New Delhi [India], September 29 (ANI): The Supreme Court on Thursday reserved its judgement on the issue of whether it could exercise its vast powers under Article 142 of the Constitution to dissolve marriages between two parties even when one of the parties does not consent.
"Arguments concluded. Judgement reserved," said a five-judge Constitution bench headed by Justice Sanjay Kishan Kaul.
The bench comprising Justices Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari to decide whether it could exercise its powers under Article 142 to dissolve a marriage, what were the broad parameters to exercise such power, and whether the invocation of such extraordinary powers was allowed in the absence of the mutual consent of the parties.
It will also look at whether it can exercise its powers under Article 142 of the Constitution to dissolve marriages between consenting couples without referring them to family courts.
Article 142 of the Constitution deals with the enforcement of decrees and orders of the apex court to provide "complete justice" in just about any case before it.
Senior advocate Indira Jaising, who is assisting the court as amicus curiae, said that courts could "at best attempt a reconciliation in the public interest", but not force two autonomous people who had voluntarily entered a union to stay together despite their irreconcilable differences.
Senior advocate Dushyant Dave also assisting the court said Supreme Court was not justified in exercising its powers under Article 142 to dissolve marriages since the Parliament had in its wisdom vested the power in district courts and prescribed an appropriate procedure for it.
In 2016, a two-judge bench passed the order to refer two questions for the consideration of the Constitution bench. The first question was, "What could be the broad parameters for the 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."
Section 13-B provides for divorce by mutual consent and a mandatory period of 6 to 18 months is prescribed from the time of presentation of an application for divorce to give sufficient time for the parties to reflect on their decision.
The second question referred to by the five-judge bench was "whether the exercise of such jurisdiction under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case." (ANI)