A good divorce : SC Ruling

Subject : Polity

Section: Constitution

Concept :

The Supreme Court’s (SC) ruling on divorce matters on 1st May 2023 is seen as a good move to opt out of a bad marriage.
The Supreme Court of India has invoked its extraordinary powers under Article 142 of the Constitution to grant divorce by mutual consent to couples trapped in bitter marriages, without making them wait for the mandatory cooling-off period of six to 18 months prescribed by law.
It should be noted that according to Section 13B of the Hindu Marriage Act, 1955, a couple has to wait for 6 to 18 months for a local court to annul the marriage.

Highlights of the Supreme Court Observation

The court observed that there is no point in compelling the parties to go through the futile exercise of filing a petition under Section 13B(1) of the Hindu Marriage Act, 1955 or under Section 28 of the Special Marriage Act, 1954, as the case may be, and then wait for another six months if they have already taken a conscious decision to part ways.
The court said that such a situation may lead to mental cruelty and cause more harm than good to the parties involved.
The court also clarified that this power will be exercised only in exceptional cases where there is no chance of reconciliation and both parties have mutually agreed to end their marriage.
The court said that it will examine each case on its facts and circumstances and not lay down any general guidelines or criteria for granting divorce by mutual consent under Article 142.

Consensual Divorce

Consensual divorce is a type of divorce that is based on the mutual agreement of both spouses to end their marriage legally and peacefully.
It is the shortest, least expensive and least harmful way of a divorce, as it avoids prolonged litigation, bitter disputes and emotional trauma.
It also benefits the children of the divorcing couple, as it reduces their exposure to parental conflict and helps them cope with the transition.

Consensual divorce law in India

In India, consensual divorce can be obtained under two laws: the Hindu Marriage Act 1955 and the Special Marriage Act 1954.
Both these laws provide for a mutual consent divorce, where the spouses have to file a joint petition in the court and satisfy the following conditions:
They have been living separately for at least one year.
They have not been able to live together and have mutually agreed to dissolve their marriage.
They have settled all their issues regarding alimony, custody, maintenance, etc.
They have given their consent voluntarily and without any coercion or undue influence.
The court will verify the consent of the parties and try to reconcile them. If the court is satisfied that the conditions are met and there is no possibility of reconciliation, it will grant a decree of divorce by mutual consent.

Article 142 of the Constitution

Article 142 of the Constitution empowers the Supreme Court’s verdicts and rulings to be enforced.
It prescribes that in the performance of its jurisdiction, the top court may issue any verdict or order necessary to provide “complete justice” in just about any case before it.
This power is meant to supplement the existing legal work and not supplant it.
It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law.