Grant of Divorce ON the exercise of power under Article 142

Grant of Divorce in the exercise of power under Article 142of the Constitution of India:

Whether the Supreme Court grant divorce in the exercise of power under Article 142(1) of the Constitution of India when there is a complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer? 

The above question was placed before the constitution bench of the Hon’ble Supreme Court in a case Transfer Petition (C) No.1118 of 2014. The reason behind referring the matter to the constitution bench was that there were conflicting decisions of the coordinate benches on the issue, thus the matters were referred to the constitution bench consisting of five Judges. The constitution bench of the Hon’ble Supreme Court has formulated three questions which are mentioned herein below- 

1. The scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India;

2. Secondly, in view of, and depending upon the findings of this bench on the first question, whether this Court, while hearing a transfer petition, or in any other proceedings, exercise power under Article 142(1) of the Constitution of India, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and dispose of other/connected proceedings under the Protection of Women from Domestic Violence Act, 20059, Section 125 of the Code of Criminal Procedure, 1973 or criminal prosecution primarily under Section 498-A and other provisions of the Indian Penal Code, 1860. If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142(1) of the Constitution of India is an ancillary issue to be decided; and

The third issue, which is of considerable importance, is whether this Court can grant divorce in the exercise of power under Article 142(1) of the Constitution of India when there is a complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer. 

After relying on several decisions and discussions on the issues of law and fats, the court came to the conclusion that under-

 The scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India.

This question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered in terms of paragraphs 8 to 13, inter alia, holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. While deciding whether to exercise discretion, this Court must consider the substantive provisions as enacted and not ignore the same, albeit this Court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a ‘cause or matter’.

In view of, and depending upon the findings of this bench on the first question, whether this Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and dispose of other/connected proceedings under the Domestic Violence Act, Section 125 of the Cr.P.C., or criminal prosecution primarily under Section 498-A and other provisions of the I.P.C. If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142 of the Constitution of India is an ancillary issue to be decided.

In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this Court, in view of the settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India.

Whether this Court can grant divorce in the exercise of power under Article 142(1) of the Constitution of India when there is a complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?

This question is also answered in the affirmative, inter alia, holding that this Court, in the exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is 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.