Supreme Court's Power To Dissolve Marriage On Irretrievable Breakdown: An Analysis Of Article 142

Ria Singh, Amity Law School Noida, Amity University Noida

Introduction

Marriage as an institution has been a subject of great interest for the judicial system for a very long time. In India marriage is regarded as a sacrament, which is unbreakable in nature, even after death the bond conceived by marriage continues. Due to this very reason the procedure to end a marriage in India is distinct from any foreign law. Divorce was not recognized as an option to end the marriage but with the changing nature of the family, where the husband and the wife are at more of on an equal footing, the legal sanction of divorce to end a marriage in case either of the party wants out, is widely contemplated by the society. With the marriage now being more of a coalition, the procedure to end such an alliance when the coalition is not working out has to be given due consideration.

Divorce laws in India

In India the process of separation is majorly governed by The Hindu Marriage Act 19552. Specifically, Section 13 of the Hindu Marriage Act contains the grounds on which a couple can file for divorce. They have eight grounds for it: Adultery, mental unsoundness, cruelty, desertion, renunciation, conversion, venereal disease and one of the spouses missing for seven years.

However, Divorce by mutual consent a more diplomatic method to end the marriage is specified under Section 13B of the Act. It is when both the parties have been living separately for more than a year and both mutually came to a conclusion that their marriage is not working and the best possible solution is divorce. Both the parties must jointly file a petition only after one year of marriage. The petition can be moved earlier under section 14 of the Hindu Marriage Act only in the case of ‘exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent’. A cool off period of six-month is provided to give the parties time to withdraw their plea. If during the said period the parties are unable to reconcile, a decree of divorce is granted.