Apex Court can grant divorce using Article 142 powers on irretrievable breakdown of the marriage: Constitution Bench
The Supreme Court on May 1, 2023, held in the case titled Shilpa Sailesh v. Varun Sreenivasan that it can exert its plenary powers under Article 142 of the Constitution to award a verdict of divorce to assenting parties, in lawsuits of irretrievable breakdown of marriage.
A Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari maintained that the six months prescribed under the Hindu Marriage Act can be administered.
“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 declared.
The judgment came in as an outcome of a set of pleas pertaining to the usage of the top court’s plenary powers to disband a marriage between approving parties without referral to family courts to hold off for the mandatory duration specified under Section 13-B of the Hindu Marriage Act.
Article 142 empowers the apex court to lay down decrees and orders which are crucial for “doing complete justice” in any cause or case pending before it.
The issues that were involved in the case are as follows:
Whether the Supreme Court could wield its powers under Article 142 of the Constitution to break up a marriage, the wide parameters of such powers and whether the invocation of the said power was authorized in the absence of the reciprocal consent of the parties.
The lawsuit was directed to a five-judge Bench almost five years ago on June 29, 2016 by a Division Bench of Justices Shiva Kirti Singh and R Banumathi (both retired) in a transfer plea.
After hearing assertions, the Constitution Bench had earmarked its verdict on September 29, 2022.
Senior Advocates Indira Jaising, V Giri, Kapil Sibal, Dushyant Dave and Meenakshi Arora had been nominated amici curiae to aid the Court in the lawsuit.
Senior Advocates V Mohana and Jay Savla, and Advocate Amol Chitale also turned up in the matter.
Written by Sonakshi Misra, 2nd year (4th semester) B.A.LL.B. Hons. student at Atal Bihari Vajpayee School of Legal Studies, Chhatrapati Shahu Ji Maharaj University, Kanpur.
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