IS RIGHT TO DIVORCE A FUNDAMENTAL RIGHT: CAN SC GRANT DIVORCE UNDER ARTICLE 142 OF THE CONSTITUTION

Whether you are opting for a mutual consent divorce or contesting it, there are a few things about you should know. In this Blog, one will briefly and clearly understand the basic information.

Marriage in India is a festival where two parties celebrate their views sentiments and responsibilities. But, sometimes it does work or perform as it should be and hence the only remedy left is divorce.

GROUNDS OF DIVORCE

Under the Hindu Marriage Act, 1955 there exists following grounds of divorce such as:-

1. Fault Ground under section 13(1) HMA.
2. Breakdown Ground under section 13 (1A) (i), 13 (1A)(ii) HMA.
3. Divorce by mutual consent under section 13B HMA.
4. Customary Divorce under section 29(2) HMA.

IRRETRIEVABLE BREAKDOWN GROUND (IBM)

1. Under Hindu Marriage Act 1955, section 13(1A) a husband or wife can file a petition for divorce, where either of the party finds no cohabitation between them for a marriage period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.
2. No restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

WHICH COURT TO APPROACH FOR DIVORCE.

1. The initial jurisdiction lies upon the family court but as family courts are filled with numerous cases just like any other case divorce case takes time to be disposed off. It generally takes 18-24 months is the usual time taken by the court to grant a decision on divorce. Also, the time is affected to get divorce completely depends upon the nature of case and the court.
2. To cut short the time limit one can also file to the supreme court under section 142 to exercise the proceedings.

SHOULD RIGHT TO DIVORCE BE A FUNDAMENTAL RIGHT

Well if the right to marry is a fundamental right, which is covered under the right to form affiliations. If a person has the right to enter into a marriage, then they have the right to exit from the marriage. ‘Irretrievable breakdown of marriage’ (IBM) is a consequence of something that might have happened during the marriage. Hence it can be inferred as a ground for divorce under the HMA, and divorce on this basis would not be contrary to any law.

CAN SC GRANT DECREE OF DIVORCE

Only when:-

1. It must not violate anybody’s fundamental rights.
2. It should not be contrary to any law.
3. Using Article 142 to grant divorce will not violate the fundamental rights of the parties involved and will not be contrary to any law.
4. The Family Court and High Court can dissolve a marriage only if a ground for divorce is specifically mentioned in the petition; however the Supreme Court under Article 142 isn’t restricted to the grounds mentioned. The Supreme Court could look at broad factors such as consent by both the parties to divorce and their failure to reconcile the relationship to dissolve a marriage under Article 142.

Therefore, the Supreme Court invokes Article 142, it is only bound by the provisions of the constitution and no other law. Hence, the court could use the provision to grant divorce when there is irretrievable breakdown ground (IBM).

HOW DIVORCE LAWYER AT THE LAW OFFICE OF G.S BAGGA AND ASSOCIATES HELP YOU?

1. We help in making our clients understand and explain the grounds for divorce and save from fault grounds.
2. We ensure our clients emotional state by providing support with legal factors to secure our clients future and custody issues.
3. We help is maintaining the localassets, collect records, liabilities o that the divorce settlement is addressed.
4. We ensure that our clients receive the share of property that the marriage has brought in.
5. We help in protecting our clients from any debt that is owed to the other spouse.
6. We provide great assistance while preparing the papers for divorce with all the essentials and information required.
7. We assist our clients preparing a custody plan/parenting plan which will fulfill the need of the child and the parents.
8. We provide great litigation skills for our clients case to resolve disputes regarding maintenance, child custody etc.
9. We ensure our best in winning the case for our clients.
10. We ensure that our clients are taken care of every need and provide the justice that they want.

We are always happy and ready to assist you in your hard time.

We are just a call away!

Please do not hesitate to contact us at 9213782334 or email us at [email protected] or leave a query at our website: www.gsbagga.com or our assistance.

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