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CAN A SINGLE BENCH OF THE SUPREME COURT GRANT DIVORCE
BY
MUTUAL
CONSENT?
EXAMINING
CONFLICTING SUPREME COURT ORDERS 1.
ABSTRACT
The question of whether a Single Judge Bench of the Supreme Court can pass a decree of divorce by mutual consent has led to conflicting judicial orders. While some decisions suggest that such power can be exercised in exceptional circumstances, other orders emphasize statutory limits and bench strength requirements. This article examines the legal framework governing divorce by mutual consent, analyzes the conflicting Supreme Court approaches, and highlights the need for doctrinal clarity to ensure consistency and judicial discipline.
2.
INTRODUCTION
Divorce by mutual consent is a statutory remedy that allows parties to dissolve their marriage peacefully. Under Indian law, such divorce is governed primarily by personal law statutes, which prescribe specific procedures and conditions. Normally, matrimonial disputes reach the
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Supreme Court through appeals or transfer petitions, not as original proceedings. However, recent orders have raised an important constitutional and procedural question: Can a Single Judge Bench of the Supreme Court directly grant a decree of divorce by mutual consent? Conflicting orders on this issue have created uncertainty in matrimonial jurisprudence. 3.
LEGAL
FRAMEWORK
FOR
MUTUAL
CONSENT
DIVORCE Under the Hindu Marriage Act, 1955, divorce by mutual consent requires compliance with statutory conditions, including joint consent and prescribed waiting periods. Similar provisions exist under other personal laws. The Supreme Court, while exercising its appellate jurisdiction, generally reviews the legality of lower court decisions. In exceptional cases, it may invoke its extraordinary powers to do complete justice. However, the exercise of such powers must conform to constitutional structure and established judicial norms. 4.
THE EMERGENCE OF CONFLICTING SUPREME COURT ORDERS
In some cases, Single Judge Benches of the Supreme Court have granted divorce by mutual consent, relying on the need to end prolonged and irretrievable marital disputes. These orders often emphasize the consensual nature of separation and the futility of continuing the marriage. In contrast, other Supreme Court orders have taken a restrictive view, holding that granting a decree of divorce—especially by mutual consent—is a substantive relief that requires adherence to statutory procedure and appropriate bench strength. These decisions stress that
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a Single Judge Bench should not exercise powers that effectively bypass legislative requirements. 5.
KEY LEGAL ISSUE
The central issue is whether a Single Judge Bench of the Supreme Court has the jurisdiction and authority to grant a decree of divorce by mutual consent, particularly when such power is not expressly conferred by statute. This issue also raises broader concerns about judicial discipline, consistency, and the limits of extraordinary constitutional powers.
6.
ANALYSIS OF JUDICIAL REASONING
Courts supporting the grant of divorce by a Single Judge often rely on equity and the need to do complete justice between the parties. They emphasize that forcing parties to remain married despite mutual consent serves no purpose. On the other hand, restrictive decisions argue that matrimonial reliefs are statutory in nature and cannot be granted outside the framework laid down by law. Allowing Single Judge Benches to pass such decrees may blur the distinction between original and appellate jurisdiction and lead to inconsistent outcomes. 7.
IMPLICATIONS OF THE CONFLICT
The lack of clarity has practical consequences for litigants. Parties may approach the Supreme Court expecting final relief, only to face uncertainty depending on bench composition. It also affects the predictability of matrimonial law and may undermine confidence in uniform judicial practice.
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From an institutional perspective, conflicting orders raise concerns about precedent, bench strength hierarchy, and adherence to constitutional limits.
