Nature of allegations, attempts to settle and more: Factors to determine irretrievable breakdown of marriage laid down by Supreme Court

The Supreme Court on Monday outlined some of the factors that can be taken into consideration which would indicate irretrievable breakdown of marriage, so as to grant divorce between consenting parties under Article 142 of the Constitution. [Shilpa Sailesh v. Varun Sreenivasan].Article 142 empowers the apex court to pass decrees and orders which are necessary for "doing complete justice" in any cause or matter pending before it.A Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari held that the top court can exercise such plenary powers to grant a decree of divorce to consenting parties, in cases of irretrievable breakdown of marriage.The Court made it clear that grant of divorce on the ground of irretrievable breakdown of marriage is not a matter of right, but a discretion to be exercised cautiously."It is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established.". The factors listed in the judgment are:1. The period of time the parties had cohabited after marriage; 2. When the parties had last cohabited; 3. The nature of allegations made by the parties against each other and their family members; 4. The orders passed in the legal proceedings from time to time, and their cumulative impact on the personal relationship; 5. Whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. 6. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. .The Court explained that the said factors have to be evaluated keeping in mind the economic and social status of the parties, and whether the parties have any children, their age, educational qualification and whether the other spouse and children are dependent etc."Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations," the judgment said. The bench stated that it does wish to explicitly codify the above factors, lest it curtail the exercise of powers under Article 142(1) of the Constitution in a specific situation."Some of the factors mentioned can be taken as illustrative, and worthy of consideration.".The verdict came in a batch of petitions concerning the use of the top court's plenary powers to dissolve a marriage between consenting parties without referral to family courts to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act.The issues involved were whether the Supreme Court could exercise its powers under Article 142 of the Constitution to dissolve a marriage, the broad parameters of such powers and whether the invocation of the said power was allowed in the absence of the mutual consent of the parties..[Read Judgment]