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Can it grant divorce without both-party consent? Supreme Court to vet | India News

NEW DELHI: After exercising its omnibus powers under Article 142 of the Constitution for the past 26 years to annul irretrievably broken marriages, the Supreme Court on Tuesday agreed to examine whether it could grant divorce to estranged couples without both partners consenting to annulment of marriage.
A bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari said though the omnibus powers under Article 142 has been conferred only on the SC to do complete justice in a case that required exercise of such powers, it is worth examining whether there should be some guidelines, procedure or inhibition in this regard.
Amicus curiae V Giri informed the court that the SC in its June 29, 2016, order had referred the issue to a five-judge bench and framed two questions — what could be the broad parameters for exercise of powers under Article 142 to dissolve a marriage between consenting parties without referring the parties to a Family Court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act; and whether the exercise of such jurisdiction should not be made at all or whether such exercise should be left to be determined in the facts of every case.
Giri said the then attorney general Mukul Rohatgi had on April 22, 2015, added two more questions in his written submissions, which included whether the exercise of powers under Article 142 would be exclusive of the procedure provided for divorce under provisions of the Hindu Marriage Act.
Justice Kaul-led bench said, “We do believe that another question which would require consideration would be whether the power under Article 142 of the Constitution of India is inhibited in any manner in a scenario where there is an irretrievable breakdown of marriage in the opinion of the court but one of the parties is not consenting to the terms.”
In the 2016 order, the SC had appointed senior advocate Giri, Indira Jaising, Dushyant Dave and Meenakshi Arora as amici curiae. The SC posted the matter for further hearing on September 28.

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