Supreme Court's Power to Dissolve Marriage under Article 142

    Posted on 1 May, 2023 by Shubhangi Singh

    Supreme Court's Power to Dissolve Marriage under Article 142


    Since ancient times, marriages in India have been considered as sacramental unions between man and woman that cannot be broken. Today, while such perception regarding marriages has changed, our personal family law system still aims to prevent dissolution of marriages by encouraging reconciliation between parties seeking divorce. Under Section 13 of Hindu Marriage Act, parties may seek divorce through mutual consent if they have not been cohabiting for more than an year. However, they are required to go through a period of 6 months called the cooling off period from the date of filing the petition before the passing of final divorce decree giving them time to reconsider or withdraw the plea. The question with respect to the mandatory nature of such cooling period has come up in a number of cases such as in the case of Amardeep Singh v. Harveen Kaur where it was held that the cooling off period can be waived by the court where the proceedings have remained pending for long time in the courts.

    Recently, this issue arose in connection with another significant case of Shilpa Sailesh vs. Varun Sreenivasan wherein the couple sought divorce through mutual consent on the ground of irretrievable breakdown of marriage.


    • 2014: parties moved to Supreme Court seeking divorce under Hindu Marriage Act, 1955 invoking its powers under Article 142 of Constitution of India, as the marriage had been irretrievably damaged
    • 2015: SC granted divorce by invoking powers under article 142
    • 2016: Supreme Court appointed Senior Advocate Indira Jaisingh, Dushyant Dave, and Meenakshi Arora as amicus curiae and referred the matter to a Constitution Bench.
    • September 20, 2022: The matter was heard by a Constitution Bench led by Justice Sanjay Kishan Kaul. The court noted that it would have to determine that how to apply Article 142 of the Constitution to dissolve a marriage when one of the spouses does not consent to a divorce
    • 1stMay 2023: The Supreme Court decision with respect to exercising its vast powers under Article 142 of the Constitution to dissolve marriages between consenting couples without referring them to family courts and waiving offmandatory waiting period of six months for divorce through mutual consent subject to conditions.


    The Supreme Court bench consisting of Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari passed a landmark verdict with respect to this case. It considered two main issues. One, whether the cooling period prescribed under Section 13B of Hindu Marriage Act can be waived off by the Supreme Court under Article 142 of the Indian Constitution. Two, whether the court can exercise such powers under Article 142 in cases of complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer.

    With respect to the first issue,  it was laid down that the Supreme Court can exercise its plenary powers under Article 142 of the Constitution of India to waive off the waiting period of six months for couples seeking divorce through mutual consent. Article 142 states that the  Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.  In the present case, Advocate Meenakshi Arora contended that the Supreme Court was not bound by statutory law while exercising its extraordinary jurisdiction under Article 142, which embodied the notions of justice, equity and good conscience.

    With respect to the second issue, the Supreme Court’s power to grant divorce under Article 142 was upheld with respect to cases of irretrievable breakdown of marriage where mutual consent of parties is not mandatory. Senior Advocate Indira JaiSing made a notable argument by highlighting that the right to exit a marriage is protected as one’s fundamental right under article 19 and 21 of the Constitution and theories which fail to recognize irretrievable breakdown of marriage as ground for divorce should not be considered.  It has also been held in the Shri Rakesh Raman vs. Smt Kavita case that irretrievable breakdown of marriage can be read under the grounds of cruelty, under S13 (1) (a) of the Hindu Marriage Act.

    Thus, the Supreme Court’s current favourable position with respect to the wide scope of Article 142 of the Constitution will lay down the stepping stones for a significantly easier and expedited procedure for seeking divorce under the Hindu Marriage Act.

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    Tags: Divorce, Hindu Marriage Act, Irretrievable Breakdown of Marriage, Article 142




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