The Supreme Court of India has passed a historic judgment on the 6-month waiting period for divorce, stating that it can be waived in cases of mutual consent, subject to certain conditions. The court also held that marriages can be dissolved on the ground of “irretrievable breakdown of marriage,” using its powers under Article 142 of the Constitution.

The Constitution Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari laid out factors that can determine when there will be an irretrievable breakdown of marriage. The bench also outlined how to balance out equities in terms of maintenance, alimony, and the rights of children.

The original issue referred to the Constitution Bench was whether the mandatory waiting period for divorce by mutual consent, as prescribed under Section 13B of the Hindu Marriage Act, could be waived by the Supreme Court using Article 142 to dissolve broken-down marriages between consenting couples without referring them to family courts for protracted judicial proceedings to obtain the decree of separation. During the hearing, the bench decided to consider the issue of whether marriages could be dissolved on the ground of irretrievable breakdown.

“Article 142 must be considered in light of the fundamental rights. It should contravene a non-derogable function of the Constitution. Court under the power is empowered to complete justice,” the bench said.

Article 142 of the Constitution deals with the enforcement of decrees and orders of the top court to do “complete justice” in any matter pending before it.

The case was referred to a five-judge bench seven years ago by a Division Bench of Justices Shiva Kirti Singh and R Banumathi (both retired) in a transfer petition. The judgment by the Constitution Bench is expected to have far-reaching implications as it will allow for a more expeditious and less contentious process for couples seeking a divorce by mutual consent. The ruling will also be applicable to other personal laws like the Muslim Personal Law and the Christian Marriage Act.

The decision of the Supreme Court to do away with the mandatory waiting period of six months for divorce through mutual consent will undoubtedly make it easier for couples to end their marriages. However, the bench has also emphasized the importance of balancing out equities, particularly in relation to the rights of the children and the issue of maintenance and alimony. This underscores the court’s commitment to ensuring that the interests of all parties involved are adequately protected.

It remains to be seen how this judgment will be received by various stakeholders, including family courts and legal practitioners, and whether it will result in a significant increase in the number of divorce petitions filed in the country. Nonetheless, it is clear that the Supreme Court’s decision represents a significant departure from the traditional approach to divorce in India and reflects a growing recognition of the need for more expeditious and less contentious ways of resolving disputes relating to marriage and family matters.

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