Can dissolve marriage on ground of 'irretrievable breakdown', says SC

The apex court has said that the 'cooling off' period of six months, which is given to a couple to reconcile, can be dispensed if certain conditions are met

The Supreme Court on Monday said it can grant divorce on the ground of irretrievable breakdown of marriage, by invoking its special powers.

The apex court said that the ‘cooling off’ period of six months, which is given to a couple to reconcile, can be dispensed if certain conditions are met.

This also marks a departure from the fault theory, where the causes of divorce are attributed to faults to any or both parties.

The judgment said the grant of divorce on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion that is to be exercised with great care and caution.

"This Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead, and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established,” it held.

"Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations", the court said.

The court said that "it would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery, and torment shall continue".

A Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari held, "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".

Article 142 provides discretionary power to the Supreme Court.

However, this does not mean parties can directly approach the Supreme Court(under Article 32) but have to go through the usual channels(tribunals, redressal forums, family courts).

"Irretrievable breakdown of marriage" is not a statutorily recognised ground for divorce so the issue was referred to a Constitution Bench to decide whether the powers under Article 142 can be invoked to dissolve the marriage on a ground which is not statutorily accepted.