From UPSC perspective, the following things are important :
Prelims level : Art. 142
Mains level : Discretionary powers of Judiciary
Recently the Supreme Court has used its extraordinary powers under Article 142 of the Constitution to grant divorce in a case of “irretrievable breakdown of marriage”.
Irretrievable breakdown of marriage
- It is defined as the situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.
- Currently, Hindu marriage law does not include “irretrievable breakdown of marriage” as a ground for divorce.
- However, the apex court in a number of cases has provided the said relief using the extraordinary powers that allow it to do “complete justice”.
- The Law Commission has twice recommended that “irretrievable breakdown” of marriage be included as a new ground for granting divorce to Hindus under this Act and the Special Marriage Act.
Present grounds for divorces
- The Hindu Marriage Act, 1955, lays down the law for divorce, which applies to Hindus, Buddhists, Jains, and Sikhs.
- Under Section 13 of the Act, the grounds for divorce include: “voluntary sexual intercourse with any person other than his or her spouse”; “cruelty”; desertion “for a continuous period of not less than two years immediately preceding the presentation of the petition”; “ceasing to be a Hindu by conversion to another religion”; and being “incurably of unsound mind”.
- In addition, Section 13B provides for “divorce by mutual consent”.
- Section 27 of The Special Marriage Act, 1954 provides the grounds for grant of divorce in the case of marriages solemnized under that Act.
- However, neither of the two Acts provide for “irretrievable breakdown of marriage” as a ground for divorce.
What is Article 142 of the Constitution?
- Article 142 provides discretionary power to the Supreme Court as it states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
- Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.
- The provision vests sweeping powers in the Supreme Court for the end of ensuring “complete justice” and is usually used in cases involving human rights and environmental protection.
- Last month, it was also used during the Ayodhya judgment, making the first such case where it was invoked for a civil dispute over an immovable property that involved private parties.