CORPORATE LAW

DIVORCE: Under Article 142 of the Constitution

11. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justice-oriented approach as against the strict rigours of the law……………………………”

 (State of Punjab & Ors. vs. Rafiq Masih (Whitewasher), (2014) 8 SCC 883)

The divorce proceedings in various codified personal law including the Hindu Marriage Act, 1955 is carried out as per provision of said act. However, none of codified personal law provides for divorce under the proposition that “marriage has irretrievably broken down”. Article 142 of the Constitution of India extends power to grant divorce in case the “marriage has irretrievably broken down” and there is no hope for reconciliation.

In case of Smt. Kanchan Devi vs. Promod Kumar Mittal, 1996 SCALE (3)293, the Supreme Court held following:

 In view of the peculiar facts and circumstances of the case and being satisfied that the marriage between the appellant and the respondent has irretrievably broken down and that there ii no Possibility of reconciliation, we in exercise of our powers under Article 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce.”    

In case of Ashok Hurra vs. Rupa Bipin Zaveri [1997 (4) SCC 226], wherein the Supreme Court granted a decree of mutual divorce by exercising its extra-ordinary powers under Article 142 of the Constitution of India.

In Anil Kumar Jain vs. Maya Jain, Civil Appeal No.- 5952 of 2009, the Supreme Court laid following proposition:

“17. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13 or 13- B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13-B of the Hindu Marriage Act, 1955.”

         (Emphasis provided)

In ‘H’ vs ‘W’ and Anr., Civil Appeal No(s). 10277 of 2016, the Supreme Court held following in appeal from order of Delhi High Court:

 “…….……..In course of hearing, we have been apprised by Mr. Kapil Sibal, learned senior counsel for the appellant-husband and Mr. Rakesh Dwivedi, learned senior counsel for the respondent-wife that a petition under Section 13-B of the Hindu Marriage Act, 1955 was filed seeking mutual divorce and after expiry of six months, the husband under a mistaken impression did not accept the same but actually they intend to go for divorce. Be it noted, the husband and wife are present in Court. They also agree to get the marriage dissolved and this Court should pass a decree for divorce…….”

In Vijay Kapoor vs Anju Kapoor, Civil Appeal No. 10923 OF 2017, the Supreme Court held following:

“4. In the above circumstances, exercising our jurisdiction under Article 142 of the Constitution of India, the marriage between the appellant and the respondent is dissolved by a decree of divorce by mutual consent. The parties shall abide by the terms and conditions referred to in the Memo of Settlement dated 25.08.2017. The parties have also undertaken before this Court that their separation and divorce shall not stand in the way of cooperating with the marriage and other related functions of the children born to them.”

In A.V.G.V. Ramu vs. A.S.R. Bharathi, Civil Apeeal No. 22913 of 2017, the Supreme Court held following:

“12. In a situation like the one arising in the case, there is no reason for us to doubt the genuineness of the Agreement/MOU and its contents. Keeping in view the conduct of the respondent and further in the light of eight reasons set out above, we find this case to be fit one where we invoke our powers under Article 142 for passing a decree for dissolution of marriage between the parties in terms of the joint petition dated 30.12.2014 (Annexure -P-8).”

In Sudarsana Rao Gadde vs. Karuna Gadde, Civil Appeal No(S). 2287/2018, the Supreme Court held following:

……..Accordingly, the marriage between the appellant/Sudarsana Rao Gadde and respondent/Karuna Gadde is dissolved by a decree of divorce by mutual consent under Section 10A of the Indian Divorce Act, 1869. The Settlement dated 01.08.2017 arrived at between the parties is already on record and the same shall form part of this judgment.”

The Hon’ble Supreme Court has come to rescue of many couples, who have been fighting like “Kilkenny cats” and there is long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of Supreme Court under Article 142 of the Constitution and grant a decree of divorce.

Rajni Sinha

Advocate Bombay High Court

7738080174

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