Article 142 of the Constitution of India as a repository to

justice in matrimonial litigation.

Article 142 of the Constitution of India, titled ‘Enforcement of

decrees and orders of the Hon’ble Supreme Court as to discovery,

etc.’ has two clauses - Article 142 (1) and Article 142 (2).

Article 142(1) reads the Hon’ble Supreme Court in the exercise of its

jurisdiction may pass such decree or make such order as is necessary

for doing complete justice in any cause or matter pending before it.

The Constituent Assembly during its debates modified it as “The

Supreme Court in the exercise of its jurisdiction may pass such decree

or make such order as is necessary for doing complete justice in any

cause or matter pending before it”. It is this draft which was finally

adopted as Article 142.

Any decree so passed or order so made shall be enforceable

throughout the territory of India in such manner as may be prescribed

by Hon’ble Supreme Court or under any law made by Parliament.

Tracing the Origins of Article 142

The draft Constitution originally numbered Article 142 as Article 118,

which was presented to the Constituent Assembly for deliberation on

May 27, 1949. The article was passed the same day without any

debate, suggesting a consensus that the nation's highest court should

possess full power to deliver perfect justice to uphold judicial

independence.

Article 142 is supported by Articles 32 (Right to constitutional

remedies) , Article 141 (The decisions of the Supreme Court are

binding on all courts within India), and Article 136 (Special Leave

petition) in this endeavour. This is often described as judicial

activism. It has regularly overridden laws enacted by Parliament to

deliver "complete justice,"

It was held in the Prem Chand Garg vs Excise Commissioner, U.

P., Allahabad on 6 November, 1962 that the order to do complete

justice must be consistent with the fundamental rights and the

substantive provisions of the relevant statutory laws.

Basically, the power enshrined under Article 142 of Constitution of

India is inherent power of Apex Court, therefore it can be safely

concluded that power under Article 142(1) is a repository of

numerous powers which has been left ‘undefined and uncatalogued’

so that it remains elastic enough to be moulded in the given situation.

Over the years, Hon’ble Supreme Court has in real sense expanded

the scope of the of Art. 142 of the Constitution of India and justifying

it on the parameters of the Basic Structure and thus a three-judge

Bench decision in Delhi Judicial Service Association v. State of

Gujarat, 1991 AIR 2176 the Supreme Court expanded its power to

new heights by declaring Article 142 as a part of basic structure of

the Constitution.

In many landmark cases Hon’ble Supreme Court has extolled and set

down the powers under the article 142 of the constitution as in the

case of M. Siddiq v. Mahant Suresh Das 9 November 2019 SC

1420, popularly known as the Ayodhya dispute, the Hon’ble

Supreme Court had exercised the powers mentioned under Article 142

of the Constitution in order to achieve complete justice in regard to a

controversy which touched the sentiments of public at large, and the

peace and brotherhood of the citizens.

The Bhopal Gas Tragedy Case, was one of the chief instances where

the Supreme Court had exercised Article 142 where the court ordered

to award compensation to the victims of an accident arising out of

leakage of fatal gases and placed itself in a position above to the

Parliamentary laws, as provisions highlighted under Article 142.

Then in Supreme Court Bar Association v. Union of India AIR

1998, the Hon’ble Supreme Court created a new edifice to the rights

of substantive rights of the litigant by introducing curative remedy to

fill lacunae in the legal system.

Now, in the pursuit of justice, exercising its plenary powers of

Article 142, the HON’BLE SUPREME COURT has finally

intervened in cases of ‘irretrievable breakdown,’ of marriages

governed by Hindu law.

Keeping this aspect in the core of this article it can be understood

that Hindu marriage is a sacred ceremony that holds great

significance in Hindu culture and was considered a sacrament and a

lifelong commitment between a man and a woman. Hindu marriages

were guided by ancient Hindu scriptures and the rituals and traditions
across different regions and communities. The Indian Parliament in

1955 enacted The Hindu Marriage Act laying down a legal framework

governing Hindu marriage in India. The aim of the act was to regulate

and codify the traditional Hindu marriage customs and ceremonies

and the also to introduce the concept of Divorce in Hindu Marriage.

The Hindu Marriage Act provided for divorce under certain

circumstances as a right to both the spouses. The grounds for divorce

were a sort of justifications under the law to get out of a union which

was considered sacramental in nature. The grounds for divorce

however varied depending on the social structure and place of woman

in Hindu society and thus provided grounds like adultery, cruelty,

desertion, conversion to another religion, mental disorder, and

incurable diseases to both the spouses.

The Hindu Marriage Act went further in introducing a concept of

making marriage a nullity out of free consent of the parties introduced

a provision of divorce by mutual consent where the parties decide that

they do not want to remain married to each other or cannot live with

one another, they can seek divorce by mutual consent under Section

13B of the Hindu Marriage Act.

The Section 13B however has its limitation as the spouses can jointly

file a petition seeking divorce under Section 13B before the family

court, which possesses the jurisdiction to pass such a decree of

divorce under Section 13B on a plea that the parties have been living

separately for a period of at least one year. The term living separately

here connotes that the parties must not live together as husband and

wife, however, it does not say that the parties cannot live under the

same roof if they are filing a petition for divorce by mutual consent.

The important factor that has to be addressed is that there is no

possibility of them living together as husband and wife. The parties at

the time of filing the petition for divorce must mutually agree on the

same, however, the consent can be withdrawn unilaterally if one of

the spouses in the waiting period is of the opinion that he or she does

not want a divorce.

However, over the years it was felt that even after such liberal

provision to make the marriage either work or dissolve in dignified

manner the court were confronted with a situation where parties found

the marriage no working immediately after marriage or could not bear

to be together even to wait for due course of law to get them

separated. Thus was born the concept of irretrievable breakdown of

marriage. This term is a mere expression of the fact that the marriage

has deteriorated to a point where there is no possibility of

reconciliation.

However, the legislation was silent to this aspect and for a valid

reason that marriage was considered to be an exception to Hindu way

of marriages. The courts were however confronted with harsh realities

of life where couples were in such situation that not only, they but

even the judges were of belief that there is absolutely no possibility of

reconciliation or the delay in dissolution of marriages will result in

defeating the very right of the party.

On May 1st, 2023 a Hon’ble Constitution Bench delivered a

unanimous judgment in the Shilpa Sailesh v Varun Sreenivasan

May, 2023 case. The Bench held that the Hon’ble Supreme Court

can directly grant a divorce on grounds of ‘irretrievable

breakdown of marriage’ under Article 142 of the Constitution.

The Bench further held that the cooling-off period poses a hindrance

in cases where there is an ‘irretrievable breakdown of marriage,’

indicating an unavoidable divorce. Nevertheless, they stressed the

significance of the time gap as it provides an opportunity for the

parties to assess and reconsider their decision to end the marriage. The

period may only be waived when the Court determines that the

marital relationship is irreparable.

The bench also clarified that none of the party has the right to move

before the HON’BLE SUPREME COURT directly to seek divorce

claiming “irretrievable breakdown of marriage” the HON’BLE

SUPREME COURT alone has the discretionary powers under Article

142 to dissolve a marriage that has broken down irretrievably.

The HON’BLE SUPREME COURT may go beyond the bounds of

procedural and substantive law to achieve the ‘ends of justice’.

As Section 13B of the Hindu Marriage Act, 1955, lays down the

procedure for divorce by mutual consent of both parties. This includes

a cooling period of 6-18 months after making a joint application for

divorce. If the application is not withdrawn during this period, the

concerned court will continue proceedings and grant divorce. The

Bench held that under Article 142 the HON’BLE SUPREME

COURT is not bound by these procedural requirements and can grant

the decree before such period, even when the main case is pending

before a Family Court.

Some factors to be considered before determining whether a marriage

is irretrievably broken down are:

 Duration of cohabitation after marriage

 Last time the parties cohabited

 Nature of allegations made by the parties against each other

 Attempts to settle disputes between the parties

 A sufficiently long period of separation

Conclusion

The Hon’ble Supreme Court of India is the apex court and has been

occasionally referred to as the guardian of fundamental rights of the

citizens. It’s primary function is to govern justice, equity, liberty and

moral turpitude. This court also upheld the Doctrine of Basic

Structure. Therefore, the use of article 142(1) by the Hon’ble Supreme

Court of India in matrimonial disputes relating to irretrievable

breakdown is justified and righteous on the grounds of delivering

complete justice.