Supreme Court ruling on Consensual Divorce


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    • Recently, a Constitution Bench of the Supreme Court ruled that it can exercise its plenary power to do “complete justice” under Article 142(1) of the Constitution to dissolve a marriage.

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    • The Supreme Court Bench ruled that it can exercise its plenary power to do “complete justice” under Article 142(1) of the Constitution to dissolve a marriage on the ground that it had ‘broken down irretrievably’, without referring the parties to a family court where they must wait 6-18 months for a decree of divorce by mutual consent.

    What is “Irretrievable breakdown”?

    • What factors can courts consider while deciding if a marriage has irretrievably broken down? 
      • During the pendency of the case recently, the court said that it would determine what rules should be followed while dissolving marriages directly under Article 142 of the Constitution.
        • The first and most “obvious” condition is that the court should be fully convinced and satisfied that the marriage is “totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward”.
      • The court has also laid down the following factors:
        • The period of time that the parties had cohabited after marriage;
        • When the parties had last cohabited;
        • Nature of allegations made by the parties against each other and their family members;
        • Orders passed in the legal proceedings from time to time;
        • Cumulative impact on the personal relationship;
        • Whether, and how many attempts were made to settle the disputes by a court or through mediation, and when the last attempt was made.

    Current procedure for divorce under the Hindu Marriage Act

    • Section 13B of the HMA provides for “divorce by mutual consent”. 
      • Filing of divorce:
        • Both parties to the marriage must together file a petition to the district court “on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved”.
      • Mandatory “cooling-off” period :
        • Under Section 13B(2) of the Act, the parties must move a second motion before the court “not earlier than six months after the date of the presentation of the [first] petition and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime”.
        • The mandatory six-month wait is intended to give the parties time to withdraw their plea.
      • Decree of divorce:
        • Thereafter, “the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree”.
    • Exemptions:
      • A petition for divorce by mutual consent can be moved only after a year of the marriage
        • However, Section 14 of the HMA allows a divorce petition sooner in case of “exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent”.
      • A waiver of the six-month waiting period under Section 13B(2) can be sought in an exemption application filed before the family court.
    • Issue:
      • The process of obtaining a decree of divorce is often time-consuming and lengthy owing to a large number of similar cases pending before family courts.

    Article 142 of the Constitution

    • Under Subsection 1 of Article 142, the Supreme Court “may pass such decree or make such order as is necessary for doing complete justice in any cause or matter and any decree so passed or order so made shall be enforceable throughout the territory of India”.

    Social aspects of divorce in India

    • Stigma around divorce & increasing number:
      • In Indian culture, marriage is a holy institution, and divorce is considered taboo. 
      • Although the situation is improving as the younger generation is becoming more independent, the term “divorce” is still frowned upon.
      • Despite the fact that India’s divorce rate is lower than that of Western countries, the number of divorce cases is steadily increasing as a result of different social and economic changes.
    • Mental health:
      • Divorce has been identified as a risk factor for mental health disorders and has been linked to negative mental health outcomes. 
    • Social & financial effects:
      • Divorce, in particular, has a detrimental impact on a family’s financial stability, social environment, academic/employment performance, as well as the family’s psychological and physical well-being. 
    • On Children:
      • Divorce has a significant impact on the parent-child connection. 
      • Usually, it is seen that children, as well as custodial parents, do not have that connection which a child and parent should have.
      • Children of divorce are more likely to experience negative feelings, lower self-esteem, behavioral problems, anxiety, depression, and mood disorders. 

    Way ahead

    • The apex court in its previous orders had held that the waiting period should be done away with in cases where there is no way to save the marriage and all efforts at mediation and conciliation have run their course; where parties have genuinely settled their differences including alimony, custody of child, etc, between themselves; and already a year and a half has passed since their first motion for separation.
    • The court had observed that application for waiver of waiting period can be filed in court within a week of their first motion for separation. 
      • The proceedings can be done through video-conferencing

    Source: TOI