NEW DELHI: The Supreme Court on Monday ruled that no spouse has the right to move it directly to seek divorce claiming "irretrievable breakdown of marriage" even though it alone has the discretionary powers under Article 142 of the Constitution to dissolve a matrimonial alliance that has broken down irretrievably.
"We wish to clearly state that grant of divorce on the grounds of irretrievable breakdown of marriage by the Supreme Court is not a matter of right, but a discretion which is to be exercised (by the the apex court) with great care and caution, keeping in mind several factors ensuring 'complete justice' is done to both parties," ruled a five-judge bench of Justices SK Kaul, Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari.
It said filing an appeal in the SC under Article 136 should also not be used to short-circuit the legal procedure provided for getting divorce by mutual consent or through contest in family courts.
Writing the unanimous judgment, Justice Sanjiv Khanna, answered in affirmative the question: Whether this court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer?
Justice Khanna said in exercise of Article 142 powers, the SC has the discretion to dissolve a marriage that has broken down irretrievably, but only after being fully satisfied that "the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed".
The five-judge bench said the SC could exercise its omnibus powers under Article 142 to dissolve a marriage only when it is satisfied on unimpeachable facts of a particular case that the matrimonial alliance has become totally unworkable, emotionally dead and beyond salvation.
"For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in legal proceedings from time to time; cumulative impact on the personal relationship; and whether and how many attempts were made to settle the disputes by intervention of the court or through mediation and when the last attempt was made," the bench said.
The SC also said a period of separation of six years could be a relevant fact to consider grant of divorce. "But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children," it further said.
Justice Kaul-led five-judge bench also said the SC, while granting divorce using powers under Article 142, must also consider the impact and implications on children and their custody and provision for alimony.
"We would not like to codify the factors so as to curtail exercise of jurisdiction under Article 142(1) of the Constitution of India, which is situation-specific. Some of the factors mentioned can be taken as illustrative, and worthy of consideration," it said.
The Open Magazine of India by Artmotion Network (https://magazine.armotion.com/)