Invocation of supreme court's Inherent jurisdiction in broken marriages
Keywords:
divorce, matrimonial fault, mutual consent, irretrievable breakdown marriage, inherent jurisdiction, supreme courtAbstract
"Till death do us apart" the myth of perpetual bond of cohabitation in a Sacrosanct marriage has been faded with time. The social taboo attached to divorce has been diluted and has been accepted as a remedy rather than a curse. There has been a journey in divorce cases from guilt theory to consent and further to breakdown of marriage. Irretrievable Breakdown of Marriage though received the attention of Law Commission of India[1], Judiciary [2] and attempts have been made by the legislature[3] but could not be substantiated in the Family Jurisprudence of India. This paper attempts to focus upon the judgments of the Supreme Court where the inherent jurisdiction under Article 142 of the Constitution has been invoked for doing complete justice in matrimonial disputes. The author tends to limit the scope of the paper to Hindu Marriage Act, 1955.
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References
Law Commission of India, 71st Report 1978 and 217th Report 2009.
In certain judgments Hon'ble Supreme Court has invoked its inherent power under Article 142 for doing the complete justice between the parties.
Marriage Laws Amendment Bill was introduced twice in 2010 and 2013 for incorporating Irretrievable Breakdown of Marriage as a separate ground of divorce but could not be passed.
Section 23 Decree in Proceedings: (1) In any proceedings under this Act, whether defended or not, if the court is satisfied that – (a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief.
Law Commission of India, 71st Report 1978, p. 3.
AIR 2006 SC 1675.
Irretrievable Breakdown of Marriage – Another Ground for divorce.
Section 13(1A) of Hindu Marriage Act, 1955 and like provisions in different statutes.
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Paras Diwan, Modern Hindu Law, 1993, p. 73.
Constitution of India, 1950, Article 142.
(1998) 4 SCC 409.
13B Divorce by mutual consent – (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the marriage laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.
the period of interregnum is meant to give time and opportunity to the parties to reflect on their move.
Rajat Pradhan, Ironing out the Creases: Re-examining the Contours of Invoking Article 142(1) of the Constitution, (2011) 6 NALSAR Student Law Review 1 available at https://nslr.in/wp-content/uploads/2019/03/NSLR-Vol-6-No-1.pdf visited on May 3rd 2020.
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Id. at p 423 para 29.
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AIR 2011 SC 1637: (2011) 5 SCC 234. See also SmrutiPahariya v. Sanjay Pahariya, AIR 2009 SC 2840.
Chanderkala Trivedi v. Dr. S. P. Trivedi (1993) 4 SCC 232; V. Bhagat v. D. Bhagat (1994) 1 SCC 337; A. Jayachandra v. Aneel Kaur AIR 2005 SC 534; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Samar Ghosh v. Jaya Ghosh 2007 (3) SCJ 253; K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226.
(1995) 2 SCC 7.
(2017) 9 SCC 632.
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The Marriage Laws Amendment Bill, 2013 was passed in Rajya Sabha and lapsed before it could be considered by the Lok Sabha, as the Lower House was dissolved upon completion of its term and general elections were held. The Bill sought to amend Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to incorporate the Irretrievable Breakdown of Marriage as a third ground of divorce by inserting Section 13(C ), (D), (E),and (F) after Section 13(B) in Hindu Marriage Act, 1955 and Section 28(A), (B), (C ), and (D) after Section 28 in Special Marriage Act, 1954.
Kumar, S. (2022). A quest for sustainium (sustainability Premium): review of sustainable bonds. Academy of Accounting and Financial Studies Journal, Vol. 26, no.2, pp. 1-18
Allugunti, V.R. (2019). Diabetes Kaggle Dataset Adequacy Scrutiny using Factor Exploration and Correlation. International Journal of Recent Technology and Engineering, Volume-8, Issue-1S4, pp 1105-1110. The separation between the parties continued for a sufficient length of time ( 3 years) and one of them presents a petition for divorce, it can be presumed that the marriage has broken down.
In certain judgments Hon'ble Supreme Court has invoked its inherent power under Article for doing the complete justice between the parties.
Chandralekha Trivedi v. Dr. S. P. Trivedi , (1993) 4 SCC 232 ; Kanchan Devi v. Promod Kumar Mittal, AIR 1996 SC 3192 ; A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534 ; Krishna v. Somnath, (1996) DMC 667 (P & H) ; Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675 ; Dinesh Kumar Mandal v. Mina Devi, AIR 2005 Jhar 77 ; Bhulu Rani Dey v. Rubi Dey, AIR 2012 Gau 128 ; Puja Suri v. Bijoy Suri , Allahabad HC on 26-05-2016; Sukhendu Das v. Rita Mukherjee (2017) 9 SCC 632; R. Srinivas Kumar v. R. Shametha MANU/SC/1382/2019, MuneeshKakkar v. Nidhi Kakkar(2020) 14 SCC 657, Sivasnkaran v. Santhineelam 2021 SCC OnLine SC 702 .
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