SC starts hearing arguments on issue of dissolution of marriage by exercising power under Article 142

New Delhi: The Supreme Court Wednesday commenced hearing arguments on the issue of what could be the broad parameters for the exercise of power under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring them to the family court.

Article 142 of the Constitution deals with the enforcement of decrees and orders of the apex court to provide “complete justice” in just about any case before it.

A five-judge Constitution bench headed by Justice S K Kaul observed that under the Hindu Marriage Act, the divorce is based on fault theory but the irretrievable breakdown of the marriage could be a ground reality of the situation without getting into a blame game.

"Two very good people may not be good partners," said the bench, which also comprised Justices Sanjiv Khanna, A S Oka, Vikram Nath, and J K Maheshwari.

"Sometimes we have come across cases where people have even lived together for a considerable period of time and then marriage breaks down," it said.

Senior advocate Indira Jaising, who is assisting the court as an amicus curiae in the matter, said generally there are allegations and counter allegations when a divorce petition is filed.

On the issue of fault theory, Justice Kaul observed, "This is also, to my mind, very subjective. What is a fault theory?".

"See, somebody may say there are allegations made, she does not get up in the morning and give my parents tea. Is it a fault theory? You could have done the making of the tea better, maybe," he observed.

The bench observed that a lot of them are arising from the "social norm", where one thinks that the lady must do this or the gents must do this.

"And from there we attribute fault. This is another concern that I have that what we attribute is fault is not really a fault but it is understanding of a social norm how a particular thing ought to be done," Justice Kaul observed.

He said these norms are rapidly changing and this is the ground reality.

Jaising said that is why the apex court had earlier held that public policy is not frozen in time. The bench observed that in a divorce proceeding, should somebody must be attributed a fault. Justice Kaul said he has seen cases where the man was resisting even when the woman does not want anything as she had a better capacity to earn and was in a better position.

The arguments in the matter would continue on Thursday.

Two questions, including whether the exercise of such jurisdiction under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case, were earlier referred to a Constitution bench of the top court.

One of the questions, which has been referred to, is -- what could be the broad parameters for the exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the family court to wait for the mandatory period prescribed under section 13-B of the Hindu Marriage Act.

On September 20, the apex court said, "We do believe that another question which would require consideration would be whether the power under Article 142 of the Constitution of India is inhibited in any manner in a scenario where there is an irretrievable breakdown of marriage in the opinion of the court but one of the parties is not consenting to the terms."