Central idea: Supreme Court has ruled that it can dissolve a marriage on the ground of irretrievable breakdown, using its power under Article 142(1), without referring the parties to family court for waiting period of 6-18 months for mutual consent divorce.
What is Article 142?
Article 142 titled ‘Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.’ has two clauses:
[1] Article 142(1)
- The Supreme 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.
- Any decree so passed or order so made shall be enforceable throughout the territory of India.
- It may be in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
[2] Article 142(2)
- The Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
History of Article 142
- When a draft Constitution was prepared by the drafting committee and placed before the Constituent Assembly, Article 142 was actually numbered as Article 118.
- It was placed before the Constituent Assembly on May 27, 1949 for debate but got adopted on the same day without any debate.
- This was possibly because everyone agreed that in order to ensure judicial independence, the highest court of the country must be empowered with plenary power to do complete justice.
Article 142 in Divorce Cases
(1) Current Divorce Process
- The Hindu Marriage Act allows for “divorce by mutual consent.”
- Both parties must file a petition to the district court, citing that they have been living separately for at least one year and mutually agree to dissolve the marriage.
- The parties must then move a second motion before the court, no earlier than six months after filing the first petition and no later than 18 months after the same date.
(2) Factors considered for irretrievable breakdown
The Court must be convinced that the marriage is “totally unworkable, emotionally dead, and beyond salvation.” The following factors can be considered:
- 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.
- The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.
- It is necessary to evaluate the factors according to the economic and social status of the parties, including their educational qualifications, whether they have any children, their age, and whether the spouse and children are dependents.
Try this PYQ from CSP 2019:
Q.With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?
- The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.
- The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.
- In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.
- State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.
Post your answers here.
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