1. ART 142 : THE SC GRANTS DIVORCE IN
THE ABSENCE OF LEGISLATION
SIVASANKARAN V. SANTHIMEENAL
13th September 2021
2. INTRODUCTION
Irretrievable marital breakdown is defined as a failure in the
matrimonial bond or circumstances so unfavourable to that
relationship that there is no reasonable chance of the individuals
continuing together as a couple for mutual comfort and love. In India,
the Government of India sought to insert 'Irretrievable Breakdown of
Marriage as a ground of divorce in the Hindu Marriage Act and
Special Marriage Act, in conformity with the recommendations of the
Law Commission of India's 71st report. As a result, in the
present scenario, the Supreme Court exercised its powers under Article
142, concluding that both the grounds of irretrievable breakdown of
marriage and cruelty would favour the grant of a decree of divorce in
favour of the appellant.
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3. STATUTORY PROVISIONS
Section 13(1)(i-a) of the Hindu Marriage Act,
1955 states that any marriage legitimated,
whether before or after the enactment of this Act,
may be dissolved by a judgement of divorce on
the grounds that the other party treated the
petitioner cruelly after the marriage was
solemnized.
Article 142 of the Indian Constitution, states that
"the Supreme Court may, in the exercise of
its jurisdiction, pass such decree or make such
order as is required for doing complete justice in
any cause or matter standing before it," and that
"any decree so passed or order so made shall
be enforceable throughout the territory of India in
such manner as may be specified by or under
any legislation made by Parliament and, until
provision in that regard is made, in such manner
as the President may direct."
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4. ARTICLE 142 OF THE INDIAN CONSTITUTION
The Constitution grants the country’s highest court broad authority to administer “complete justice” in a
matter. On May 27, 1949, the Constituent Assembly passed Article 142, which began as draft article
118. Article 142 allows the executive and legislative branches to be superseded. Whenever the executive or
legislature fails to defend people’ rights and uphold constitutional ideals, the judiciary has used its powers
under Article 142 to do so.
As the constitutional protector, Article 142 gives it the capacity to fill statutory gaps. It also establishes a
system of checks and balances for the government’s other branches. For instance:
The SC established norms to safeguard a woman from sexual harassment at work in the case of
Vishakha v State of Rajasthan.
In the Bandhua Mukti Morcha Case, the SC of India handed down a landmark verdict on India’s
bonded labour system.
In the case of Olga Tellis, the right to subsistence was held to be an integral aspect of the right to life.
5. FACTS OF THE CASE
The marriage between the appellant (husband) and respondent
(wife) was solemnized as per the Hindu rites and customs on
07.02.2002. The appellant claimed that the respondent ran away
from the marriage hall on the wedding night and went to
Pudukkottai as she was coerced into the marriage without her
consent. When he and his relative persuaded her to come back, it is
stated that she refused. As the marriage failed to be successful, the
appellant issued a notice seeking divorce on 25.02.2002 on the
ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage
Act, 1955. Soon thereafter the respondent filed a petition for
restitution of conjugal rights.
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6. The appellant filed for a divorce, and the trial court granted them
divorce after almost 5 years on 17.3.2008 on the ground of irretrievable
breakdown of the marriage. Within 6 days the appellant got married a
second time on 23.3.2008. The respondent preferred an appeal before
the additional district judge, pudukkottai. The court set aside the decree
of divorce and allowed the petition for restitution of conjugal rights.
The appellant made an appeal before the high court where the divorce
decree by the trial court was upheld on 14.09.2018, this litigation was
going on for 15 years. Iv. The respondent filed a revision petition
before the high court contending that the trial court and the high court
do not have jurisdiction to grant a divorce on the ground of
irrecoverable breakdown of a marriage.
7. I. Whether the courts can exercise their power
under Art.142 of the constitution to grant divorce
in the absence of consent of the parties?
II. Whether the exercise of such jurisdiction under
Article 142 requires the consent of both parties?
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ISSUES BEING RAISED
8. JUDGMENT 8
According to Art. 142 of the Indian constitution, any order passed by the
Supreme Court to do complete justice is enforceable throughout the territory of
India. When the legislature is silent upon the subject matter, the Courts shall
have the power to pass necessary orders or decrees to render justice. It is noted
that courts can exercise this power only when the marriage is irrecoverably
broken and failed. In this present case, the parties separated soon after the
marriage and did not cohabit. After five years, the appellant was remarried as
well. In Munish Kakkar v. Nidhi Kakkar (2020), the Court observed that these
powers are exercised in routine but only on the rarest occasions. In the absence
of the Legislature, wherein the marriage is unworkable and is impossible for a
reunion, the courts shall decide upon the same. If it was allowed to continue, it
would cause trauma and difficulties in the life of both parties.
9. This court, citing K. Srinivasa Rao v. DA Deepa (2013), held that
repetitive filing of cases can be ground for divorce under mental
cruelty. In Naveen Kohli v. Neelu Kohli, (2006), the Court observed
once the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of that fact, and it would be
harmful to society and injurious to the parties. Thus, the court
dissolved the marriage between the parties in exercise of powers under
Article 142 of the Constitution of India on account of irretrievable
breakdown of marriage, but also on account of cruelty under Section
13(1)(i-a) due to subsequent conduct of the respondent during the
pendency of judicial proceedings at various stages.
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10. CONTENTIONS OF BOTH PARTIES 10
THE APPELLANT-HUSBAND CONTENDED SEEKING
DIVORCE ON THE GROUND OF CRUELTY UNDER
SECTION 13(1)(I-A) OF THE HINDU MARRIAGE ACT,
1955. THE RESPONDENT’S CONDUCT AFTER THE
DIVORCE RESULTED IN MENTAL CRUELTY TO THE
HUSBAND. THE RESPONDENT FILED MULTIPLE
CASES AGAINST THE APPELLANT ONE OF THEM
WAS A W.P. NO.20407/2013 PRAYING FOR A WRIT OF
MANDAMUS TO INITIATE DISCIPLINARY ACTION
AGAINST THE APPELLANT, WHO WORKED AS AN
ASST. PROFESSOR IN GOVERNMENT ARTS
COLLEGE, KARUR. SHE HAD RAISED
UNNECESSARY QUERIES ABOUT THE APPELLANT’S
REMARRIAGE OR WHETHER HE LIVED WITH
SOMEBODY ELSE. THE PROCEEDINGS WERE FOUND
TO BE AN ABUSE OF THE PROCESS OF THE RTI ACT.
THE RESPONDENT-WIFE CONTENDED THAT THE
APPELLANT AND HIS RELATIVES DEMANDED
DOWRY AND TOOK HIM AWAY FROM HER
COMPANY. SHE CLAIMED THE APPELLANT
REFUSED TO COHABIT WITH HER. THE COURT
ALLOWED THE RESPONDENT’S PETITION FOR
RESTITUTION OF CONJUGAL RIGHTS. THE
RESPONDENT FILED A REVIEW PETITION ON THE
GROUND THAT IT WAS NOT WITHIN THE
JURISDICTION OF THE HIGH COURT OR THE TRIAL
COURT TO GRANT A DIVORCE ON THE GROUND OF
IRRETRIEVABLE THE COURT EXAMINED THE
RIVAL CONTENTIONS OF THE PARTIES. THE
MARRIAGE WAS NEVER CONSUMMATED, AND THE
PARTIES LIVED SEPARATELY FOR ALMOST 20
YEARS. THE MARRIAGE.
11. CONCLUSION
Article 142 of the Constitution has a broad reach, and the Courts can
issue orders and decrees to provide speedy justice. If it is determined
that there is no hope of reconciling the marriage, there appears to be no
use in delaying the matter, as this would be counterproductive. The
parties would be able to go on and improve their situation if the
marriage was annulled. While doing so, the husband should keep the
wife's situation in mind and pay any appropriate compensation. As a
result, the court will only utilize its jurisdiction to dissolve the marriage
and deliver complete justice on the rarest of occasions.
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