Supreme Court’s Power To Directly Grant Divorce
Shilpa Sailesh v Varun Sreenivasan
The Supreme Court will decide if it can directly grant divorce by using Article 142 without referring parties to the Family Court
Amicus Curiae: Indira Jaisingh, Dushyant Dave, V. Giri and Meenakshi Arora
What rules should the Court follow under Article 142 to dissolve a marriage between the consenting parties without referring them to the Family Court?
Should Article 142 be used to decide divorce cases at all? If yes, should it be used depending on the facts of each case?
How Article 142 could be used to dissolve a marriage when one of the parties does not consent to a divorce?
Section 13 B of the Hindu Marriage Act, 1955 (HMA), provides the procedure to obtain a divorce by when both the parties in the marriage consent. The parties must approach the Family Court to initiate divorce proceedings.
However, the process of obtaining a divorce from a Family Court is lengthy as it is inundated with a huge volume of similar cases. To receive a decree for divorce at the earliest, the parties approach the Supreme Court asking it to use its powers under Article 142 of the Constitution of India to dissolve the marriage. Article 142 of the Constitution enables the Court to issue or pass any order that it feels is necessary to provide “complete justice” in a case before it.
In 2014, the parties moved the Supreme Court to grant them divorce using its powers under Article 142, as the marriage had been ‘irretrievably damaged’, which is a ground for divorce under the HMA. The parties had also arrived at a settlement between themselves before approaching the Supreme Court, as the Family Court did not hear their case.
In 2015, the Supreme Court granted them a divorce using its powers under Article 142. The Court however observed that there were many similar petitions pending before it. So, while the dicorce was granted the case was kept pending to decide the following issues:
- What rules should the Court follow under Article 142 to dissolve a marriage between the consenting parties without referring them to the Family Court.
- Should Article 142 be used to decide divorce cases at all? If yes, should it be used depending on the facts of each case?
The Court appointed Senior Advocates Giri, Indira Jaisingh, Dushyant Dave and Meenakshi Arora as amicus curiae to assist the Court in deciding what issues to address. In June, 2016, a two-udge bench of the Supreme Court referred the case to a Constitution Bench. However, the case was not heard till September, 2022.
The case was listed before a Constitution Bench led by Justice Sanjay Kishan Kaul on September 20th, 2022. During the hearing, the Court noted that it will also have to decide on how Article 142 could be used to dissolve a marriage when one of the parties does not consent to a divorce.