Power Under Article 142 To Dissolve Marriage Between Consenting Parties: Supreme Court Constitution Bench Adjourns Hearing

A Constitution Bench of the Supreme Court has on Wednesday adjourned the case pertaining to question of the Apex Court's jurisdiction under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act.

The Constitution Bench comprising of CJI Bobde, Justice Gavai, Justice Bopanna, Justice Ramasubramanian and Justice Hrishikesh Roy took up the matter for hearing today. During the hearing, the Bench observed that it may need some time to go through Senior Advocate Indira Jaisingh's amicus report.

Senior Counsel Jaisingh submitted that the matter may be taken up some other day. She also sought time to include three judgements in her report. She added that there is a subsequent judgement by Bench of Justice Goel and Justice Lalit which will be relevant to the case and will help decide the issue.

The Court was also informed that a total of 4 Amicus were appointed in the present matter including Senior Advocates V.Giri Dushyant Dave, Indira Jaising and Meenakshi Arora .The present case involves two legal questions, framed by a Division Bench of the Supreme Court on 6th May 2015 and referred to a Constitution Bench by another Bench on 29th June 2016.

A division Bench of Justice Ranjan Gogoi and Justice NV Ramana through the May 2015 order had framed two important questions that required consideration:

• What could be the broad parameters for exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act.

• Whether the exercise of such jurisdiction under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case.

The Bench had also sought assistance of Senior Advocates V.Giri, Dushyant Dave, Indira Jaising and Meenakshi Arora to assist and enable the Court to take an appropriate decision of the matter.

The Court had decided to frame these issues of importance and opined that they need to be addressed in view of the huge number of requests before the top Court for exercise of its power under Article 142 of the Constitution consequent to settlement arrived at between husband and wife to seek divorce by mutual consent.

The questions were framed by the Court while hearing a batch of transfer petitions. In the matter of Shilpa Shailesh vs Shreenivasan, the parties involved had reached a settlement and agreed to dissolve their marriage by mutual consent and sought an appropriate order from the top Court under Article 142 of the Constitution of India for dissolution of the marriage.

The Court through its order in May 2015, had noted that an irretrievable breakdown of marriage had occurred between the husband and wife, and requiring them to go to the jurisdictional family court to invoke the provisions of the Hindu Marriage Act, 1955 to seek divorce would be a lengthy process considering the fact that the Family Courts in the country are clogged with a large volume of similar litigation a decree of lengthy process.

The Court, therefore, in consideration of the facts of the case decided to invoke its jurisdiction under Article 142 of the Constitution to invoke the marriage between the parties and enable them to start their life afresh. The Court had decided to keep the transfer petitions pending till the questions framed were decided by the Court.

A division Bench of Justice Shiva Kirti Singh and Justice Bhanumathi on 29th June 2016 then decided to refer the matter for consideration of questions of law, to a Constitution Bench. While referring the matter to a larger Bench, the Court also decided to take up the remaining two petitions filed by spouses seeking divorce based on mutual consent.

The Court observed that since a doubt had arisen as to whether the top Court should exercise such power directly or not, it would be proper and in the interest of justice to permit parties to approach the court of competent jurisdiction. The Court therefore directed parties in both cases to have their divorce application disposed of by the competent court in accordance with law