Divorce can be granted on ‘grounds of irretrievable breakdown’: Supreme Court

Source: The post is based on the article “Divorce can be granted on ‘grounds of irretrievable breakdown’: Supreme Court” published in The Hindu on 2nd May 2023

What is the News?

The Constitution Bench of the Supreme Court held that a court can directly grant divorce under Article 142 of the Constitution in cases where the marriage has irretrievably broken down.

This can be done without referring the parties to a family court first, where they must wait for 6-18 months for a decree of divorce by mutual consent.

What is the current procedure for getting a divorce in India?

The Hindu Marriage Act 1955 (HMA) lays down the procedure to obtain a divorce by mutual consent.

First a couple seeking divorce by mutual consent had to file a joint petition in a local court. In it, they had to claim that they were living separately for a year or more and were unable to live together again. 

The duo had to then wait for six to 18 months before making a second motion before the same court. This time, they had to confirm their decision to divorce. 

Following which, the judge would make a formal inquiry before granting them a decree of divorce by mutual consent.

Issues with the current process is that it is time-consuming and lengthy, owing to a large number of cases pending before the courts.

What did the Supreme Court have ruled now on divorce?

The Supreme Court has said that it could also use powers under Article 142 of the constitution to grant divorce on the ground of “irretrievable breakdown of marriage” if the “separation is inevitable and the damage is irreparable”.

However, the court cautioned that grant of divorce by the Supreme Court on the ground of irretrievable breakdown of marriage was not a matter of right, but a discretion which is to be exercised with great care and caution. 

Several factors would be considered by the Supreme Court before invoking Article 142 in matrimonial cases.

These include the duration of the marriage, period of litigation, the time they have stayed apart, the nature of the pending cases between the couples, the number of attempts at reconciliation and the court’s satisfaction that the mutual agreement to divorce was not under coercion.