NO LONGER WAITING FOR DIVORCE

Mandatory 6-month waiting period for divorce dispensed with by the apex court.

- Samir Ranjan Majumdar

In a significant judgment providing a great solace to the estranged couples, whose marriages have irretrievably broken down beyond any chance of salvation, passed in Transfer Petition (Civil) No. 1118 of 2014 (Shipla Sailesh vs Varun Srinivasan) on 1st May 2023 by a Constitutional Bench comprising Honourable Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari.

The Supreme Court held that it can dissolve marriages on the ground of "irretrievable breakdown of marriage" by exercising its plenary power to do "complete justice" under Article 142 of the Constitution of India. It further held that the mandatory waiting period of six months for divorce through mutual consent can be dispensed with, subject to conditions.

The Supreme Court has further added, "This Court, in the exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do 'complete justice' to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required also to balance the circumstances and the background in which the party opposing the dissolution is placed."

It may be mentioned here that Section 13B of the Hindu Marriage Act, 1955 (see box) has provisions for "divorce by mutual consent." To this effect, both parties to the marriage must file together a petition to the district court "on the ground that they have been living separately for one year or more; that they have not been able to live together, and that they mutually agree to the termination of marriage."