New Delhi: The Supreme Court on Thursday reserved the judgment on a batch of petitions raising common questions of law on the apex court’s exercise of its powers under Article 142 to dissolve a marriage.
The five-judge bench comprising justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari, heard submissions on – what were broad parameters for it to exercise its powers under Article 142 to dissolve a marriage and whether such powers could be exercised in the absence of the mutual consent of the parties. Several senior advocates were appointed as amicus curiae in the matter.
A counsel said that courts could at best attempt a reconciliation in the public interest, and the public interest demanded the severance of marital ties when a marriage has been wrecked beyond the hope of salvage. On the aspect of fault theory, the counsel added there may be causes for a divorce, but attributing faults to any or both the parties was unnecessary if the courts concluded that the marriage had irretrievably broken down.
Another counsel objected to the proposition that lower courts needed to be empowered to grant divorce if there was irretrievable breakdown of marriage. After hearing detailed arguments in the matter, the top court reserved its judgment.
The Supreme Court on Wednesday orally observed that two very good people may not be good partners and pointed out that in some cases people have lived together for a considerable time, yet the marriage breaks down.
Senior advocate Indira Jaising, amicus curiae, had contended that when a divorce petition is filed there are allegations and counter allegations.
The bench noted divorce is based on fault theory, under the Hindu Marriage Act, however irretrievable breakdown of the marriage could be a practical reality on ground – without getting into the issue of blaming each other.
On the aspect of fault theory, the bench said there could be allegations that the wife is not making morning tea for the parents and it is very subjective. It further added that social norms could be at the root of issues –a distinction on the nature of work, what should be done by a woman or a man.
The bench queried, from where it could attribute fault, since the social norms are changing, which is the ground reality. It added that what is attributed as fault, may not be a fault but understanding of a social norm.
In the family court, the parties would have to wait for the mandatory period prescribed under section 13-B of the Hindu Marriage Act. Article 142 deals with the enforcement of decrees and orders of the apex court to provide complete justice in a case.
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