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       ISSUE

1. Whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by the Court in exercise of its jurisdiction under Article 142 of the Constitution?

2. What could be the broad parameters for exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed under Section 13- B of the Hindu Marriage Act.

INTERPRETATION 

1. ARTICLE 142

Article 142(1) of the Constitution of India grants the Supreme Court wide-ranging powers to pass decrees or make orders necessary for doing complete justice in any cause or matter pending before it. This provision is unique and sets India's constitution apart from most other major written constitutions in the world. The power bestowed upon the Supreme Court under Article 142(1) is inspired by the concepts of justice, equity, and good conscience.

The Supreme Court's power to do complete justice is not limited to strict application of the law but extends to equitable considerations when the law alone is inadequate to achieve a just outcome. This power of equity enables the Court to pass orders that accord with justice, even if they deviate from the strict application of the law. However, it is important to exercise this power with caution and not disregard the substantive mandates of the law based on underlying fundamental public policy issues.

The phrase "complete justice" in Article 142(1) encompasses both equity in general (liberal and humane interpretation of the law) and particular equity (liberal and humane modification of the law in exceptional cases). It allows the Court to fill in the gaps in the law, soften its rough edges, and ensure a just and compassionate outcome. This power gives precedence to equity over law, but it should be regulated and contained within the limits set by the Constitution.

While exercising jurisdiction under Article 142(1) of the Constitution, the Court acts within the four corners of the Constitution itself. It does not encroach upon the legislature's power to legislate or interfere with the separation of powers between the legislature, executive, and judiciary. The power to do complete justice is an integral part of the Court's decision-making process in a cause or matter, with the utmost consideration for justice as its guiding spirit.

The term "cause or matter" in Article 142(1) encompasses a broad range of proceedings, both civil and criminal, interlocutory and final, before or after judgment. It covers almost every kind of proceeding in court. The Court's power under Article 142(1) is of a different level and quality compared to the powers conferred by ordinary laws. Prohibitions or limitations contained in ordinary laws cannot automatically act as restrictions on the constitutional powers under Article 142. However, the Court should take note of express prohibitions in substantive statutory provisions based on fundamental principles of public policy and regulate the exercise of its power and discretion accordingly.

There have been discussions and debates regarding the scope and limitations of the Court's power under Article 142(1) in relation to statutory provisions. The Court has held that while exercising jurisdiction under Article 142(1), it cannot ignore substantive provisions of a statute that deal with the subject matter and pass orders that can only be settled through the mechanism prescribed in the statute. The Court's power to do complete justice should not supplant substantive law but should be exercised to ensure justice within the framework of the law.

In summary, Article 142(1) of the Constitution of India grants the Supreme Court expansive powers to do complete justice in any cause or matter pending before it. This power is inspired by principles of justice, equity, and good conscience. While the Court has the authority to go beyond strict application of the law, it should exercise this power with caution, ensuring that it does not disregard the substantive mandates of the law or encroach upon the powers of the legislature. The Court's power to do complete justice is an integral part of its decision-making process, aimed at achieving a just and equitable outcome.

2. SECTION 13-B 

Section 13-B of the Hindu Marriage Act provides for divorce by mutual consent. This section lays down the conditions that must be fulfilled for a decree of divorce to be granted on a joint petition by both parties. The critical analysis of this section reveals both its strengths and weaknesses. 

It allows couples who have been living separately for a period of one year or more and have been unable to reconcile to seek divorce by mutual consent. This provision acknowledges the autonomy and agency of individuals in deciding the fate of their marriage and provides a cooling-off period between the filing of the petition and the grant of the divorce decree. This period of six months is intended to provide an opportunity for reflection and reconsideration before finalizing the divorce. It allows the parties to assess the possibility of reconciliation and explore alternatives to divorce. The cooling-off period can be beneficial in preventing hasty and impulsive decisions and encourages couples to make a well-thought-out choice.

However, there are certain weaknesses in Section 13-B that need to be addressed. One of the main criticisms is the mandatory requirement of the second motion after the cooling-off period. This requirement can cause unnecessary delay and prolong the divorce process, especially in cases where the parties have already made up their minds and have no intention of reconciling. It can lead to further emotional distress and financial burden on the parties involved. Moreover, the provision does not explicitly address situations of exceptional hardship where the parties have been involved in acrimonious litigation or multiple legal proceedings. In such cases, the requirement of the second motion may not serve any meaningful purpose and can add to the parties' suffering without any corresponding benefit.

To address these concerns, courts have, in certain cases, waived the cooling-off period and granted a divorce decree without the need for a second motion. This approach recognizes the need to balance procedural requirements with the larger interests of the parties involved. The courts have considered factors such as the duration of the marriage, the length of the ongoing litigation, the parties' efforts at reconciliation, and the existence of a genuine settlement agreement before exercising their discretion to waive the cooling-off period.

In conclusion, while Section 13-B of the Hindu Marriage Act provides a framework for divorce by mutual consent, it has certain shortcomings that can cause unnecessary delay and hardship in certain cases. The provision could benefit from further refinement to ensure that it serves its intended purpose of facilitating the amicable dissolution of marriages while also addressing exceptional situations where the procedural requirements may be waived to achieve a just and timely resolution.

BASIS OF DECISION

under Article 142(1) of the Constitution of India, can grant a decree of divorce based on the complete and irretrievable breakdown of marriage, even if one spouse opposes the prayer for divorce. The analysis primarily focuses on the interpretation of Section 13(1)(i-a) of the Hindu Marriage Act and its relation to Section 23(1)(a) of the same act.

Section 13(1)(i-a) allows for divorce on the ground of cruelty, while Section 23(1)(a) deals with the granting of relief in divorce proceedings. Section 13(1)(i-a) invokes the "fault theory," which means that the court examines the conduct of the parties to determine if one spouse has treated the other with cruelty. However, the term "cruelty" is not explicitly defined in the Hindu Marriage Act, leading to a need for interpretation.

The court references several court cases to provide insights into the understanding of cruelty in divorce cases.

N.G. Dastane v. Dastane, the court held that satisfaction with respect to establishing a fact should be based on a preponderance of probabilities and not beyond a reasonable doubt. The term "cruelty" was defined as wilful and unjustified conduct that endangers life, limb, or mental/physical health or causes a reasonable apprehension of such danger.

V. Bhagat v. D. Bhagat, the definition of cruelty was expanded to include mental and physical cruelty. It was emphasized that cruelty must be assessed based on the specific circumstances, background, and temperament of the parties involved. The court recognized that what may be cruel to one person may not be the same for another and that cruelty is subjective and situation-specific.

Ashok Hurra v. Rupa Bipin Zaveri dealt with the concept of irretrievable breakdown of marriage. Although not a ground for divorce under the Hindu Marriage Act, the court exercised its power under Article 142(1) of the Constitution of India to grant a decree of divorce when the marriage had irretrievably broken down. The court highlighted that prolonging a dead marriage only leads to more emotional and practical suffering for the parties involved.

Naveen Kohli v. Neelu Kohli further discussed the concept of mental cruelty and its difficulty in establishing direct evidence. The court acknowledged that the fault theory, which requires proving guilt, encourages matrimonial offenses and increases bitterness. It argued that when serious attempts at reconciliation fail and the marriage is unworkable and irreparable, divorce should be granted in the best interest of the parties. 

Overall, the case argues against a strict application of the fault theory and advocates for a pragmatic approach that prioritizes the interests and well-being of the parties involved. And provides for evolving understanding of cruelty and the recognition of irretrievable breakdown of marriage in divorce cases. It highlights the subjective nature of cruelty and the need to consider specific circumstances and individual perspectives.

JUDGEMENT

(i) The court discusses the power and jurisdiction of the court under Article 142(1) of the Indian Constitution. It concludes that the court has the authority to deviate from both procedural and substantive laws in order to uphold fundamental general and specific public policy. However, the court should consider the enacted provisions and act as a problem solver by balancing conflicting claims.

(ii) The court addresses whether it can exercise power under Article 142(1) of the Constitution in cases of settlement between the parties, particularly in divorce cases. It determines that the court, in view of a settlement, has the discretion to grant a decree of divorce by mutual consent without following the prescribed procedure under Section 13-B of the Hindu Marriage Act. Additionally, the court can quash and dispose of other connected proceedings under acts like the Domestic Violence Act, Section 125 of the Cr.P.C., or criminal prosecutions such as Section 498-A of the Indian Penal Code (IPC). The exercise of this power should be done cautiously, considering relevant factors outlined in previous judgments.

(iii) The court examines whether it can grant a divorce when there is a complete and irretrievable breakdown of a marriage, even if the other spouse opposes the prayer for divorce. It concludes that the court, under Article 142(1) of the Constitution, has the discretion to dissolve a marriage on the grounds of irretrievable breakdown. This power is exercised to achieve complete justice when the facts demonstrate that the marriage has completely failed and there is no possibility of the parties cohabiting. The court should also consider the circumstances and background of the opposing party.