The Supreme Court of India has recently held that it can use its powers under Article 142 of the Constitution to directly grant a decree of divorce to consenting parties in cases of irretrievable breakdown of marriage, without referring the parties to a family court. This move has sparked a lot of discussion and debate regarding the process of divorce in India. In this essay, we will examine the current procedure under the Hindu Marriage Act, the issues with the current process, and the history and importance of Article 142.
Current Procedure Under the Hindu Marriage Act
Under the Hindu Marriage Act, 1955, both parties can file a petition for dissolution of their marriage by presenting a decree of divorce to the district court. The grounds for seeking divorce include living separately for a year or more, not being able to live together, or mutually agreeing to dissolve the marriage. Both parties seeking divorce have to wait between 6 to 18 months from the date on which they presented their petition to obtain the divorce decree. The six-month period is given so that the parties have ample time to withdraw their plea. These provisions apply when at least one year has elapsed since the marriage took place.
Additionally, divorce can be sought by either spouse on grounds like adultery, cruelty, desertion, religious conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death.
Issues with the Current Process
While the current process of seeking divorce under the Hindu Marriage Act is comprehensive, it can also be time-consuming and lengthy. If the parties wish to opt for a divorce more expeditiously, they can approach the Supreme Court under Article 142 for the dissolution of their marriage. This provision gives the country’s top court wide powers to do complete justice in a case before it.
What is Article 142 of the Constitution?
Article 142 of the Constitution has two clauses. Article 142(1) states that the Supreme Court in the exercise of its jurisdiction may pass such decree or order for doing complete justice. Article 142(2) states that the Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
Important Instances When Article 142 was Invoked
Article 142 has been invoked in various instances where the Supreme Court has exercised its wide powers to do complete justice in a case before it. One of the most notable instances was the Bhopal Gas tragedy case, where the Supreme Court awarded a compensation of $470 million to the victims and held that prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142.
Another instance was the Babri Masjid demolition case, where the Supreme Court ordered framing of a scheme by the Centre for the formation of trust to construct Ram Mandir at the Masjid demolition site in Ayodhya. The Supreme Court also banned liquor shops within a distance of 500 metres from National as well as State highways in order to prevent drunken driving.
History of Article 142
When a draft Constitution was prepared by the drafting committee and placed before the Constituent Assembly, Article 142 was actually numbered as Article 118. It was placed before the Constituent Assembly on May 27, 1949, for debate and got adopted on the same day without any debate.
Important Points:
👉 Under the Hindu Marriage Act, both parties can file a petition for dissolution of their marriage by presenting a decree of divorce to the district court.
👉 The grounds for divorce under the Hindu Marriage Act include living separately for a year or more, not being able to live together, or mutually agreeing to dissolve the marriage.
👉 Divorce can also be sought on other grounds like adultery, cruelty, desertion, religious conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death.
👉 If the parties wish to opt for a divorce more expeditiously, they can approach the Supreme Court under Article 142 for the dissolution of their marriage.
👉 Article 142 of the Indian Constitution gives the Supreme Court wide powers to do complete justice in a case before it.
👉 The Supreme Court can pass a decree or order for doing complete justice under Article 142(1).
👉 The Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself under Article 142(2).
👉 The Bhopal Gas tragedy case, Babri Masjid demolition case, and liquor sale ban case are some of the important instances when Article 142 was invoked.
👉 Article 142 was originally numbered as Article 118 in the draft Constitution and was adopted without any debate by the Constituent Assembly on May 27, 1949.
Why In News
The Constitution or a five-judge bench of the Supreme Court has ruled that it can utilize its powers under Article 142 of the Constitution to grant a divorce decree directly to willing parties in cases of irretrievable breakdown of marriage, without requiring the parties to go through the process of a family court.
MCQs about Article 142 of the Indian Constitution
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What is Article 142 of the Constitution?
A. An article that gives the Supreme Court wide powers to do complete justice in a case before it
B. An article that deals with the right to freedom of speech and expression
C. An article that gives the President the power to remove judges from office
D. An article that establishes the powers of the Parliament
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Under the Hindu Marriage Act, 1955, what are the grounds for seeking divorce?
A. Living separately for a year or more, not being able to live together, or mutually agreeing to dissolve their marriage
B. Adultery, cruelty, desertion, and religious conversion
C. Insanity, leprosy, venereal disease, and renunciation
D. All of the above
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What was the decision of the Supreme Court in the Bhopal Gas tragedy case?
A. The Supreme Court ordered the formation of a trust to construct Ram Mandir at the Masjid demolition site in Ayodhya
B. The Supreme Court banned liquor shops within a distance of 500 metres from National as well as State highways
C. The Supreme Court awarded a compensation of $470 million to the victims and held that prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142
D. None of the above
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