SC: If one side is not willing then no divorce under Article 142, marriage not casual in India

The Supreme Court has said that it would not use its power under Article 142 to annul a marriage, when the wife is willing to give the marriage one more "try", however the husband claimed an irretrievable breakdown of marriage.

A bench comprising Justices Sanjay Kishan Kaul and Abhay S. Oka was informed that the couple stayed together only for 40 days and they have been living separately for almost two years now. Emphasizing that marriage is not a casual event in India, the bench said, "we have not reached western standards of marriage today and divorce tomorrow".

Declining to annul the marriage on husband's plea, the bench said the powers under Article 142 cannot be exercised to annul the marriage when one party is unwilling. The bench noted that the couple were highly educated -- husband ran an NGO and the wife had permanent residence permission in Canada, and added the couple should make efforts to resolve the differences.

The wife informed the top court she left everything in Canada to marry the man, however the husband insisted on a direction to annul the marriage.

The top court was hearing a transfer petition filed by a wife seeking to save her marriage. The husband sought to quash the transfer petition citing irretrievable breakdown of marriage and insisted that marriage is not working. The wife said she had been working in Canada and came to India during the Covid-19 lockdown for her husband.

The husband submitted that he intends to live with his elderly parents but his wife is having a Canadian perspective and insisted on not living with the parents. The bench told the husband that he married somebody who is living in Canada, and then he asked her to wind up everything and come here.

The bench said this is not a case where it can suo motu exercise 142 and it is very difficult to record a satisfaction that there's a total breakdown of marriage unless both parties say there's a breakdown of marriage.

The top court urged the couple to go for mediation proceedings. It appointed a former Punjab and Haryana High Court judge as mediator and allowed him to take assistance of a marriage counsellor and sought a report in three months.