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Context: The Supreme Court of India has invoked its extraordinary powers under Article 142 of the Constitution to grant divorce by mutual consent to couples trapped in bitter marriages, without making them wait for the mandatory cooling-off period of six to 18 months prescribed by law.
- The Supreme Court said that it can use the power under Article 142 of the Constitution to do "complete justice" in any case before.
- The court also highlighted that forcing such couples to stay married would only prolong their "misery" and affect their mental health.
Highlights of the Supreme Court Observation
- The court observed that there is no point in compelling the parties to go through the futile exercise of filing a petition under Section 13B(1) of the Hindu Marriage Act, 1955 or under Section 28 of the Special Marriage Act, 1954, as the case may be, and then wait for another six months if they have already taken a conscious decision to part ways.
- The court said that such a situation may lead to mental cruelty and cause more harm than good to the parties involved.
- The court also clarified that this power will be exercised only in exceptional cases where there is no chance of reconciliation and both parties have mutually agreed to end their marriage.
- The court said that it will examine each case on its facts and circumstances and not lay down any general guidelines or criteria for granting divorce by mutual consent under Article 142.
Article 142 of the Constitution
● Article 142 of the Constitution empowers the Supreme Court's verdicts and rulings to be enforced.
● It prescribes that in the performance of its jurisdiction, the top court may issue any verdict or order necessary to provide "complete justice" in just about any case before it.
● This power is meant to supplement the existing legal work and not supplant it.
● It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law.
- Consensual divorce is a type of divorce that is based on the mutual agreement of both spouses to end their marriage legally and peacefully.
- It is the shortest, least expensive and least harmful way of a divorce, as it avoids prolonged litigation, bitter disputes and emotional trauma.
- It also benefits the children of the divorcing couple, as it reduces their exposure to parental conflict and helps them cope with the transition.
Consensual divorce law in India
- In India, consensual divorce can be obtained under two laws: the Hindu Marriage Act 1955 and the Special Marriage Act 1954.
- Both these laws provide for a mutual consent divorce, where the spouses have to file a joint petition in the court and satisfy the following conditions:
- They have been living separately for at least one year.
- They have not been able to live together and have mutually agreed to dissolve their marriage.
- They have settled all their issues regarding alimony, custody, maintenance, etc.
- They have given their consent voluntarily and without any coercion or undue influence.
- The court will verify the consent of the parties and try to reconcile them. If the court is satisfied that the conditions are met and there is no possibility of reconciliation, it will grant a decree of divorce by mutual consent.
Good option but difficult to achieve
- Consensual divorce is not always easy to achieve, as it requires both spouses to cooperate and compromise on various issues, such as division of assets, alimony, child custody and support.
- Sometimes, one spouse may not be willing to consent to the divorce or may have unrealistic expectations or demands. In such cases, consensual divorce may not be possible, and the couple may have to resort to contested divorce, which is more time-consuming, costly and stressful.
- Consensual divorce also requires both spouses to be honest, respectful and flexible with each other, and to focus on their common interests and goals. By doing so, they can avoid unnecessary hostility and resentment, and preserve their dignity and self-esteem.
- It is a way forward for couples who want to end their marriage in a civilized and respectful manner. It can save them from a lot of hassle, money and pain, and allow them to move on with their lives more smoothly.
- It can also set a positive example for their children, who can learn from their parents how to handle conflicts and changes maturely and constructively.
- The court's decision has been welcomed by many legal experts and social activists who believe that it will help reduce the backlog of matrimonial cases and provide relief to couples who are suffering in unhappy marriages. However, some critics have also raised concerns about the possible misuse of this power by the court and the impact it may have on the sanctity of marriage as an institution.
Q. Which of the following statements is incorrect about consensual divorce?
A) Consensual divorce is a type of divorce where both spouses agree to end their marriage without any litigation or judicial intervention.
B) Consensual divorce can be granted by a court after a minimum period of separation, which varies depending on the jurisdiction.
C) Consensual divorce requires the spouses to submit a written agreement that covers all the aspects of their divorce, such as alimony, child custody, property division, etc.
D) Consensual divorce is always cheaper and faster than a contested divorce.
Consensual divorce is not always cheaper and faster than a contested divorce. Depending on the complexity of the case and the level of cooperation between the spouses, consensual divorce can still involve legal fees, court costs, mediation expenses, etc. Moreover, some jurisdictions may impose mandatory waiting periods or counselling sessions before granting a consensual divorce, which can prolong the process.