Delhi High Court clearly explained that the power to give divorce on the grounds of irretrievable marriage breakdown only goes to the Supreme Court and not to any High Court let alone family courts. The Delhi High Court clearly stated that family courts cannot give divorce because there has been an irretrievable marriage breakdown.
While shedding light on the theory of marriage breakdown, a bench of judges, including Justice Vikas Mahajan and Justice Sanjeev Sachdeva, pointed out that the High Court will not have the power to grant divorce directly. The constitution bench upheld that the Supreme Court can give divorce to parties who now approach them.
Can you use Article 142 to decide on divorce cases?
Without leaving any doubt to linger in the mind of anybody who wants to draw clear lines for family courts, one of the most vital questions of its jurisdiction is to grant a divorce on the grounds of the breakdown of the marriage. It is one of the most logical laudable, learned landmarks and leaders’ judgments that got hard pronounced in a very soft manner that family courts cannot give divorce on the ground of their being an irretrievable breakdown of the marriage.
It must be noted that the division of the bench of judges including Mr Justice Vikas Mahajan and Justice Sanjeev Sentence Deva had added that such a power will not be given to High Courts. Hence, there is no question of giving it to the family Courts. In addition, only the Delhi High Court made it clear that the power to run divorce will only go to the Supreme Court under Article 142 of the constitution, and there will be no denying it.
Can the High Court or family court dissolve a marriage?
Concerning the judgment of the constitution bench of the Supreme Court in the Shilpa Shailesh case, the power to give divorce on the ground of irretrievable background of marriage will go to the Supreme Court under Article 142 of the Indian constitution to do complete justice to both the parties involved. Such a bar will not go to the High Court or family courts.
Moreover, the division bench of judges associated with the Supreme Court, while exercising the discretionary powers under Article 142 of the Indian constitution, will take into account various factors, and the longevity of the period is a crucial one.
The court will be fully satisfied and convinced that the marriage is unworkable, it is emotionally dead, and it is beyond salvation; therefore, decision managers’ only solution and the only way for both parties to move forward is through separation. It is said that the marriage has irretrievably broken down and is to be determined formally and factually.
My opinion
The Supreme Court will try to act as a problem solver by hoping to balance out the equities between conflicting claims between both parties. Still, when deciding whether to exercise discussion, the court should consider the ignored substantive provisions. They might ignore substance and procedure laws because a decision will usually be made following a particular public policy, constitution, and fundamental general consultation. The Supreme Court has also said that the grant of divorce on the grounds of irretrievable marriage breakdown is not a matter of right. Still, discretion can be exercised with great caution and care, considering various factors to give complete justice to both parties.
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