Marriage is typically a sacred ritual in which two individuals tie the knot and it is believed their bond can never be broken. In the early stages, according to manusmriti, a husband and wife could never be separated. However, over a period of time the concept of separation, ‘divorce’ came into the picture.
Divorce is essentially the breakdown of a marriage. There are various grounds for divorce that can be used like desertation, venereal disease, etc.
The couples that have tied the knot as per Hindu Marriage Act, 1977 have to dissolve their marriage as per the provisions of the said Act. Section 13 of Hindu Marriage Act deals with dissolution of marriage.
However, if the parties do not fall into any of those categories, the Supreme Court then has the power under Article 142 of the Indian Constitution to make a decision based on the Equitable principle, i.e., a decision that is not against the law and is given in order to administer justice.
The law also provides for Article 32 of the Indian Constitution, that helps in enforcing the rights of the individuals by filing a writ petition. In the case of Poonam v. Sumit Tanwar[1], it was held that neither Article 32 nor Article 226 can be invoked for filing a divorce on the ground of irretrievable breakdown.
The reason behind this is that the courts don’t want an aggrieved person to go round-about to achieve a remedy directly available to him/her under Article 142 of the Indian Constitution. The main aim of courts in the case of marriage dissolution is mutual settlement, and thus, the legislature believes in not giving any unnecessary provision for the same.
Written by- Gunjan S Jain, 5th Year BBA LLB, St. Joseph’s College of Law, Intern under legal vidhiya.
