Can Marriage Be Dissolved Exercising Article 142 Powers? Supreme Court Constitution Bench To Start Hearing From Sep 28

A Constitution Bench of the Supreme Court, on Tuesday, stated that from 28th September, 2022 it is to commence with the hearing of the matter where its indulgence is sought to consider the extent of its powers under Article 142 of the Constitution of India, 1950, to dissolve marriage.

The 5-Judge Bench headed by Justice S.K. Kaul and also comprising Justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari were of the opinion that the real issue is the exercise of power under Article 142 when there is irretrievable breakdown of marriage, but one party is not consenting to divorce.

The Constitution Bench reference emanates from a Transfer petition, wherein pursuant to settlement, the parties had sought appropriate order of the Court to dissolve their marriage and the same was granted by the Apex Court on following grounds -

1. there has been an irretrievable breakdown of marriage between the parties;
2. the parties are consenting to divorce;
3. requiring the parties to go to the jurisdictional family court to invoke the provisions of the Hindu Marriage Act, 1955 to seek a decree of divorce would be a lengthy process considering the fact that the Family Courts in the country are clogged with a huge volume of similar litigation.

While granting divorce the Division Bench had also noted -

Notwithstanding the above order passed by us, for the purposes of statistics the present transfer petitions shall remain pending as we are of the view that an issue of some importance needs to be addressed by the Court in view of the huge number of requests for exercise of power under Article 142 of the Constitution that has confronted this Court consequent to settlement arrived at by and between the husband and the wife to seek divorce by mutual consent.

In the order of reference, the Court had sought the assistance of Senior Advocates, V. Giri, Dushyant Dave, Indira Jaising and Meenakshi Arora.

On Tuesday, Amicus Curiae, Mr. V. Giri assisted the Bench with the reference order, which sets out the questions to be considered by the Constitution Bench.

The questions formulated are extracted below:

1. "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.
2. 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."

Justice Kaul reckoned that the exercise of power under Article 142 to dissolve marriage may not be a major concern when it is between consenting parties. He stated that the real concern are those cases where the Apex Court in exercise of power under Article 142 dissolves marriage, even without the parties consenting to it.

When the parties are willing...it may not be a major concern. But really the impediment arises when the parties do not consent and we grant divorce under A. 142.

Mr. Giri informed the Bench that the Attorney General, in his notes, has also formulated some additional issues, which can also be taken up during the course of the hearing.

[Case Status: Shilpa Sailesh v. Varun Sreenivasan TP(C) No. 1118/2014]

Click Here To Read/Download Order