SC’s Power To Directly Grant Divorce: Judgement PronouncementSupreme Court’s Power To Directly Grant Divorce
Judges: S.K. Kaul J, Sanjiv Khanna J, A.S. Oka J, Vikram Nath J, J.K. Maheshwari J
Justice Sanjiv Khanna pronounced the judgement on behalf of the Bench answering the questions posed to the Constitution Bench.
The Bench held that the SC has the jurisdiction to depart from the procedure and statutory provisions of law under Art. 142 (1) if such a departure was required to establish ‘complete justice’ to the parties.
Clarifying this position, the Bench stated that the departure from procedure, however, must be based on ‘fundamental general and specific principles’ of public policy. Justice Khanna went on to state that general principles include the fundamental rights, secularism and other basic features of the Constitution. Specific public policy principles should be understood as those expressed in a statute. A statute cannot be interpreted in a way that fundamental principles are breached.
Following this, the Bench held that the SC has the discretion to set aside the period and procedure prescribed under 13B of the Hindu Marriage Act for a divorce by mutual consent. Further, the SC can grant divorce on the ground of ‘irretrievable breakdown’ in the interest of justice even if one party opposes it.
The judgement clarified that the power to grant divorce under Art. 142 (1) is not a matter of right, but is based on the SC’s discretion on a case-to-case basis. The SC must consider the following factors before ascertaining if there has been an ‘irretrievable breakdown’ of marriage:
- Period when the parties last cohabited,
- Nature of allegations
- Whether attempts were made to settle disputes through courts or otherwise
- Continuous ill-treatment
- Period of separation etc.