Article 142 and the Procedure for Divorce

Context: 

Recently, the Constitution Bench of the Supreme Court ruled that it can exercise its plenary power to do “complete justice” under Article 142(1) of the Constitution to dissolve a marriage on the ground that it had broken down irretrievably.

Observations of the Supreme Court in the Shilpa Sailesh vs Varun Sreenivasan case:

• The Supreme Court could, in the exercise of the power under Article 142, waive the mandatory six-month waiting period for divorce under The Hindu Marriage Act (HMA), 1955.
• It can allow the dissolution of the marriage on grounds of irretrievable breakdown even if one of the parties was not willing. 

Current procedure for Divorce:

• The HMA provides for “divorce by mutual consent”. 
• First petition: Both parties to the marriage must together file a petition to the district court on the ground that

• • They have been living separately for a period of one year or more,
  • They have not been able to live together,
  • They have mutually agreed that the marriage should be dissolved.

• Second petition: The parties must move a second motion before the court 

• • not earlier than six months after the date of the presentation of the [first] petition and 
  • not later than eighteen months after the said date, if the petition is not withdrawn in the meantime.
• The mandatory six-month wait is intended to give the parties time to withdraw their plea.
• A petition for divorce by mutual consent can be moved only after a year of the marriage. However, Section 14 of the HMA allows a divorce petition sooner in case of “exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent”.

Article 142 of the Constitution:

• Article 142 states that the Supreme Court “may pass such decree or make such order as is necessary for doing complete justice in any cause or matter, and any decree so passed or order so made shall be enforceable throughout the territory of India”.
• While the power available under Article 142 is sweeping, the SC has defined its scope and extent through its judgments. 
• Need to incorporate Article 142: 
  • The necessity for incorporating such an article into the Constitution was spelt out in the Constituent Assembly. 
  • The framers of the Constitution felt that this provision is of utmost significance to those people who have to suffer due to the delay in getting their necessary reliefs due to the disadvantaged position of the judicial system.
• Prem Chand Garg (1962) case: In this case, SC laid down that an order to do complete justice

1. 1. must not be consistent with the fundamental rights guaranteed by the Constitution
   2. must not be inconsistent with the substantive provisions of the relevant statutory laws.

• Bhopal gas tragedy case 1999: The court clarified that 

1. 1. Prohibitions on limitations on provisions contained in ordinary laws cannot, ipso-facto, act as prohibitions or limitations on the constitutional powers under Article 142. 
   2. It would be wholly incorrect to say that powers under Article 142 are subject to express statutory prohibitions.

• Laxmi Devi v. Satya Narayan case– Supreme Court had ordered the accused, under Article 142, to award compensation to the victim with whom he had sexual intercourse with a promise to marry and had later retracted his promise. Also, the order made clear that the accused should not be convicted of rape.
• Manohar Lal Sharma case– The Supreme Court said that it can deal with exceptional circumstances interfering with the larger interest of the public in order to enable trust in the rule of law.

Criticism of Article 142:

• Arbitrary use: The sweeping nature of these powers has invited the criticism that they are arbitrary and ambiguous. It is further argued that the Court then has wide discretion, and this allows the possibility of its arbitrary exercise.
• Subjective definition: Defining “complete justice” is a subjective exercise that differs in its interpretation from case to case.
• Lack of judicial accountability: Unlike the legislature and the executive, the judiciary cannot be held accountable for its actions. 
• Against separation of powers doctrine: The power has been criticised on grounds of the separation of powers doctrine, which says that the judiciary should not venture into areas of lawmaking and that it would invite the possibility of judicial overreach.

Supreme Court Bar Association vs Union of India case 1998

• The apex court held that the powers under Article 142 are supplementary in nature and could not be used to supplant or override a substantive law and “build a new edifice where none existed earlier”.
• The powers conferred by Article 142 are curative and cannot be construed as powers “which authorise the court to ignore the substantive rights of a litigant while dealing with a cause pending before it”.

State of Karnataka vs Umadevi case 2006

• The SC ruling clarified that “complete justice” under Article 142 means justice according to law and not sympathy, while holding that it will “not grant a relief which would amount to perpetuating an illegality encroaching into the legislative domain.”

                                                                                                                       News Source: Indian Express