an 'irretrievable breakdown' of marriage in the Shilpa Sailesh v. Varun Sreenivasan case.
A Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari pronounced the verdict stating the 6-month waiting period under the Hindu Marriage Act can be done away with.
"Article 142 must be considered in light of the fundamental rights. It should contravene a non-derogable function of the Constitution. Court under the power is empowered to complete justice," the Bench said, as reported by Bar and Bench.
Article 142 of the Constitution deals with the enforcement of decrees and orders of the apex court to do "complete justice" in any matter pending before it.
Justice Khanna said that the powers of Article 142 must be exercised based on the fundamentals of public policy. He added, "We have held that this court can dissolve the marriage on the ground of irretrievable breakdown of the marriage. We have also laid down factors which can determine when there will be an irretrievable breakdown of marriage," according to LiveLaw.
The judgment followed a batch of five petitions seeking the apex court's sweeping power to dissolve a marriage without referring the matter to the family courts where there was a need to follow a six-month mandatory waiting period under Section 13-B of the Hindu Marriage Act.
Justice Khanna delivered the verdict on behalf of the bench which had reserved its judgement on September 29, 2022 on the petitions including the lead one filed by one Shilpa Sailesh way back in 2014. The apex court had acknowledged the large role a family plays in marriages in India.
Two questions, including whether the exercise of such jurisdiction by the SC 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, were earlier referred to the Constitution bench.
One of the questions referred to it is what could be the broad parameters for the exercise of powers under Article 142 of the Constitution to dissolve a marriage between 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.
On September 20, the apex court had said, "We do believe that another question which would require consideration would be whether the power under Article 142 of the Constitution of India is inhibited in any manner in a scenario where there is an irretrievable breakdown of marriage in the opinion of the court but one of the parties is not consenting to the terms."
Having exercised its sweeping powers under Article 142 for more than two decades to annul "irretrievably broken marriages", the apex court had in September last year agreed to examine whether it can nullify marriages between estranged couples without both the partners consenting to it.
