Understanding Article 142 and the Debate Over the Supreme Court's Power to Grant Divorces

The Supreme Court of India is currently deliberating on a case concerning its powers under Article 142 of the Indian Constitution to grant divorces. This case has significant implications for divorce laws in India and for the separation of powers between the judiciary and the legislature.

Article 142 of the Indian Constitution empowers the Supreme Court to pass any order necessary to do "complete justice" in any matter pending before it. In recent years, the Supreme Court has used its powers under this article to grant divorces in cases where personal laws are inadequate or discriminatory.

However, some legal experts have argued that the use of Article 142 to grant divorces undermines the principle of separation of powers between the judiciary and the legislature. They argue that divorce laws should be formulated by the legislature and not by the judiciary, as the legislature is better equipped to consider the social, cultural, and economic implications of divorce laws.

The case currently before the Supreme Court concerns a woman who is seeking a divorce from her husband on the grounds of mental cruelty. The couple was married in 2012 and has been living separately since 2014. The woman filed for divorce in 2015, but her husband has refused to grant her a divorce.

The woman's lawyers have argued that the Supreme Court should use its powers under Article 142 to grant her a divorce, as the personal laws governing her marriage do not provide for divorce on the grounds of mental cruelty. They argue that this is necessary to ensure that justice is done in the case, given the woman's suffering and the lack of legal recourse available to her.

Opponents of the use of Article 142 to grant divorces argue that this undermines the principle of separation of powers and could lead to the judiciary encroaching on the legislature's authority to formulate divorce laws. They argue that divorce laws should be formulated by the legislature after due consideration of the social, cultural, and economic implications of divorce.

Source: https://twitter.com/barandbench

The Supreme Court's decision, in this case, is eagerly awaited, as it could have significant implications for divorce laws in India and for the balance of power between the judiciary and the legislature. While the use of Article 142 to grant divorces has been controversial, many argue that it is necessary to ensure that justice is done in cases where personal laws are insufficient or discriminatory. Ultimately, the Supreme Court's decision will have far-reaching consequences for divorce law in India and for the relationship between the judiciary and the legislature.

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