THE Supreme Court held on Monday it has the discretion to dissolve a marriage on the ground of “irretrievable breakdown” in exercise of its plenary power under Article 142 (1) of the Constitution and can grant divorce by mutual consent while dispensing with the 6-month waiting period mandated under the Hindu Marriage Act, 1955. Article 142 of the Constitution deals with enforcement of decrees and orders of the apex court to do “complete justice” in any matter pending before it. As per Article 142(1), a decree passed or an order made by the apex court is executable throughout the territory of India. Section 13-B of the Hindu Marriage Act deals with divorce by mutual consent and sub-section (2) to this provision provides, after the first motion has been passed, the parties would have to move the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than 18 months of the first motion.

A five-judge constitution bench headed by Justice S K Kaul said grant of divorce by the apex court on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties. The bench was dealing with questions, including whether the top court can grant divorce in exercise of power under Article 142(1) of the Constitution when there is complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer. “This question is also answered in the affirmative, inter alia, holding that this court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown,” said the bench, also comprising Justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari. “This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified,” it said. The bench said as a court of equity, the top court is required to balance the circumstances and the background in which the party opposing the dissolution is placed. Answering the question about the scope and ambit of power and jurisdiction of the apex court under Article 142(1) of the Constitution, the bench held the top court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. “While deciding whether to exercise discretion, this court must consider the substantive provisions as enacted and not ignore the same, albeit this court acts as a problem solver by balancing out equities between the conflicting claims.

This power is to be exercised in a ‘cause or matter’,” it said. The apex court also dealt with another question as to whether it can, while hearing a transfer petition or in any other proceedings, exercise power under Article 142(1), in view of settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and procedure prescribed under section 13-B of the Hindu Marriage Act. WILL GIVE WOMEN CHANCE TO MOVE ON IN LIFE: NCW ON SUPREME COURT’S DIVORCE VERDICT: NCW chief Rekha Sharma on Monday welcomed the Supreme Court decision to do away with the six months waiting period for divorce through mutual consent under some conditions, saying it will give a chance to women to move on and plan their future. The apex court on Monday held that it can dissolve marriages on the ground of “irretrievable breakdown of marriage” invoking powers under Article 142 of the Constitution.