The Supreme Court on May 1 held that a court can directly grant divorce under Article 142 of the Constitution, in cases where the marriage has irretrievably broken down, without referring the parties to a family court first, where they must wait for 6-18 months for a decree of divorce by mutual consent.
Key points
- On the aspect of invoking Article 142 to grant divorce by mutual consent, the apex court recounted the long process involved under Section 13-B of the Hindu Marriage Act.
- First a couple seeking divorce by mutual consent had to file a joint petition in a local court. In it, they had to claim that they were living separately for a year or more and were unable to live together again. The duo had to then wait for six to 18 months before making a second motion before the same court. This time, they had to confirm their decision to divorce.
- Following which, the judge would make a formal inquiry before granting them a decree of divorce by mutual consent.
Article 142
- Article 142 provides a unique power to the Supreme Court, to do “complete justice” between the parties, where, at times, the law or statute may not provide a remedy.
- While the powers under Article 142 are sweeping in nature, SC has defined its scope and extent through its judgments over time.
- Prem Chand Garg case: The majority opinion demarcated the contours for the exercise of the Court’s powers under Article 142(1) by saying that an order to do complete justice between the parties must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.
- Union Carbide Corporation vs Union of India: The SC in 1991 ordered UCC to pay $470 million in compensation for the victims of the Bhopal Gas tragedy.
- In 1998, the apex court in ‘Supreme Court Bar Association vs Union of India’ held that the powers under Article 142 are supplementary in nature and could not be used to supplant or override a substantive law and “build a new edifice where none existed earlier”.
Criticism of Article 142
- The sweeping nature of these powers has invited the criticism that they are arbitrary and ambiguous. It is further argued that the Court then has wide discretion, and this allows the possibility of its arbitrary exercise or misuse due to the absence of a standard definition for the term “complete justice”.
- Defining “complete justice” is a subjective exercise that differs in its interpretation from case to case. Thus, the court has to place checks on itself.
- Unlike the legislature and the executive, the judiciary cannot be held accountable for its actions.
- The power has also been criticised on grounds of the separation of powers doctrine, which says that the judiciary should not venture into areas of lawmaking and that it would invite the possibility of judicial overreach.
