India’s Supreme Court issues landmark order on divorce

India’s top court says it can directly grant divorce on grounds of ‘irretrievable breakdown’ of marriage (Getty Images/iStockphoto)
India’s top court says it can directly grant divorce on grounds of ‘irretrievable breakdown’ of marriage (Getty Images/iStockphoto)

India’s Supreme Court held that it could grant a divorce to a couple on the grounds of “irretrievable breakdown” of marriage by using its extraordinary powers.

The landmark order on Monday will allow the estranged husband and wife to waive off a six-month-long waiting or cooling-off period to grant the divorce under certain conditions.

“We have held that it is possible for this court to dissolve marriage on the ground of irretrievable breakdown of marriage,” LiveLaw quoted the bench, led by Justice SK Kaul, as saying.

Senior advocate Indira Jaising, one of the lawyers in the case, said marriage laws in India needed sweeping reforms.

The apex court’s five-judge constitution bench held that it can dissolve a marriage on the ground that reconciliation or restoration of their marriage is no longer a possibility. The court said it can do so by invoking special powers granted to it under Article 142 of the Indian constitution.

The provision in question gives the court power to do “complete justice” by enforcement of decrees or orders in any matter pending before it.

The court said the mandatory waiting period of six months to grant divorce through mutual consent can be waived off – but is subject to some conditions.

Advocate Jaisingh said the Supreme Court moved away from the “strict theory of ‘fault’-based divorce to divorce based on irretrievable breakdown of marriage” and hailed the order.

The court said divorces can be granted even when one of the parties opposes the decree.

“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 bench said.

Under section 13B of India’s Hindu Marriage Act 1955, which lays out the procedure to get a divorce by mutual consent, both parties need to finish six to 18 months of a cooling-off period from the date they present their petition for divorce.

The waiting period before a court makes possible a decision that can allow the parties to withdraw their plea and allow reconciliation.

The judgement came in a 2014 case filed in the Supreme Court by Shilpa Sailesh and Varun Sreenivasan who sought divorce under Article 142.

The court listed out factors to determine the irretrievable breakdown of a marriage. These include the period of time the parties cohabited after marriage, nature of allegations and that the period of separation should be anything above six years or more.

The decision comes only days after the court said in a separate hearing that the irretrievable breakdown of a marriage can amount to cruelty under the Hindu Marriage Act, 1955 and can be a ground for divorce.

The court had, in a 27 April ruling, said “irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is”.

“A marriage, which has broken down irretrievably, in our opinion, spells cruelty to both the parties, as in such a relationship, each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13 (1) (ia) of the Act,” it added.