The Constitutional Bench of the SC gave an essential verdict on divorce on Monday 1st of May 2023. The five judges of the Constitutional Bench of the Supreme Court have decided on divorce. The bench said that the Supreme Court could end those marriages using its powers, which have no scope to survive. The SC has got special powers under Article 142 of the Constitution.
The Court said it has laid down the factors on which a marriage can be considered beyond the possibility of reconciliation. Along with this, the Court will also ensure that there will be equality between husband and wife. This includes maintenance, alimony, and custody of children.
What is Article 142 of the Constitution of India?
Article 142 of the Constitution of India grants certain powers to the Supreme Court of India. Here is the text of Article 142:
- "Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.—(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
- Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself."
- Article 142 empowers the Supreme Court to pass decrees or make orders that are necessary to ensure complete justice in any ongoing case or matter before it. These decrees or orders have enforceability throughout the territory of India and can be implemented as prescribed by law. It also grants the Supreme Court the authority to issue orders for securing the presence of individuals, discovery or production of documents, and investigation or punishment of any contempt of the court.
It is important to note that while Article 142 grants wide-ranging powers to the Supreme Court, it is subject to any laws enacted by Parliament and the overall framework of the Constitution. The Supreme Court exercises this power judiciously and in accordance with the principles of justice and fairness.
Case title: Shilpa Sailesh vs Varun Sreenivasan 2023
This decision was given by the five judges of the constitution bench Justice SK Kaul, Justice Sanjiv Khanna, Justice Vikram Nath, Justice AS Oka, and Justice JK Maheshwari. Now the couple does not need to wait six months to get the divorce decree if there is no chance of returning to a healthy relationship.
Let's look into the 2017 landmark judgment, which is related to the waiting period:
Case: Amardeep Singh v. Harveen Kaur 2017
This was a landmark in interpreting the Hindu Marriage Act of 1955. The critical points of this case are:
- The SC held that the Court could waive the mandatory waiting period of six months for divorce under Section 13B(2) of the Hindu Marriage Act if the parties have been living separately for one year or more and reconciliation is impossible.
- The Court held that "living separately" does not necessarily mean living under the same roof. Parties can be considered as living separately even if they live in the same house but not as husband and wife.
- The Court also held that the Court could only grant a waiver of the six-month waiting period in exceptional circumstances and that the Court must be satisfied that the waiting period would only prolong the agony and suffering of the parties.
- The Court clarified that the waiver of the waiting period cannot be granted as a matter of routine, and the Court must exercise its discretion judiciously, keeping in mind the facts and circumstances of each case.
- The case also emphasized the importance of granting divorce to end a marriage that has broken down irretrievably rather than punishing the parties for their mistakes or shortcomings.
- However, this mandate for the waiting period was found to be causing hardships in some instances. In 2017, a two-judge bench of the Court held that the six months waiting period, as prescribed under Section 13B(2) of the HMA, is not mandatory and that the Family Court can waive the same in exceptional circumstances.
A six months waiting period is provided in Section 13B of the Hindu Marriage Act-1955:
The husband and wife can apply for a divorce by mutual consent to the Family Court. However, due to the high volume of cases in the Family Court, it takes time for the application to come before the judge for a hearing. After this, the first motion for divorce is issued, but one has to wait for six months to get the second motion, i.e., the formal divorce decree.
Why was Shilpa Sailesh vs. Varun Sreenivasan referred to the constitution bench?
The Court has to decide whether the waiting period for divorce by mutual consent could be waived under Section 13B of the Hindu Marriage Act. However, the bench also considered whether the marriage could be dissolved, leaving no scope for reconciliation.
When was the DB referred to the constitutional bench:
On June 29, 2016, the DB referred the matter to a five-judge Constitution Bench. After a lengthy hearing on five petitions, the DB reserved its decision on September 20, 2022. The Court also said that society would take 'some time' to digest this because this is a little complex, but at some time, it is easy to bring a law.
Meaning of constitutional bench:
In India, a constitutional bench is a unique bench of the Supreme Court of India that is constituted to hear cases that involve substantial questions of law related to interpreting the Constitution of India. The bench comprises five or more Supreme Court judges, and its decisions are considered binding on all lower courts in India.
Cases that are referred to the constitutional bench generally involve:
- Issues related to fundamental rights
- The powers of the central and state governments
- Disputes between the center and the states
- The interpretation of the Constitution itself
The decisions of the constitutional bench have a significant impact on the legal and political landscape of India. They are often closely watched by legal experts and the general public alike.
The Constitution of India provides for forming a constitutional bench in Article 145(3), which states that a "minimum of five Judges shall sit to decide any case involving a substantial question of law as to the interpretation of this Constitution."
Grounds of Mutual consent divorce in the Hindu Marriage Act:
In Hindu Marriage Act, mutual consent divorce is governed under Section 13-B. The grounds for mutual consent divorce under this section are:
- The couple have been living separately for one year or more.
- Not living together.
- Mutually agreed on the dissolution of the marriage.
- They have mutually agreed on how the properties, if any, will be divided.
- They have mutually agreed on the custody and maintenance of any children.
It is important to note that both the husband and wife must consent for a mutual divorce to be granted. They must also have lived separately for at least one year before filing for a mutual divorce. The Court may also grant a six-month cooling-off period to allow the couple to reconsider their decision before granting the final divorce decree.
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