The arguments will continue on dissolution of marriage on Thursday.
The Supreme Court Wednesday commenced hearing arguments to decide broad parameters for exercising its vast powers under Article 142 of the Constitution to dissolve marriages between consenting couples without referring them to family courts.
It will also look at whether its sweeping powers under Article 142 are inhibited in any manner in a scenario where a marriage has irretrievably broken down but one of the parties is resisting divorce.
Article 142 of the Constitution deals with the enforcement of decrees and orders of the top court to provide "complete justice" in just about any case before it.
A five-judge Constitution bench headed by Justice S K Kaul observed that under the Hindu Marriage Act, the divorce is based on fault theory but the irretrievable breakdown of the marriage could be a ground reality of the situation.
In fault theory of divorce, one of the spouses requests the court that divorce be granted because of some fault of the other spouse.
"Two very good people may not be good partners," said the bench, which also comprised Justices Sanjiv Khanna, A S Oka, Vikram Nath, and J K Maheshwari.
"Sometimes we have come across cases where people have even lived together for a considerable period of time and then marriage breaks down," it said.
Senior advocate Indira Jaising, who is assisting the court as amicus curiae, said generally there are allegations and counter allegations when a divorce petition is filed.
On the issue of fault theory, Justice Kaul observed, "This is also, to my mind, very subjective. What is a fault theory?".
"See, somebody may say there are allegations made, she does not get up in the morning and give my parents tea. Is it a fault theory? You could have done the making of the tea better, maybe," he observed.
The bench observed a lot of disputes arise from the "social norm", where one thinks that the lady must do this or the gentleman must do this.
"And from there we attribute fault. This is another concern that I have that what we attribute is fault is not really a fault but it is understanding of a social norm (as to) how a particular thing ought to be done," Justice Kaul observed.
He said these norms are rapidly changing and this is the ground reality.
Ms Jaising noted that is why the top court had earlier held that public policy is not frozen in time. The bench wanted to know whether in a divorce proceeding must a fault be attributed to somebody. Justice Kaul said he has seen cases where the man was resisting divorce even when the woman did not want anything from him as she had a better capacity to earn and was in a better position.
The arguments will continue on Thursday.
Two questions, including whether the exercise of such jurisdiction by the SC 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, were earlier referred to a constitution bench.
One of the questions, which has been referred, is -- 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. On September 20, the top court had 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."
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