Can Supreme Court Directly Grant Divorce?

A recent Constitution bench ruling of the Supreme Court (SC) clarified that SC can directly grant divorce in cases of ‘irretrievable breakdown’ without sending the parties to a family court, where they must wait for a certain time period to obtain a divorce.

But the SC also clarified that disputing parties cannot approach the Court directly and seek divorce on the grounds of ‘irretrievable breakdown’ by filing a Writ petition under Article 32 of the Constitution. This Article grants Indian citizens the right to look for a remedy, which is in accordance with the Constitution, by approaching the apex Court in case they have been denied their fundamental rights.

• Furthermore, the SC added that divorce on grounds of irretrievable breakdown granted by it is not associated with any right but rather with discretion, which must be exercised with utmost care, keeping all relevant factors in mind.

Discretion in such scenarios will help deliver ‘complete justice’ to both parties, where the Court has considered all the factors and believe the marriage to be a failure with no scope for a couple to cohabit together and where it would not be justified to continue a formal legal relationship.

Besides, the SC also highlighted that while exercising discretion, it must consider the relevant provisions applicable and enacted in the case and not ignore them completely.

Article 142 and its Powers

There are instances where the Supreme Court of India must take decisions that may not be in accordance with the usual process but is vital to uphold justice. The apex Court can take such decisions by using its plenary jurisdiction, granted to it by Article 142.

• Article 142 grants a power of equity that may be used in cases where strict application of law might be inapt to deliver a fair outcome.
• The demand for justice not only requires the legal entity to see the positive sides of the law, but also consider the underlying aim of such a law in order to deliver a fair and just decision.
• Even when the law is clearly defined, the deliberately enhanced power granted under Article 142 allows the Court to pass an order that reflects justice, as that is the foundation and purpose of any legal entity and also the core aspect on which the law itself is based on.

Article 142 brings the intersection between the general and specifics of laws to the forefront. Courts may encounter instances where the underlying aim of laws needs to be merged with its definition to safeguard and retain the humane aspect of such laws. The Supreme Court held that Article 142 grants it the legal right to value equity over law.

However, this power, similar to all others, must be regulated and kept in check, as it has been stated that relaxation based on equity should not violate the substantive mandate of the law that is based on the underlying vital general and specific issues of public policy.

Limitations on Article 142

The Supreme Court understands that there are certain limitations to the power granted to it under Article 142. It stated that while using the power under this article:

• Substantive rights of an individual under existing laws must not be ignored by the Court.
• It cannot be used to overpower and replace any significant law applicable to a case.
• Express mandatory regulations should not be ignored.
• It cannot use the power in violation of the regulation.

Note: The Apex Court clarified that no court has the right to issue an order contrary to the law. It is their duty to enforce the law and not pass orders that violate them as such.

Factors to be Considered for ‘Irretrievable Breakdown of Marriage’

A marriage shall be deemed to have undergone an irretrievable breakdown if the Court is completely convinced, after considering all relevant facts and applicable laws, that the marriage is beyond salvation and dissolving it is the only way to resolve the conflict.

The following factors were laid down for consideration by the Supreme Court to help identify a marriage with ‘irretrievable breakdown’.

• Last time the parties cohabited.
• The time the parties have spent together post marriage.
• If the separation period is significantly long (if beyond 6 years, there may be no scope for resolution.)
• Number of allegations made by both parties against each other and their family members.
• Various orders passed with respect to the legal proceedings.
• Whether and, if yes, how many attempts were made by parties to settle the dispute, be it via Court or mediation.
• When was the last attempt to resolve the conflict made.

Need for Direct Decree of Divorce under Article 142

• The decree obtaining process is quite lengthy and tedious.
• There is a need to assess factors like the economic and social status of both parties.
• A significant number of similar cases are pending before family courts.
• Dependents of both parties must be considered, i.e., if they have children, their age and if the parties and children are dependents.

Conclusion

Thus, before any decision is taken, the circumstances must be considered when evaluating the state of a couple’s marriage. The Supreme Court must consider various aspects of marriage and simply not adhere to legal provisions if the circumstances demand a certain level of discretion.

This is because the ultimate goal of all laws is to deliver justice, which might not be delivered in certain divorce cases if only the legal provisions stated under various Acts are kept in mind and all other aspects of the marriage are ignored.