Article 142 of the Indian Constitution

May 2, 2023

Under Article 142 of the Indian Constitution, the Supreme Court has the power to pass such a decree or make such an order as is necessary for doing complete justice in any cause or matter. This article allows the Supreme Court to grant a divorce decree directly to consenting parties in cases of an irretrievable breakdown of marriage. However, the order to do complete justice under Article 142 must not only be consistent with the fundamental rights guaranteed by the Constitution but cannot even be inconsistent with the substantive provisions of the relevant statutory laws. In the Union Carbide Corporation vs Union of India (1991) case, the Supreme Court stated that this article confers power at an entirely different level and of a different quality.

Filing a Petition for Divorce by Mutual Consent

Parties seeking a divorce by mutual consent under the Hindu Marriage Act can file a petition under Section 13B. The minimum period of separation required for such a petition is one year. Additionally, there is a mandatory waiting period of six months for a divorce decree under Section 13B(2) of the Hindu Marriage Act. However, this waiting period can be waived through an exemption application filed before the family court.

Exceptional Hardship and Depravity

In cases of “exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent”, a divorce petition can be filed before one year of the marriage under the Hindu Marriage Act.

Cooling-off Period and the Amit Kumar vs Suman Beniwal Case

In the Amit Kumar vs Suman Beniwal case, the Supreme Court held that the cooling-off period of six months under Section 13B(2) of the Hindu Marriage Act should be enforced where there is a chance of reconciliation, but it would be meaningless to prolong the agony of the parties to the marriage if there is no possibility of reconciliation.

Factors Considered by the Court

The Supreme Court has laid down that the court should be fully convinced and satisfied that the marriage is “totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward” before granting a divorce decree.

Second Motion and Waiver of Waiting Period

The minimum waiting period for a second motion before the court under Section 13B(2) of the Hindu Marriage Act is six months after the date of the presentation of the first petition. The Supreme Court has held that the mandatory waiting period can be waived through an exemption application filed before the family court. In the Shilpa Sailesh vs Varun Sreenivasan case, the court waived the mandatory waiting period for divorce under The Hindu Marriage Act and allowed the dissolution of the marriage on grounds of irretrievable breakdown even if one of the parties was not willing.

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