Constitution Bench Pronounce Verdict, SC Can Grant Divorce Under Article 142

The Supreme Court today held that it can exercise its plenary powers under Article 142 of the Constitution to grant a divorce decree to consenting parties, in cases of irretrievable breakdown of marriage.

A Constitution Bench comprising of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari recently held that the 6-month period prescribed under the Hindu Marriage Act can be dispensed with.

The Bench stated that, “Article 142 must be considered in light of the fundamental rights . It should contravene a non-derogable function of the Constitution. Court under the power is empowered to complete justice.”

Therefore, the verdict came in a bunch of petitions regarding using the top court’s plenary powers to dissolve marriage between the consent parties, depriving the referral to family courts for waiting for the mandatory period under Hindu Marriage Act (Section 13-B).

Article 142 permits top court to pass orders or decrees which are mandatory for “doing complete justice” on matter pending before it or in any cause.

However, the issues involves if the Supreme Court could exercise its powers under Article 142 of the Constitution for dissolving a marriage, the broad limitations of such powers and whether the invocation of the stated power was allowed in the awol of the party’s mutual consent.

The case was referred to a 5-judge Bench nearly 5 years ago on June 29, 2016 by a Division Bench of retired justices, Justices Shiva Kirti Singh & R Banumathi in a transfer petition.

After hearing arguments, the Constitution Bench reserved its judgment on September 29, 2022.

Senior Advocates Indira Jaising, V Giri, Kapil Sibal, Dushyant Dave and Meenakshi Arora have been appointed amici curiae for assisting the Court in the matter.