On Monday, a constitutional bench of five judges from the Supreme Court ruled that it has the authority, under Article 142 of the Constitution, to grant a divorce decree directly to couples who have agreed to it and where the marriage is irretrievably broken down. This means that they can bypass the need to go to a family court and wait for 6 to 18 months for a mutual divorce decree.
In a case titled Shilpa Sailesh vs. Varun Sreenivasan filed in 2014, the Supreme Court was asked to grant a divorce under Article 142 of the Indian Constitution on the grounds of irretrievable breakdown of marriage. The court, led by Justice SK Kaul, ruled that granting a divorce on this basis would not violate any specific or fundamental principles of public policy. Therefore, the court has held that it is possible for them to dissolve a marriage based on irretrievable breakdown of marriage.
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 orders so made sall 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
The Power of Article 142 DIVORCE LANDSCAPE
(2) 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
Current procedure for getting a divorce under the Hindu Marriage Act (HMA)?
Section 13B of the Hindu Marriage Act, 1955 lays down the procedure for obtaining a divorce by mutual consent. According to Section 13B(1), both parties can jointly file a petition for dissolution of their marriage to the district court. They can do so on the grounds that they have been living separately for a year or more, or that they have not been able to live together, or that they have mutually agreed to dissolve their marriage.
Under Section 13B(2) of the HMA, the parties seeking a divorce by mutual consent have to wait for a period of 6 to 18 months from the date on which they presented their petition to the court to obtain the divorce decree. The purpose of the six-month waiting period is to give the parties enough time to reconsider their decision and withdraw their plea if they wish to do so.
If the mandated waiting period specified under Section 13B(2) of the Hindu Marriage Act, 1955 is over and the court is satisfied after hearing both parties, it may proceed with an inquiry and pass a decree of divorce, officially dissolving the marriage from the date of the decree. However, it is important to note that these provisions only apply if at least one year has passed since the marriage.
Apart from seeking divorce by mutual consent, either spouse has the right to seek divorce on various other grounds under the HMA, such as adultery, cruelty, desertion, religious conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death.
Can the process be quick?
Section 14 of the Hindu Marriage Act, 1955 allows for a divorce petition to be granted in situations of exceptional hardship or depravity, even before the lapse of one year since the marriage. This provision can be utilized in cases where continued marriage could lead to unbearable suffering or where the marriage is causing irreparable harm to either spouse.
Under Section 13B(2) of the HMA, the mandatory waiting period of six months for a divorce by mutual consent can be waived by filing an exemption application before a family court. However, in a 2021 ruling in the case of Amit Kumar vs. Suman Beniwal, the Supreme Court clarified that the waiting period should be enforced where there is even a slight chance of reconciliation between the parties. However, if there is no hope of reconciliation, prolonging the waiting period would only increase the agony of the parties involved.
"According to the court, if a marriage has irretrievably broken down and the spouses have been living apart for a substantial period without any chance of reconciliation, it is advisable to end the marriage through mutual consent. This would allow both parties to move on with their lives and start afresh without being stuck in a failed marriage."
What are the issues with the current process for divorce?
In India, the process for divorce is governed by the Hindu Marriage Act, 1955 (HMA). The current process for divorce under the HMA can be complicated, time-consuming, and emotionally draining for the parties involved. Here are some of the key issues with the current process for divorce under the HMA:
Lengthy process: The current process for divorce under the HMA can take a long time to complete, which can prolong the emotional strain on the parties involved. The length of the process can vary depending on the type of divorce being sought and the complexity of the case. For example, a contested divorce can take years to resolve, whereas an uncontested divorce can take several months.
High costs: The legal fees associated with divorce proceedings can be quite high, especially in cases where the divorce is contested. The cost of hiring a lawyer, filing fees, and other legal expenses can add up quickly, making it difficult for some individuals to afford the process.
Lack of clarity: The HMA provides several grounds for divorce, but the interpretation of these grounds can be subjective and unclear. This lack of clarity can lead to prolonged legal battles and further exacerbate the emotional strain on the parties involved.
Stigma: Divorce is still stigmatized in many parts of Indian society, particularly for women. This can make it difficult for individuals to seek a divorce and can also affect the way they are perceived by their family, friends, and community.
Inequality: The current process for divorce under the HMA is biased towards men. For example, men can seek divorce on the grounds of adultery committed by their wife, whereas women can only seek divorce on the grounds of adultery if their husband has committed adultery with a woman who is still married.
Inadequate support: The current process for divorce under the HMA does not provide adequate support to the parties involved. For example, there are no provisions for counseling or mediation services, which could help to resolve disputes and minimize the emotional strain on the parties involved.
In summary, the current process for divorce under the HMA can be lengthy, expensive, and emotionally draining for the parties involved. There is a need for reforms to the process to make it more accessible, fair, and supportive for all parties involved.
What case was brought before the Supreme Court wherein the parties sought a divorce under Article 142?
In 2014, the Supreme Court heard a case titled Shilpa Sailesh vs. Varun Sreenivasan, where the parties sought a divorce under Article 142 of the Constitution of India. They claimed that their marriage had irretrievably broken down, which is one of the legally recognized grounds for divorce.
In the Shilpa Sailesh vs. Varun Sreenivasan case, the Supreme Court granted the parties a divorce using its powers under Article 142. However, the court clarified that it had not yet decided whether it could directly grant divorce under Article 142 without referring the parties to a family court. The court appointed senior advocates as amicus curiae to assist in determining what rules should be followed when dissolving marriages directly under Article 142.
The court also aims to clarify whether its power under Article 142 could be used in all divorce cases, including those where one party does not consent to the divorce. These questions remain open, and the court is currently considering them.
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