On Ground Of 'Irretrievable Breakdown Of Marriage,' Six Month Waiting Period For Divorce Not Mandatory: SC

In a recent development, the Supreme Court has asserted that it has the authority to dissolve marriages on the ground of "irretrievable breakdown of marriage", by utilising its powers under Article 142.

The court held that the six-month waiting period for divorce through mutual agreement can be eliminated with specific limitations.

According to a Constitution Bench of five justices, factors that lead to an irretrievable breakdown of marriage have been established.

The bench, comprising Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari, has also indicated a method for balancing equities with respect to maintenance, alimony, and the rights of children.

Initially, the Constitution Bench was meant to decide whether the mandatory waiting period for divorce by mutual consent prescribed by Section 13B of the Hindu Marriage Act could be waived by the Supreme Court.

The purpose of waiving the waiting period was to quickly dissolve marriages that had clearly broken down beyond repair without subjecting the involved couples to prolonged judicial processes.

However, in the course of the hearing, the Constitution Bench decide to consider the issue of whether marriages could be dissolved solely based on the grounds of irretrievable breakdown.

"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 said, reported NDTV.

Constitution's Article 142 deals with the enforcement of decrees and orders of the Supreme Court to do "complete justice" in any case that is currently under its consideration.

Seven years ago, a transfer petition prompted a Division Bench consisting of Justices Shiva Kirti Singh and R Banumathi (both of whom have since retired) to refer the case to a five-judge bench. The Constitution Bench heard arguments and reserved its judgment on 29 September 2022.