Article 142

Article 142

Subject : Polity

Section: Judiciary

Why in News?

A five-judge Constitution Bench of the Supreme Court ruled that it can exercise its plenary power to do “complete justice” under Article 142,to directly grant divorce to couples.

What is Article 142?

• Article 142 provides discretionary power to the Supreme Court (SC). Subsection 1 of Article 142 states that the SC in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Any decree so passed or order so made shall be enforceable throughout the territory of India.
• If at times law or statute did not provide a remedy, the Court can extend itself to put an end to a dispute in a befitting manner.
• An order to do complete justice must be consistent with the fundamental rights and cannot be inconsistent with the substantive provisions of the relevant statutory laws.
• Used in judgements related to cleaning of Taj Mahal, release of A.G. Perarivalan, Bhopal gas tragedy case, etc.

Current Procedure for Divorce

Governed by the Hindu Marriage Act (HMA), 1955– “divorce by mutual consent”.

• Section 13B of the HMA – First petition to be filed to the district court on the ground of living separately for 1 year or more, unable to live together and mutually consenting for dissolution of marriage.
• Section 13B(2) of the HMA – Second motion to be filed by the parties before the court – between 6 and18 months of presenting first petition. First petition not withdrawn in the meantime. The mandatory 6 month wait – intended to give time to withdraw the plea.
• Court will pass a decree of divorce, if it’s satisfied, after proper hearing of parties and inquiry
• Section 14 of HMA – divorce petition can be moved sooner than mandatory 1 year period after marriage due exceptional hardship of petitioner or exceptionally bad moral of the partner. 6 months cooling-off period for getting decree of divorce can be waived off in this case.

Conditions for using Article 142 for divorce cases

• A person cannot directly approach the SC and seek dissoluion of marriage on the ground irretrievable breakdown. It can be used only as a remedy for a competent court’s judgement. Writ jurisdiction under Articles 32 and 226 cannot be used to circumvent due procedure.
• The decision to exercise the power under Article 142(1) should be based on considerations of fundamental general conditions of public policy and specific public policy. The fundamental general conditions of public policy include fundamental rights, secularism, federalism and other basic features of Constitution. The specific public policy was defined by the court to mean “some express pre-eminent prohibition in any substantive law.

Article 32 – right to constitutional remedy

• It is a fundamental right, stating that individuals have the right to approach the SC to seek enforcement of other fundamental rights guaranteed by the Constitution.
• The SC has power to issue directions or orders or writs including habeas corpus, mandamus, prohibition, certiorari and quo-warranto for enforcing any of the fundamental rights.
• This is an original but not exclusive jurisdiction of SC. It is concurrent with high court’s jurisdiction under Article 226.

Article 226

Not a fundamental right but a constitutional right that empowers a High Court (HC) to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo warranto, for enforcing any of the fundamental rights or for any other purpose. For any other purpose means – enforcing ordinary legal right also. So HC has wider writ jurisdiction than SC.

Consequences of the Judgement

• SC is not bound by the procedural requirement to move the second motion.
• SC can waive off the 6 month mandatory wait for getting a divorce decree in exceptional case of irretrievable breakdown of marriage.

Factors to decide Irretrievable Breakdown of Marriage

SC determined the following factors

• The period of time that the parties had cohabited after marriage;
• When the parties had last cohabited;
• Nature of allegations made by the parties against each other and their family members;
• Orders passed in the legal proceedings from time to time;
• Cumulative impact on the personal relationship;
• Whether, and how many attempts were made to settle the disputes by a court or through mediation, and when the last attempt was made.