The Supreme Court can now grant a divorce on the grounds of irretrievable breakdown under Article 142 of the Constitution without sending the case to a family court. The waiting period of six to 18 months for mutual consent divorce has also been waived. This means that the Supreme Court can dissolve a marriage even if one party is not agreeable to it. A two-judge bench referred this issue to a larger bench in 2016 and appointed senior advocates as amici curiae. The five-judge bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari said the court’s powers under Article 142 are not limited by statutes. The bench outlined guidelines for granting a divorce while exercising its discretion. Irretrievable breakdown of marriage is not a ground available under the Hindu Marriage Act but the Supreme Court has been granting decrees of divorce using its jurisdiction under Article 142. Other grounds for divorce include adultery, desertion, conversion, and insanity. The five-judge bench reserved its judgment in September and last week said that though irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, it can be construed as “cruelty” under the law.
