👍👍👍👍👍Supreme Court rules it can directly grant divorce to couples under Article 142: How does the process work? | Explained News,The Indian Express

Clipped from: https://indianexpress.com/article/explained/explained-law/supreme-court-divorce-explained-ruling-8585167/

While the parties can approach the family courts for initiation of divorce proceedings, this process is often time-consuming and lengthy, owing to a large number of similar cases pending before such courts.

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XLast year, the Supreme Court said that it would determine what rules should be followed while dissolving marriages directly under Article 142. (Express photo by Amit Mehra)

On Monday, a constitution or five-judge bench of the Supreme Court held that it can exercise its powers under Article 142 of the Constitution to directly grant a decree of divorce to consenting parties, in cases of irretrievable breakdown of marriage, without referring the parties to a family court where they must wait for 6 to 18 months for a decree of divorce by mutual consent.

“We have held that it is possible for this court to dissolve marriage on the ground of irretrievable breakdown of marriage. That will not contravene the specific or fundamental principles of public policy.” LiveLaw reported the Justice SK Kaul-led bench saying.

The judgment relates to a 2014 case filed in the top court, titled Shilpa Sailesh vs. Varun Sreenivasan, where the parties sought a divorce under Article 142 of the Indian Constitution.

What is the current procedure for getting a divorce under the Hindu Marriage Act (HMA)?

Under Section 13B of the Hindu Marriage Act, 1955, the procedure to obtain a divorce by mutual consent is laid down. Section 13B (1) states that both parties can file a petition for dissolution of their marriage by presenting a decree of divorce to the district court, 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 have mutually agreed to dissolve their marriage.

Further, under Section 13B (2) of the HMA, both parties seeking divorce have to wait between 6 to 18 months from the date on which they presented their petition to obtain the divorce decree. The six-month period is given so that the parties have ample time to withdraw their plea.

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After the passage of the mandated period and hearing both parties, if the court is satisfied, it may conduct an inquiry and pass a decree of divorce, dissolving the marriage with effect from the date of the decree. However, these provisions apply when at least one year has elapsed since the marriage took place.

Additionaly, divorce can be sought by either spouse on grounds like adultery, cruelty, desertion, religious conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death.

Can the process happen quickly in certain cases?

In circumstances of exceptional hardship or depravity, a divorce petition may be allowed under Section 14, even before the lapse of one year since marriage.

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The mandatory six-month waiting period under Section 13B (2) of the HMA can also be waived by filing an exemption application before a family court in a motion for the court to pass a decree of divorce. In its 2021 ruling in Amit Kumar vs. Suman Beniwal, the apex court said, “Where there is a chance of reconciliation, however slight, the cooling period of six months from the date of filing of the divorce petition should be enforced. However, if there is no possibility of reconciliation, it would be meaningless to prolong the agony of the parties to the marriage.”

Thus, if the marriage has broken down irretrievably, the spouses have been living apart for a long time unable to reconcile their differences, and then they mutually decided to part, it is better to end the marriage to enable both spouses to move on with their lives, the court said.

What are the issues with the current process for divorce?

While the parties can approach the family courts for initiation of divorce proceedings, this process is often time-consuming and lengthy, owing to a large number of similar cases pending before such courts. If the parties wish to opt for a divorce more expeditiously, they can approach the Supreme Court under Article 142 for the dissolution of their marriage.

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Subsection 1 of Article 142 says, “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… in such manner as may be prescribed by or under any law made by Parliament…” Essentially, this provision gives the country’s top court wide powers to do “complete justice” in a case before it.

What was the case that took the Supreme Court route under Article 142?

In 2014, a case was filed in the SC, titled Shilpa Sailesh vs. Varun Sreenivasan, where the parties sought a divorce under Article 142, stating that their marriage had irretrievably broken down. This is one of the legally recognised grounds for divorce, available to both the husband and the wife. In a recent SC judgment in the Shri Rakesh Raman vs. Smt Kavita case, the court said “irretrievable breakdown of marriage” can be read under the grounds of cruelty, under S13 (1) (a) of the Hindu Marriage Act

In the present case, the court granted divorce to the parties using its Article 142 powers. However, it clarified that the question of whether it can directly grant divorce under Article 142 without referring the parties to a family court would remain open. This was done in light of the multiple similar petitions pending before the top court on the same question.

Last year, the court said that it would determine what rules should be followed while dissolving marriages directly under Article 142. The court also aims to clarify whether the application of its power under Article 142 would extend to all divorce cases; and whether it could be used in cases where one of the parties is not consenting to the divorce. For this, the court appointed senior advocates Dushyant Dave, Indira Jaising, Meenakshi Arora, and V. Giri as amicus curiae, for assistance in the case.

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