Marriage can be dissolved on ground of ‘irretrievable breakdown’: SC, invokes Article 142

A constitution bench of the Supreme Court in a significant verdict on Monday, ruled that marriage between two consenting parties can be dissolved on grounds of irretrievable breakdown, reports Bar and Bench.

A five-judge bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari while pronouncing the verdict held that it can invoke its special powers under Article 142 of the Constitution of India to grant divorce on the ground of irretrievable breakdown of marriage, which is not yet a statutorily recognised ground.

The Constitution bench also held that the mandatory waiting period of six months for divorce prescribed under the Hindu Marriage Act can be dispensed with, subject to the requirements and conditions laid down in the previous judgments.

“Article 142 must be considered in light of the fundamental rights. It should contravene a non-derogable function of the Constitution. Court under the power is empowered to complete justice,” the Bench held.

The Court held that it has specified the factors on the basis of which a marriage can be held to be irretrievably broken down and how to balance out equities, specifically with regard to maintenance, alimony and the rights of the children, reports Live Law.

The original issue referred to the Constitution Bench was whether the mandatory waiting period for divorce by mutual consent as prescribed under Section 13B of the Hindu Marriage Act could be waived.

However, during the hearing, the Constitution Bench decided to consider the issue of whether marriages could be dissolved on the ground of irretrievable breakdown.

The Constitution Bench had reserved the judgement after concluding the hearings on September 29, 2022.

Last week, a two-judge bench had held that irretrievable breakdown of marriage can be construed as the ground of 'cruelty' to dissolve marriages.